The opinion of the court was delivered by: Tauro, J.
This action concerns a challenge by Dynamic Visions and Chief Bongam ("Plaintiffs") to a determination of Kathleen Sebelius, the Secretary of Health and Human Services ("Secretary"), that terminated the Medicare provider agreement of Dynamic Visions Home Health Services, Inc. ("Dynamic Visions"). The Defendants are the Secretary and the U.S. Attorney General Eric H. Holder (collectively, "federal Defendants"), and Massachusetts Attorney General Martha Coakley ("state Defendant").*fn1 Presently at issue are two unopposed motions to dismiss, the federal Defendants' Motion for Dismissal for Lack of Subject Matter Jurisdiction [#21] and the state Defendant's Motion to Dismiss for Lack of Subject-Matter Jurisdiction [#23]. For the following reasons, both Motions are ALLOWED.
Plaintiffs bring this action in response to the termination of Plaintiff Dynamic Visions as a Medicare provider.*fn3 Initially, Plaintiffs allege that "[t]his is a Federal Question case."*fn4 Plaintiffs contend that the "Department of Health and Human Services has not explained properly, . . . since within ten days of it proposed [sic] terminating this business, to tell our office just what current requirements of the act . . . , what literally has to be done now, in a 90 day time period, to correct these alleged violations [sic]."*fn5
A. The Medicare Act and Implementing Regulations Created under the Medicare Act,*fn6 the Medicare program is a national program of health insurance for aged and disabled people that is administered by the Secretary through Centers for Medicare and Medicaid Services.*fn7 An entity that provides certain health care services can become eligible for payments under the program if it has in place a provider agreement and meets a range of health, safety, and administrative requirements.*fn8
The Secretary "may refuse to renew or may terminate" a Medicare provider agreement with a provider.*fn9 A provider may seek judicial review of such a decision by the Secretary only after exhausting administrative remedies.*fn10 To exhaust administrative remedies under the Medicare Act, a dissatisfied provider must first seek review before an Administrative Law Judge ("ALJ").*fn11 If the provider is dissatisfied with the ALJ's decision, the provider may then seek appellate review before the Departmental Appeals Board ("DAB").*fn12 If the provider is then dissatisfied with the decision of the DAB, or the DAB declines to review, the provider may then, and only then, seek judicial review.*fn13
Indeed, any claim "arising under" the Medicare Act must be reviewed in this process.*fn14
Such claims include "claims of program eligibility" and "claims that contest a sanction or remedy."*fn15
B. The Standard for a Rule 12(b)(1)
Motion Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss an action for lack of subject matter jurisdiction. A plaintiff carries the burden of demonstrating the existence of federal jurisdiction-that is, "federal jurisdiction is never presumed."*fn16 If a plaintiff fails to exhaust administrative remedies, a motion to dismiss for lack of subject matter jurisdiction "may be appropriate."*fn17
Here, Plaintiffs carry the burden of demonstrating the existence of federal subject matter jurisdiction. Plaintiffs' sole allegation of jurisdiction, that "[t]his is a Federal Question case,"*fn18 does not satisfy their burden under Rule 12(b)(1). Because Plaintiffs' claims arise under the Medicare Act, Plaintiffs cannot pursue judicial review before they have exhausted their administrative remedies. The Amended Complaint provides no indication that Plaintiffs have pursued any such remedies. Additionally, Plaintiffs have not opposed the Motions to Dismiss. For ...