NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 18 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PINNACLE PEAK NEUROLOGY, LLC, No. 18-15570

Plaintiff-Appellant, D.C. No. 2:16-cv-03614-DJH

v.

MEMORANDUM*

NORIDIAN HEALTHCARE SOLUTIONS,

LLC,

Defendant-Appellee.

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). 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

2 “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

3 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.

4