Kaiser

MEMORANDUM ***

Plaintiffs Gary L. Kaiser and Verlene *674 Kaiser owned and operated plaintiff Community Home Health, Inc. (“CHH”), a firm that provided home health care services to Medicare recipients in Idaho until it went out of business in 1998. Plaintiffs claim CHH was forced to close because of the actions of defendant Blue Cross of California (“Blue Cross”) — the “fiscal intermediary” that made Medicare reimbursement payments on behalf of the federal government to CHH — and defendant the United States. Plaintiffs brought various constitutional, statutory, and common law claims against defendants in federal district court.

These same plaintiffs brought these same claims in district court in 2000; the district court dismissed the claims because plaintiffs had failed to exhaust their administrative remedies. We affirmed, holding all of plaintiffs’ claims were subject to the statutory exhaustion requirement of the Medicare Act, 42 U.S.C. § 405 (h) (made applicable by 42 U.S.C. § 1395ii). Kaiser v. Blue Cross of Cal., 347 F.3d 1107 (9th Cir.2003).

Plaintiffs then attempted to exhaust their claims before the Department of Health and Human Services (“DHHS”). The DHHS Provider…