Pinnacle Peak Neurology, LLC v. Noridian Healthcare Solutions, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PINNACLE PEAK NEUROLOGY, LLC,
Plaintiff-Appellant,
v.
NORIDIAN HEALTHCARE SOLUTIONS,
LLC,
Defendant-Appellee.
No. 18-15570
D.C. No. 2:16-cv-03614-DJH
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted June 11, 2019**
Anchorage, Alaska
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
Pinnacle Peak Neurology, LLC (“PPN”) appeals from the district court’s
dismissal for lack of subject matter jurisdiction of its claims seeking payment for
the provision of Medicare benefits from Noridian Healthcare Solutions, LLC. PPN
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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argues that it did not need to administratively exhaust its claims for Medicare
payments, that it has already done so, and, in the alternative, that the exhaustion
requirement should be waived in this case. We affirm.
42 U.S.C. § 405(g) provides the “sole avenue for judicial review for all
‘claim[s] arising under’ the Medicare Act.” Heckler v. Ringer, 466 U.S. 602, 614-
15 (1984) (alteration in original); see also 42 U.S.C. §§ 205(h), 1395ii. Under that
provision, judicial review is available only after a “final decision” of the Secretary
of Health and Human Services (“Secretary”), id. § 405(g), which requires
satisfaction of two elements:
The waivable element is the requirement that the administrative
remedies prescribed by the Secretary be exhausted. The nonwaivable
element is the requirement that a claim for benefits shall have been
presented to the Secretary. Absent such a claim there can be no
“decision” of any type.”
Mathews v. Eldridge, 424 U.S. 319, 328 (1976); see also Shalala v. Ill. Council on
Long Term Care, Inc., 529 U.S. 1, 15, 26 (2000); Kaiser v. Blue Cross of Cal., 347
F.3d 1107, 1115 (9th Cir. 2003).
1. PPN’s claims “arise under” the Medicare Act such that it must meet the
requirements of § 405(g) to obtain judicial review of those claims. The Supreme
Court has interpreted the term “arising under” in this context “quite broadly” to
include (1) any claim in which “both the standing and the substantive basis for the
presentation” of the claim is the Medicare Act; and (2) any claim that is

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“inextricably intertwined” with a claim for Medicare benefits. Heckler, 466 U.S. at
614-15.
PPN’s claims are in essence a claim for Medicare benefits. At bottom, PPN
disputes Noridian’s calculations of payment amounts effectuating the ALJ’s
decision regarding coverage determinations and related coding findings. The relief
PPN seeks is “compensation th[at] [it] should have received for the services it
provided to Medicare beneficiaries.” Kaiser, 347 F.3d at 1114. And adjudication of
the merits of PPN’s claims would require the district court not just to enforce the
ALJ’s decision, but to conduct a benefit calculation to determine whether
Noridian’s payment calculations made to effectuate the ALJ decision are correct.
See Do Sung Uhm v. Humana, Inc., 620 F.3d 1134, 1142–43 (9th Cir. 2010)
(“[W]here, at bottom, a plaintiff is complaining about the denial of Medicare
benefits . . . the claim ‘arises under’ the Medicare Act.”).
2. PPN has neither presented its claims to the Secretary nor exhausted available
administrative avenues as required by § 405(g). The Medicare Act establishes four
levels of administrative review of an “initial determination” limiting payment of a
provider’s claim. 42 U.S.C. § 1395ff; 42 C.F.R. § 405.904(a)(2). PPN argues that it
exhausted its claims because it is only seeking judicial enforcement of the ALJ
decision, which it claims became final after Noridian failed to appeal the decision.
However, the ALJ decision is not the decision at issue; Noridian’s payment

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calculation effectuating the ALJ decision is. The ALJ decision only made coverage
determinations and related coding findings relevant to the calculation of payments.
It did not specify any amount of money that Noridian was to pay PPN. After the
ALJ issued its decision, Noridian independently calculated the payments due to
PPN. “The amount of payment determined by the contractor in effectuating the
ALJ’s or attorney adjudicator’s decision is a new initial determination” for such
purposes. 42 C.F.R. § 405.1046(a)(3) (emphasis added). PPN does not contest that
it has neither presented to the Secretary nor exhausted Noridian’s initial
determination regarding its payment calculations.1
AFFIRMED.
1 We do not consider whether the district court erred in denying PPN waiver of its
exhaustion requirement because, even if it did, PPN has not met the presentment
requirement, which cannot be waived. See Mathews, 424 U.S. at 328.

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