behalf a hospital is suing. Under 42 U.S.C. § 1395pp(d), a hospital has only those rights of review as an individual possesses, and if an individual may not obtain review of a claim a hospital may not obtain a review of such claim by simultaneously seeking review of other non-reviewable claims.
It is well settled that federal district courts possess only the jurisdiction which Congress has conferred upon them. South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966); Glidden Co. v. Zdanok, 370 U.S. 530, 551, 82 S. Ct. 1459, 1473, 8 L. Ed. 2d 671 (1962); cf. Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975). Therefore, the court in Simoncelli v. Weinberger, 418 F. Supp. 87 (E.D.Pa.1976), held that judicial review was not available for Part B reimbursement claims pursuant to 42 U.S.C. § 1395ff which makes no provision for review of those claims. If Part B claimants have no right to judicial review at all, a monetary limit on the availability of Part A review which is rationally justified is clearly constitutional. Rubin v. Weinberger, 524 F.2d 497 (7th Cir. 1975); Cf. United States v. Kras, 409 U.S. 434, 446-47, 93 S. Ct. 631, 638-639, 34 L. Ed. 2d 626 (1973); Dandridge v. Williams, 397 U.S. 471, 484-85, 90 S. Ct. 1153, 1161-1162, 25 L. Ed. 2d 491 (1970). The Senate Report states, "the remedies provided by these review procedures shall be exclusive". S.Rep.No.404, 89th Cong., 1st Sess., 55 (1965) (U.S.Code Cong. & Admin.News, p. 1995).
It is well established that plaintiffs with separate and distinct claims cannot aggregate their claims in order to establish the jurisdictional amount for access to the federal courts, Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969). In the present case, where the hospitals are suing in the right of individual patients, the hospitals cannot aggregate these individual claims to reach the jurisdictional amount. Therefore, the two actions filed by Point Pleasant (Civil No. 79-581 on behalf of Skiba and Civil No. 78-3149 on behalf of Darmstadt, Dattilo and Litzebauer) will be dismissed for lack of jurisdiction, and those portions of the Monmouth complaints seeking to review the actions of the Secretary denying reimbursement on account of patients Gaffey, Hennessy and Van Nest shall be stricken.
B. The Custodial Care Exclusion : It must be determined whether the remaining claims for reimbursement are barred by the language of 42 U.S.C. § 1395y(a)(9) which prohibits payments where the hospital's expenses are for "custodial care".
Were it not for that exclusion, the hospitals would have been entitled to reimbursement, even though the level of care provided the patients required a lesser degree of skill than that normally provided by an acute care institution. The Medicare statute provides benefits for "inpatient hospital services", 42 U.S.C. § 1395d(a)(1), for a length of stay which was not exceeded by any of the patients in the present case. Even when the patients no longer needed skilled medical services and required only bed and board from the hospital, they were receiving inpatient hospital services as defined by the statute, 42 U.S.C. § 1395x(b). The conditions for payment imposed by the statute, (i) physician certification of the medical necessity of inpatient services, 42 U.S.C. § 1395f(a)(3), and (ii) utilization review committee confirmation of such need, 42 U.S.C. § 1395f(a)(6) and (a)(7), were met. The basis of the physician's certification and of the committee's review was, of course, the conclusion that even though in each case the patient did not require the kind of skilled care a hospital is designed to provide, it was medically necessary to keep the patient in the hospital because there was no available institution which could provide the lower level of care the patient still needed.
There is no question that the hospital was acting responsibly and in the best interests of its patients when it kept these patients in the hospital while it searched for a facility which would receive them and provide the necessary care.
The language of 42 U.S.C. § 1395y(a)(9), however, is precise:
(a) Notwithstanding any other provision of this subchapter, no payment may be made under part A or part B of this subchapter for any expenses incurred for items or services
(9) where such expenses are for custodial care.