U.S.C. §§ 403(d) and (g)(1), but which were withheld under certain provisions of that Act which plaintiffs claimed violated the fifth amendment. Despite the plaintiffs' assertion of the constitutional claim, which would ordinarily have provided a basis for general federal jurisdiction under § 1331, the Court construed the third sentence of § 405(h) as barring such jurisdiction.
Facially, one would have to conclude that the same result should obtain in a Medicare Act context, as here, and courts have so held. Hazelwood Chronic and Convalescent Hospital, Inc. v. Weinberger, 543 F.2d 703 (9th Cir. 1976), Vacated and remanded, 430 U.S. 952, 97 S. Ct. 1595, 51 L. Ed. 2d 801 (1977)7a; South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976). Hazelwood, however, found subject matter jurisdiction under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 701, Et seq., notwithstanding Salfi ; and South Windsor found, in a case also involving the Recapture Regulation, that exclusive jurisdiction rested in the Court of Claims under 28 U.S.C. §§ 1346 and 1491, which latter section "is not included in "section 41 of Title 28.' " 541 F.2d at 914 (thus rendering inapposite Salfi's construction of the third sentence of § 405(h)).
The Hazelwood approach is no longer viable. Califano v. Sanders, supra, made that clear. South Windsor, Where the Secretary had apparently urged the view the Court of Appeals adopted, has undergone no such destruction.
While it is true, as both sides now argue, that a serious constitutional question would arise were Congress to close the federal courts entirely to constitutional challenges of federal statutes or actions, See Salfi, 422 U.S. at 762, 95 S. Ct. 2457, South Windsor's holding saves us this concern.
Accordingly, I must hold I lack subject matter jurisdiction over the Recapture Regulation claim and the complaint, to that extent, is dismissed, without prejudice to plaintiff's proceeding with its suit in the Court of Claims.
Turning to the other aspects of plaintiff's claim, it asserts it was injured by the defendants' rejection in part of sums it claimed for physiotherapy and owners' compensation. Plaintiff urges that under 20 C.F.R. § 405.451(c)(2) (1977) it was "entitled to be reimbursed for the actual cost (unless unreasonable) for the services of a qualified physical therapist"; that the price paid for his services was reasonable, reached after arm's length negotiations; and not out of line with prevailing rates for physical therapists in the area; and that the Secretary's establishment of "reasonable fees" for such extended care services do not comport with the going rate available to plaintiffs.
In sum, plaintiffs here are simply challenging the Secretary's "reasonable cost" determination. 20 C.F.R. § 405.451(c)(2).
Accordingly, this court lacks jurisdiction to review plaintiff's claim relating to the Secretary's "reasonable cost" determination with respect to their charges for physiotherapist fees. 42 U.S.C. § 405(h); Salfi, supra ; and, since it is not a constitutional claim which is thus raised, there is no such concern about preclusion of judicial review as was raised in connection with the Recapture Regulation issue. Even if there were, however, the plaintiff has open to it the Court of Claims.
Plaintiff's claim regarding owners' compensation amounts to no more than a disagreement with the Secretary's findings and decisions. No constitutional claim is asserted. See Amended Complaint, Fourth and Fifth Counts.
Thus, the essence of plaintiff's claim here is that "defendants allowed . . . compensation . . . amounts which are totally inadequate."
On such claim, it seeks no more than judicial review, that is, that "(t)he accounts allowed by defendants are so unreasonable and unsupported by facts as to require adjustment by this court." Additionally, it demands, as alternate relief, a remand "to the Secretary for a hearing on the amount of compensation to be awarded."
Accordingly, this court lacks jurisdiction to review the Secretary's findings and decision on the amount of owners' compensation reimbursable to plaintiffs, for the same reasons hereinabove set forth as to physiotherapy compensation.
Were I to have retained jurisdiction, I would have upheld the constitutionality of the Recapture Regulation, under the rationale of Hazelwood and Springdale Convalescent Center v. Mathews, 545 F.2d 943 (5th Cir. 1977).
Insofar as the physiotherapy and owners' compensation claims are concerned, plaintiff is not entitled to a trial De novo, as it claims. Had I found subject matter jurisdiction as to these claims, I would have concluded that, on the record as a whole, there was substantial evidence to support the defendants' determination.
Essentially, both aspects of these two claims are founded upon a reading of the law and regulations which differ from the Secretary's. The defendants do not dispute that the plaintiff paid its physiotherapist what it claims. They simply take the position that this is not conclusive on "reasonable cost." I find that the defendants appropriately and properly applied the apposite regulations, including 20 C.F.R. § 405.451(c)(2), and that they are supported by the record.
As to the owner's compensation, the defendants here as well had in the record the requisite substantiality of evidence to support their finding. The fact of other employment, the number of hours spent, availability, work capacity, all these were, from the record, considered, and I cannot conclude that there was insufficient support, as I have defined the standard, for the defendants' decision.
An order will be entered with the filing of this opinion.