¶¶ 4, 5, 7, Attachments 3, 4, 5). Under those sections, Congress mandated that SSA “shall immediately redetermine the entitlement of individuals to monthly insurance benefits . . . if there is a reason to believe that fraud or similar fault was involved in the application of the individual for such benefits . . . .” 42 U.S.C. § 405(u)(1)(A) (emphasis added); see also 20 C.F.R. § 1383(e)(7)(A)(i). That Congress intended there to be a distinction between redeterminations and reopenings is supported by the fact that Congress was well aware of the Case: 7:16-cv-00035-JMH Doc #: 30 Filed: 08/23/16 Page: 14 of 16 - Page ID#: 889 15 agency’s reopening rules but chose not to call the review under sections 205(u) and 1631(e)(7) a “reopening” of the prior decision but a “redetermination,” and also by the legislative history, which shows that Congress enacted sections 205(u) and 1631(e)(7) precisely because it believed that the reopening rules were “cumbersome and unworkable” in addressing cases of fraud in applications for benefits.

As sections 205(u) and 1631(e)(7) of the Act make clear, Congress wanted SSA to expeditiously terminate benefits whenever there is reason to believe that benefits were obtained fraudulently, and accordingly mandated that the agency “immediately redetermine the entitlement of individuals . . . if there is reason to believe that fraud or similar fault was involved in the application of the individual for such benefits.” 42 U.S.C. § 405(u)(1)(A); see also 42 U.S.C. § 1383(e)(7)(A)(i). The public interest lies in permitting SSA to follow the redetermination process that Congress has required.

Applying Florida law, it held that Mrs. Reale was required to repay only $3,685.03 of the Medicare benefits in question.58 Humana has appealed the trial court's decision, which threatens to undermine Congress's decision to give exclusive control over the Medicare program to the Secretary, who implements the Medicare Act and adjudicates all disputes arising under it, and federal courts, which review the Secretary's final decisions on the record established during administrative review.59 As it did in the trial court, Humana pointed to the extensive and unanimous body of federal decisional law holding that, under § 405(h), Medicare beneficiaries may not challenge MSP determinations without exhausting the Medicare appeals process; only after exhaustion may they challenge these detemiinations in federal court in suits against the Secretary.° In response, Reale and her counsel cited no decision to the contrary, except for the trial court's own remarkable decision 56 SUMF, Exh. 9, State Court Compl. ¶¶ 11, 14. 57 See, e.g., Hadden v. United States of America, 661 F.3d 298 (6th Cir. 2011); Zinman v.Shalala, 67 F.3d 841 (9th Cir. 1995); In re Zyprexa Prods. Liab. Litig., 451 F. Supp. 2d 458, 469 (E.D.N.Y. 2006).

More importantly, as discussed above, the Medicare Act expressly precludes judicial review under section 1331. 42 U.S.C. § 405(h); see also Your 4:07-cv-04053-JBM-JAG # 5 Page 8 of 12 9 Home Visiting Nurse Servs. v. Shalala, 525 U.S. 449, 456 (1999); Ringer, 466 U.S. at 615.

OF COUNSEL: Nora Koch, Regional Chief Counsel, Region III Katie Gaughan, Assistant Regional Counsel Office of the General Counsel Social Security Administration 2 To the extent that Plaintiff wished to appeal the denial of his Title II disability insurance benefits (DIB) application, he should have done so in an appropriate separate civil action pursuant to 42 U.S.C. § 405(g), not through this action involving an alleged “cover-up” plot by multiple unrelated defendants. Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 7 of 8 CERTIFICATE OF SERVICE

Page 27 of 29 (quoting Heckler, 466 U.S. at 614-15); see also Jamaica Hosp. Nursing Home, 2000 U.S. Dist. LEXIS 13917, at *6 (holding that judicial review is available only for "final decisions," and "[a] decision is only final after one has exhausted the administrative review process set forth in the applicable regulations"). "[T]he courts do not have jurisdiction over any action arising under the Medicare Act that does not meet the requirements of [42 U.S.C.] § 405(g)." Jamaica Hosp. Nursin Home, 2000 U.S. Dist. LEXIS 13917, at *7; see also Plotts, 897 F. Supp. 2d at 191-93.

Judicial relief for actions arising under the Medicare statute may be sought only against the Secretary, and not against the contractors that assist in the administration of the Medicare program, because the Secretary alone is responsible for the administration of the program and thus is the real party in interest. See 42 U.S.C. §§ 405(g)-(h), 1395ii; see also Bodimetric Health Servs., v. Aetna Life & Cas., 903 F.2d 480, 487 (7th Cir. 1990) (holding that suits against contractors are governed by 42 U.S.C. § 405(h) because the real party in interest is HHS). MACs, such as Noridian, carry out the Secretary’s direction, which she gives through regulation and agency guidance.

& Supply, Inc. v. TriCenturion, Inc., 694 F.3d 340,349 (3d Cir. 2012) (quoting Cathedral RockofN. College Hill, Inc. v. Shalala, 223 F.3d 354, 359 (6th Cir. 2000), and Ringer, 466 U.S. at 617); Bird, 315 F. Supp. 2d at 372-73 (holding that 42 U.S.C. § 405(h) precluded 28 U.S.C. § 1331 jurisdiction over the beneficiary's declaratory judgment action regarding MSP claims, which arose under the Medicare Act). As a result, "an indispensable prerequisite for federal subject matter jurisdiction" is a final agency action, which, in this context, arises by the presentment of a claim to the Secretary and exhaustion of the HHS administrative procedure.

Case No. 8:15-cv-01677-DOC-KES [PROPOSED] JUDGMENT [Notice of Motion, Memorandum of Points and Authorities, and Statement of Uncontroverted Facts and Conclusions of Law submitted concurrently] Hearing date: September 26, 2016 Time: 8:30 AM Place: Courtroom 9D Judge: Hon. David O. Carter On September 26, 2016 at 8:30 AM, in Courtroom 9D of the above-entitled Court, located at 411 West Fourth Street, Santa Ana, CA 92701-4516, plaintiff CAIR MEDICAL, INC. (“Cair Medical”), sought judicial review of the final agency action of defendant SYLVIA MATHEWS BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services (“Burwell”). See 42 U.S.C. § 1395ff(b)(1)(A); 42 U.S.C. § 405(g). On August 14, 2015, Burwell’s final agency action ultimately reversed a fully Case 8:15-cv-01677-DOC-KES Document 22-2 Filed 07/11/16 Page 1 of 2 Page ID #:379 [PROPOSED] JUDGMENT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 favorable Administrative Law Judge’s (“ALJ”) decision that allowed approximately $3,678.65 in reimbursement to Cair Medical under the Medicare Program.

2 See Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir. 1984) (“Because the district courts have no factfinding role, in Social Security cases [arising under Section 405(g)], those cases are ordinarily disposed of on cross motions for summary judgment made presumably under Fed. R. Civ. P. 56 (a), (b).”); see also Mathews v. Weber, 423 U.S. 261, 270 (1976) (judicial review under Section 405(g) involves “a closed administrative record,” and “neither party may put any additional evidence before the district court”); Grant v. Shalala, 989 F.2d 1332, 1338 (3d Cir. 1993) (describing judicial review under 42 U.S.C. § 405(g) as “circumscribed”). Case 5:16-cv-01148-EGS Document 17 Filed 07/08/16 Page 5 of 25 4 Because McCambridge does not designate probative, specific facts in the administrative record that satisfy his burden of showing that the Secretary’s relevant findings were not supported by substantial evidence or were not based on application of correct legal standards, he cannot carry his summary judgment burden, and summary judgment should be entered in the Secretary’s favor as a matter of law.