Opinion
WERDEGAR, J. We granted review in this case, limited to the issue whether state law claims against a health maintenance organization (HMO), arising out of its refusal to provide services under a Medicare-subsidized health plan, fall within the exclusive review provisions of the Medicare Act requiring exhaustion of administrative remedies. (42 U.S.C. § 1395 et seq.) [415]As will appear, some disagreement exists among state and federal courts on this question, which has not yet been addressed by the United States Supreme Court. We conclude the claims made here do not fall within Medicare’s exclusive review provisions. Accordingly, we affirm the judgment of the Court of Appeal.
Facts
On review of the judgment of the Court of Appeal reversing the superior court’s orders sustaining defendants’ demurrers, we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose. (Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 957 [81 Cal.Rptr.2d 93, 968 P.2d 993]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)
George McCall, who suffered from progressive lung disease, was a Medicare beneficiary enrolled in PacifiCare of California, Inc. (PacifiCare), an HMO. His primary care physician was Dr. Lakshmi Shukla; his physician provider group, Greater Newport Physicians, Inc. (GNP). Allegedly, Dr. Shukla, PacifiCare and GNP repeatedly refused to refer Mr. McCall to a specialist for a lung transplant or provide other needed care, and ultimately forced him to disenroll from PacifiCare in order to get on the Medicare list for a transplant. During that time, Mr. McCall’s condition worsened.1
George McCall and his wife, Barbara (the McCalls), brought suit against Dr. Shukla, PacifiCare and GNP, alleging in their operative first amended complaint eight causes of action for tort damages (negligence, wilful misconduct, four counts of fraud including fraudulent misrepresentation and constructive fraud, and negligent and intentional infliction of emotional distress) and a ninth cause of action for injunctive relief from unfair business practices. The complaint alleged defendants had violated statutory duties they owed plaintiffs, including (A) the duty to provide ready referrals consistent with good professional practice (Health & Saf. Code, § 1367, subd. (d)); (B) the duty to render medical decisions unhindered by fiscal and administrative management (id., § 1367, subd. (g)); (C) the duty to provide for expedited review and to notify Mr. McCall of his right to expedited review from the California Department of Corporations when defendants’ decisions involved imminent and serious threat to his health (id., § 1368.01, subd. (b)); (D) the duty to engage in sufficient quality assurance activities to ensure that the requirements of California law were met in providing services to Mr. McCall (id., § 1370); (E) the duty not to require Mr. McCall to [416]disenroll except for very limited reasons, such as nonpayment of premiums (id., § 1365, subd. (a)); (F) PacifiCare’s duty to retain responsibility for all services, including those that it contracted with others to provide Mr. McCall (42 C.F.R. § 417.401 (1999)); (G) the duty to ensure that required services were available and accessible to Mr. McCall (42 C.F.R. § 417.416 (1999)); (H) the duty to provide written notice of noncoverage, including the reason for noncoverage and Mr. McCall’s appeal rights, before discharging him from hospital care (42 C.F.R. § 417.440(f) (1999)); (I) the duty not to disenroll Mr. McCall, and not to encourage him to disenroll, from PacifiCare (42 C.F.R. § 417.460(a) (1999)); and (J) the duty to provide grievance procedures for issues that do not involve organizational determinations and Medicare appeal rights (42 C.F.R. §§ 417.600, 417.604, 417.606 (1999)).
GNP and PacifiCare (hereafter defendants)2 demurred, arguing each of plaintiffs’ causes of action arose under the Medicare Act, 42 United States Code section 1395 et seq. and, pursuant to 42 United States Code section 405(g), was therefore subject to judicial review only in federal court, after exhaustion of administrative review procedures. The trial court sustained the demurrers without leave to amend and entered judgment accordingly. The Court of Appeal reversed, and we granted review.
Discussion
The Medicare Act, 42 United States Code section 1395 et seq. (the Act or Medicare), a part of the Social Security Act, established a federally subsidized health insurance program that is administered by the Secretary of Health and Human Services (the Secretary) through the Health Care Financing Administration (HCFA). Part A of Medicare, 42 United States Code section 1395c et seq., covers the cost of hospitalization and related expenses that are “reasonable and necessary” for the diagnosis or treatment of illness or injury. (42 U.S.C. § 1395y(a)(1)(A).) Part B of Medicare (42 U.S.C. § 1395j et seq.) establishes a voluntary supplementary medical insurance program for Medicare-eligible individuals and certain other persons over age 65, covering specified medical services, devices, and equipment. (See 42 U.S.C. §§ 1395k, 1395o.) The Act provides for the delegation of Medicare benefit administration to HMO’s, which are authorized, pursuant to contracts with the HCFA, to manage benefit requests by Medicare beneficiaries. (Wartenberg v. Aetna U.S. Healthcare, Inc. (E.D.N.Y. 1998) 2 F.Supp.2d 273, 276.)
The determination whether an individual is entitled to benefits, and the amount of benefits, is entrusted to the Secretary in accordance with regulations prescribed by him or her. (42 U.S.C. § 1395ff(a).) Judicial review of a [417]claim for benefits is available only after the Secretary has rendered a “ ‘final decision’ ” on the claim, and only in the manner provided for claims for old age and disability benefits arising under the Social Security Act. (Heckler v. Ringer (1984) 466 U.S. 602, 605 [104 S.Ct. 2013, 2016-2017, 80 L.Ed.2d 622] (Ringer); 42 U.S.C. §§ 405(g), (h), 1395ff(b)(1).)3 The relevant provisions of the Social Security Act, 42 United States Code section 405(g) and (h), read together, provide that a final decision by the Secretary on a claim “arising under” Medicare may be reviewed by no person, agency or tribunal except in an action brought in federal district court, and then only after exhausting administrative remedies as described above. (42 U.S.C. §§ 405(h), 1395ii; see 42 U.S.C. §§ 1395ff(b)(1), 1395mm(c)(5)(B).)
The question in this case, then, is whether the McCalls’ complaint alleges a claim “arising under” the Medicare Act, even though none of the claims seeks payment or reimbursement of Medicare claims. The seminal decision in this area, Ringer, supra, 466 U.S. 602, held that a claim arises under Medicare if (1) “ ‘both the standing and the substantive basis for the presentation’ ” of the claim is the Medicare Act (id. at p. 615 [104 S.Ct. at p. 2022]), or (2) the claim is “ ‘inextricably intertwined’ ” with a claim for Medicare benefits (id. at p. 614 [104 S.Ct. at p. 2021]). The high court, however, recognized that a claim that is “wholly ‘collateral’ ” to a claim for benefits under the Act is not subject to the administrative process; the court also suggested exhaustion would be excused if a claimant made a colorable showing that an erroneous denial of benefits would injure him or her in a [418]way that could not be remedied by the later payment of benefits. (Id. at p. 618 [104 S.Ct. at p. 2023],)4
In Ringer, the plaintiffs were four Medicare beneficiaries who suffered from respiratory distress; three had had surgery known as bilateral carotid body resection (BCBR) and were seeking reimbursement of the cost thereof, and one sought to have BCBR surgery but claimed he could not afford it absent Medicare coverage. (Ringer, supra, 466 U.S. at pp. 605, 609-610 [104 S.Ct. at pp. 2018-2019].) The Secretary had ruled that Medicare did not cover BCBR when performed to relieve respiratory distress because the procedure lacked the general acceptance of the professional medical community and thus was not “reasonable and necessary” within the meaning of Medicare. (Id. at p. 607 [104 S.Ct. at p. 2018].) The Ringer plaintiffs, none of whom had exhausted their administrative remedies, filed a complaint in federal district court seeking declaratory and injunctive relief. (Id. at pp. 610-611 [104 S.Ct. at pp. 2019-2020].) The district court dismissed the complaint in its entirety for lack of jurisdiction, concluding the essence of the claim was one of entitlement to benefits for the BCBR procedure and that the plaintiffs therefore were required to exhaust administrative remedies before seeking relief in federal court. (Id. at p. 611 [104 S.Ct. at pp. 2019-2020].) The Court of Appeals for the Ninth Circuit reversed, concluding exhaustion would be futile and might not fully compensate the plaintiffs for the injuries they asserted. (Id. at p. 612 [104 S.Ct. at p. 2020].) The Supreme Court reversed.
The high court noted that, in Weinberger v. Salfi (1975) 422 U.S. 749, 760-761 [95 S.Ct. 2457, 2464-2465, 45 L.Ed.2d 522], where the plaintiffs had sought an award of Social Security benefits (a type of claim that, as noted above, is subject to the same administrative exhaustion provisions as those seeking Medicare benefits), it had construed the “ ‘claim arising under’ language quite broadly to include any claims in which ‘both the standing and the substantive basis for the presentation’ of the claims is the Social Security Act.” (Ringer, supra, 466 U.S. at p. 615 [104 S.Ct. at p. 2022]; see Weinberger v. Salfi, supra, at pp. 760-761 [95 S.Ct. at pp. 2464-2465] [constitutional challenge to the duration-of-relationship eligibility statute was a “ ‘claim arising under’ ” the Social Security Act, even though it was also, in another sense, a claim arising under the Constitution].) Any other conclusion, the high court reasoned, would allow claimants substantially to undercut Congress’s carefully crafted scheme for administering Medicare. (Ringer, supra, at p. 621 [104 S.Ct. at pp. 2024-2025].)
[419]Because the Medicare beneficiaries in Ringer, at bottom, sought Medicare reimbursement or authorization for a particular surgical procedure, the high court had no difficulty concluding the claim was one in which both the standing and the substantive basis of the claim was the Act, and that the complaint was, thus, one “arising under” Medicare. Perhaps for that reason, the court did not define the phrase “inextricably intertwined,” as used in this context, or elaborate on the extent to which a state law claim may be “intertwined” with a Medicare claim before it becomes inextricably so. (See Ringer, supra, 466 U.S. at pp. 611, 614-615 [104 S.Ct. at pp. 2020, 2021-2022].) A closer question than that posed in Ringer, however, arises where the complaint seeks, on state tort law grounds, not reimbursement for an assertedly covered procedure, but, rather, damages assertedly flowing from conduct only incidentally related to the wrongful denial of a benefits claim.
Such a situation was present in Ardary v. Aetna Health Plans of California, Inc. (9th Cir. 1996) 98 F.3d 496, certiorari denied (1997) 520 U.S. 1251 [117 S.Ct. 2408, 138 L.Ed.2d 174] (Ardary), on which the McCalls rely. In Ardary, a Medicare beneficiary who lived in a rural area and was enrolled in an HMO suffered a heart attack and was refused airlift transportation to a more sophisticated medical facility than those available nearby. When the beneficiary died, her family sued the HMO and its contractor, Arrowest Physician Association, in state court. They sought compensatory and punitive damages on six state tort law theories: negligence, intentional and/or negligent infliction of emotional distress, intentional and/or negligent misrepresentation, and professional negligence. (Id. at pp. 497-498.) The defendants in Ardary removed the case to federal court and sought dismissal, arguing all of the plaintiffs’ state law causes of action related to the denial of Medicare benefits and, therefore, were preempted by federal law requiring they be addressed through the Medicare administrative appeals process. The Court of Appeals for the Ninth Circuit concluded the complaint did not state any claims in which both the standing and the substantive basis for the presentation of the claims was the Medicare Act; rather, the complaint was predicated on state common law theories. (Ardary, supra, at pp. 499-500.) The Ardary court also concluded the plaintiffs’ state law claims were not “ ‘inextricably intertwined’ ” with the assertedly wrongful denial of Medicare benefits because the plaintiffs were not seeking to recover benefits, and because the harm the defendants allegedly caused could not be remedied by the payment of benefits. (Id. at p. 500.)5
Defendants suggest that, although the Ardary court recited the test articulated in Ringer, supra, 466 U.S. at pages 614-615 [104 S.Ct. at pages [420202]1-2022], it did not address or resolve the potential conflict between an award of state law tort damages proximately resulting from a wrongful denial of Medicare benefits, on the one hand, and the possibility that an exhaustive administrative appeal would determine that Medicare benefits were not wrongly denied in the particular case, on the other. Because, as Ringer made clear, Congress has vested in the Secretary the exclusive power to administer the Medicare system, defendants contend that any state court damage award that is logically dependent on a finding of wrongful denial of benefits is “ ‘inextricably intertwined’ ” (Ringer, supra, at p. 614 [104 S.Ct. at p. 2021]) with a Medicare claim.
Such was the conclusion of the Court of Appeal in Redmond v. Secure Horizons, Pacificare, Inc. (1997) 60 Cal.App.4th 96 [70 Cal.Rptr.2d 174] (Redmond). In that case, the plaintiff HMO subscriber sued her HMO on various state contract and tort law theories for its initial denial of coverage and subsequent delay in reimbursing her for health care expenses covered [421]under her Medicare-subsidized plan. The superior court dismissed the complaint, ruling it lacked jurisdiction because the plaintiff’s causes of action arose under Medicare. The Court of Appeal affirmed. The fact the plaintiff’s causes of action were based on her contractual relationship with the HMO did not mean her claims did not arise under Medicare, the court reasoned; indeed, the contract expressly provided that coverage determinations would be based on the Medicare Act and resolved through the multilevel Medicare administrative review process. (Redmond, supra, at p. 101.) Moreover, the Court of Appeal held, each of the plaintiff’s state law causes of action was inextricably intertwined with a claim that she was entitled to the reimbursement she eventually received. (Id. at p. 102.)
The plaintiff in Redmond argued her claim was based, not on her entitlement to benefits, but on the defendant’s conduct with respect to her claim for benefits. The Court of Appeal disagreed: “This argument fails because the alleged wrongfulness of defendant’s conduct depends on whether plaintiff was entitled to payment of her claim. The fact that defendant ultimately paid her claim does not necessarily establish that plaintiff was entitled to such payment.” (Redmond, supra, 60 Cal.App.4th at p. 102.)
Finally, the Redmond plaintiff contended her case fell outside the administrative exhaustion requirement because, as recognized in Ringer, supra, 466 U.S. at page 618 [104 S.Ct. at page 2023], and Ardary, supra, 98 F.3d at page 500, the initial denial and subsequent delay in paying benefits caused injury that could not be remedied by the later payment of benefits. The Court of Appeal dismissed the contention, concluding the plaintiff could have pressed her claim through the administrative review process. The court opined the administrative process governs not only coverage determinations but also “ ‘any other determination with respect to a claim for benefits’ ” (Redmond, supra, 60 Cal.App.4th at p. 103), and observed that the Secretary can order civil money penalties or “ ‘any other remedies authorized by law’ ” (ibid.).6 Redmond, however, cited no authority for the implied proposition that the Secretary is empowered to award damages for violations of state tort law.7
The Redmond court’s rationale—i.e., that the plaintiff’s state tort law claims were inextricably intertwined with a Medicare claim because the [422]alleged wrongfulness of the defendant’s conduct depended on whether the plaintiff was, in fact, entitled to payment of her claim—has a certain logic. In applying one portion of the Ringer analysis, however, the Redmond court elided over the other. That is, it failed adequately to explain how the alleged harms suffered by the Redmond plaintiff could be remedied through the Medicare administrative review process. If those harms could not be so remedied, then the Redmond court’s holding hinges on a conclusion that, by establishing an administrative process for Medicare benefit determinations, Congress must have intended to oust state courts of jurisdiction to enforce such of their own tort laws as may be implicated by conduct incidental to benefit determinations. We are directed to no evidence supporting such a conclusion.
We presume that in enacting laws, Congress does not intend to preempt state regulation of the same subject matter unless a contrary intent is made clear. (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485 [116 S.Ct. 2240, 2250, 135 L.Ed.2d 700]; Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516 [112 S.Ct. 2608, 2617, 120 L.Ed.2d 407].) The classic example of clear congressional intent to preempt state remedies is found in the Employee Retirement Income Security Act of 1974 (ERISA), 29 United States Code section 1001 et seq., governing employee benefit plans, including health insurance. ERISA expressly and broadly preempts state law, providing it “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . .” (29 U.S.C. § 1144(a); see Ingersoll-Rand Co. v. McClendon (1990) 498 U.S. 133, 139-140 [111 S.Ct. 478, 482-484, 112 L.Ed.2d 474] [ERISA preempts employee’s state law claim of wrongful discharge in order to avoid paying pension benefits]; Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 47-48 [107 S.Ct. 1549, 1552-1553, 95 L.Ed.2d 39] [ERISA preempts state law tort and contract claims against insurer for bad faith denial of claim].)
No intent to displace state tort law remedies was expressed in the Medicare Act as it read at the time relevant to this case. (Ardary, supra, 98 F.3d at pp. 501-502.) To the contrary, “[t]he first section of the Medicare Act explicitly states [Congress’s] intent to minimize federal intrusion in the area.” (Massachusetts Medical Soc. v. Dukakis (1st Cir. 1987) 815 F.2d 790, [423791]; Shands Teaching Hosp. v. Humana Medical (Fla.Dist.Ct.App. 1999) 727 So.2d 341, 344.) Title 42, section 1395 of the United States Code provides: “Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.” Indeed, the Act specifically requires HMO’s and other Medicare providers to be state licensed. (42 U.S.C. § 1395mm(b).) By clear implication, therefore, Congress left open a wide field for the operation of state law pertaining to standards for the practice of medicine and the manner in which medical services are delivered to Medicare beneficiaries.
The conclusion that Congress, in enacting the Medicare Act, did not intend to displace the state tort remedies with which we are here concerned is strengthened by consideration of subsequent amendments to the Act. Shortly before the McCalls filed the initial complaint in this case, the Balanced Budget Act of 1997 (the BBA) became law. (Pub.L. No. 105-33 (Aug. 5, 1997) 111 Stat. 328, codified at 42 U.S.C. § 1395w-21 et seq.) The BBA enacted a new part of Medicare known as “Medicare + Choice” that allows a new range of Medicare managed care options. HMO’s contracting with Medicare, such as PacifiCare, automatically became Medicare + Choice plans effective January 1, 1999. (See 42 U.S.C. § 1395mm(k).) The BBA is noteworthy for its addition of an express limited preemption provision to the Medicare Act. By its terms, Medicare now preempts state laws mandating benefits to be covered, mandating inclusion of providers and suppliers, and coverage determinations. (42 U.S.C. § 1395w-26(b)(3).) Pursuant to the related regulations, determinations on issues other than whether a service is covered under a Medicare + Choice contract fall outside the definition of coverage determinations. (42 C.F.R. § 422.402 (1999).) All other types of state laws not inconsistent with Medicare standards are permitted. {Ibid.) The preamble to HCFA’s request for final comments on the interim final rule implementing the amendments states: “Prior to the BBA, section 1876 of the Act [(42 U.S.C. § 1395mm)] (governing Medicare risk and cost contracts with HMOs and competitive medical plans) did not contain any specific preemption provisions. However, section 1876 requirements could preempt a State law or standard based on general constitutional Federal preemption principles .... Put another way, if Federal law permitted the HMO to do what State law required, there was no preemption. In practice, rarely, if ever, did Federal law preempt State laws affecting Medicare prepaid plans. For example, Medicare risk plans operating in States with mandated benefit laws [424]were generally required to comply with such State laws. Compliance with the State mandated benefit law was not viewed as interfering with the ability of plans to function as Medicare risk contractors under Federal standards. ■ ■ • [ID • • • Í1D • • • [T]he specific preemption [added by the BBA] does not preempt State remedies for issues other than coverage under the Medicare contract (i.e. tort claims or contract claims under State law are not preempted). The same claim or circumstance that gave rise to a Medicare appeal may have elements that are subject to State remedies that are not superseded. For example, [a Medicare + Choice] organization’s denial of care that a beneficiary believes to be covered care is subject to the Medicare appeals process, but under our interpretation of the scope of the specific preemption on coverage decisions, the matter may also be the subject of a tort case under State law if medical malpractice is alleged, or of a state contract law claim if an enrollee alleges that the [Medicare + Choice] organization has obligated itself to provide a particular service under State law without regard to whether it is covered under its [Medicare + Choice] contract.” (63 Fed.Reg. 34967, 35012, 35013 (June 26, 1998).) Because, prior to the BBA, Medicare preemption of state law claims was even narrower than the limited preemption enacted by the BBA, these comments strongly imply that state law claims such as those involved in the present case were not preempted under then applicable law.
As the McCalls observe, Medicare regulations provide for administrative review of a limited class of claims (42 C.F.R. § 417.600 et seq. (1999)), not including those pertaining to quality of care, marketing problems and forced disenrollment such as the McCalls haVe alleged in their complaint. Absent clear indication of congressional intent, we decline to find preemption of claims, founded in California law, that find no remedy under the Medicare administrative process.
We must now turn to the specific causes of action contained in the first amended complaint to determine whether any is “inextricably intertwined” with a claim for Medicare benefits. Neither the high court in Ringer, supra, 466 U.S. 602, nor the Ninth Circuit in Ardary, supra, 98 F.3d 496, essayed a definition of this key phrase. The Court of Appeal in Redmond, supra, 60 Cal.App.4th 96, may be understood to have held that any claim incidental to a coverage determination, whether it seeks payment (or reimbursement) for medical services or tort damages resulting from the manner in which coverage was denied, is inextricably intertwined with a claim for Medicare benefits. (Id. at pp. 102-103.) Defendants urge us to adopt such a reading of the Act.
We believe Redmond painted with too broad a brush in so holding. A Medicare provider may violate state common law or statutory duties owing [425]to beneficiaries, unrelated to its Medicare coverage determinations. The “inextricably intertwined” language in Ringer is more correctly read as sweeping within the administrative review process only those claims that, “at bottom,” seek reimbursement or payment for medical services, but not a claim not seeking such reimbursement or payment, which claim as pleaded incidentally refers to a denial of benefits under the Medicare Act. (See Ringer, supra, 466 U.S. at pp. 614-615 [104 S.Ct. at pp. 2021-2022].) The latter type of state-law-based claim by Medicare beneficiaries is not subject to the administrative review process and may be pursued in our state courts. In the language of Ringer, at page 618 [104 S.Ct. at page 2023], such claims are collateral to, not inextricably intertwined with, Medicare benefit claims.
For example, a provider may negligently fail to use ordinary skill and care in treating a beneficiary, or properly to advise the beneficiary concerning his health condition or appropriate treatment options, whether or not such options are covered by Medicare, thus preventing the beneficiary from seeking such treatment even at his own expense. Or a provider may fail to provide appropriate referrals to specialists, and thus prevent the beneficiary from obtaining appropriate care, again without regard to coverage. The McCalls’ first and second causes of action, for negligence and wilful misconduct, respectively, set forth such allegations and enumerate the statutory and regulatory bases of the relevant duties (see ante, pp. 415-416), none of which necessarily implicates a coverage determination or falls within the scope of the Medicare administrative review process.
A provider may make misrepresentations regarding the nature or extent of the services it intends to provide, either in its application for HMO licensure to the California Department of Corporations or in its marketing materials disseminated to potential enrollees. If the injury to the enrollee is foreseeable, a Randi W. cause of action8 or a claim of fraud may be stated.9 The McCalls’ third, fourth and fifth causes of action allege such claims, none of [426]which necessarily implicates coverage determinations or falls within the scope of the Medicare administrative review process.
A provider may breach the fiduciary duty it owes the enrollee (see Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129 [271 Cal.Rptr. 146, 793 P.2d 479, 16 A.L.R.5th 903]), inter alia, by permitting its financial interest detrimentally to affect treatment decisionmaking or failing to disclose such interest. The McCalls’ sixth cause of action alleges such a claim, which does not necessarily implicate coverage determinations or fall within the scope of the Medicare administrative review process.
If a defendant’s violations of state law duties are sufficiently outrageous, a claim for negligent or intentional infliction of emotional distress may be stated; the McCalls’ seventh and eighth causes of action allege such violations, none of which necessarily implicates coverage determinations or falls within the scope of the Medicare administrative review process.
Finally, such violations of statutory duties, none necessarily implicating coverage determinations or falling within the scope of the Medicare administrative review process, may amount to unfair practices as prohibited by Business and Professions Code section 17200; the McCalls’ ninth cause of action so alleges.10
Because the McCalls may be able to prove the elements of some or all of their causes of action without regard, or only incidentally, to Medicare coverage determinations, because (contrary to the dissent’s characterization of the complaint) none of their causes of action seeks, at bottom, payment or reimbursement of a Medicare claim or falls within the Medicare administrative review process, and because the harm they allegedly suffered thus is not remediable within that process, it follows that the Court of Appeal correctly reversed the trial court’s orders sustaining defendants’ demurrers without leave to amend.11
We therefore affirm the judgment of the Court of Appeal and disapprove the decision in Redmond v. Secure Horizons, Pacificare, Inc., supra, 60 Cal.App.4th 96, to the extent it is inconsistent with this opinion.
[427]George, C. J., Mosk, J., Kennard, J., and Chin, J., concurred.
Mr. McCall died shortly before the Court of Appeal rendered its decision in this case, immediately after undergoing a lung transplant paid for by Medicare.
GNP and Dr. Shukla also demurred on other, more limited grounds, none of which is before this court.
In a case involving a non-HMO, fee-for-service claim, the United States Supreme Court described the administrative appeals process as follows: “[T]he Medicare Act authorizes the Secretary to enter into contracts with fiscal intermediaries providing that the latter will determine whether a particular medical service is covered by Part A, and if so, the amount of the reimbursable expense for that service. 42 U.S.C. § 1395h; 42 CFR § 405.702 (1983). If the intermediary determines that a particular service is not covered under Part A, the claimant can seek reconsideration by the . . . (HCFA) in the Department of Health and Human Services. 42 CFR §§ 405.710-405.716 (1983). If denial of the claim is affirmed after reconsideration and if the claim exceeds $100, the claimant is entitled to a hearing before an administrative law judge (ALJ) in the same manner as is provided for claimants under Title II of the Act. 42 U.S.C. § 1395ff(b)(1)(C), (b)(2); 42 CFR § 405.720 (1983). If the claim is again denied, the claimant may seek review in the Appeals Council. 42 CFR §§ 405.701(c), 405.724 (1983) (incorporating 20 CFR § 404.967 (1983)). If the Appeals Council also denies the claim and if the claim exceeds $1,000, only then may the claimant seek judicial review in federal district court of the ‘Secretary’s final decision.’ 42 U.S.C. §§ 1395ff(b)(1)(C), (b)(2).” (Ringer, supra, 466 U.S. at pp. 606-607 [104 S.Ct. at pp. 2017]; see generally 42 C.F.R. § 405.701 et seq. (1999) [describing the Medicare fee-for-service appeals process].) A Medicare beneficiary enrolled in an HMO may challenge the Secretary’s final determination in the same manner. (42 U.S.C. § 1395mm(c)(5)(B); see 42 C.F.R. §§ 417.600-417.638 (1999).)
The dissent (dis. opn., post, at p. 438) suggests the possible imposition by the Secretary of civil monetary penalties against contracting HMO’s for violations of the Medicare Act justifies a conclusion that plaintiffs’ state law claims are preempted. The suggestion, however, ignores Ringer’s focus on the presence or absence of a remedy for injuries suffered.
A number of subsequent decisions have favorably cited and relied on Ardary. (E.g., Plocica v. Nylcare of Texas, Inc. (N.D.Tex. 1999) 43 F.Supp.2d 658, 663 [complaint alleging wrongful death under state law was not preempted by Medicare; case remanded to state court]; Zamora-Quezada v. HealthTexas Medical Group (W.D.Tex. 1998) 34 F.Supp.2d 433, [420440] [complaint by physicians and Medicare HMO beneficiaries, alleging that HMO’s created contractual arrangement that resulted in discrimination against the disabled in violation of the Americans with Disabilities Act, the Rehabilitation Act and various state law theories, did not arise under Medicare; federal district court denied defendants’ motion to dismiss for failure to exhaust administrative remedies]; Wartenberg v. Aetna U.S. Healthcare, Inc., supra, 2 F.Supp.2d at pp. 277-278 [complaint alleging wrongful death under state law not preempted by Medicare; case remanded to state court]; Albright v. Kaiser Permanente Medical Group (N.D.Cal., Aug. 3, 1999, No. C98-0682 MJJ) 1999 WL 605828, pp. [3]-[4] [a complaint alleging unfair business practices, violation of the covenant of good faith and fair dealing, and fraud did not arise under Medicare; case remanded to state court]; Kelly v. Advantage Health, Inc. (E.D.La., May 11, 1999, Civ. A. No. 99-0362) 1999 WL 294796, at pp. [4]-[5], [7] [a complaint alleging negligence and violation of Louisiana Health Maintenance Organization Act, La. Rev. Stat. § 22:2001 et seq., did not arise under Medicare; case remanded to state court]; Berman v. Abington Radiology Associates, Inc. (E.D.Pa., Aug. 14, 1997, Civ. A. No. 97-3208) 1997 WL 534804, at p.
Other decisions have distinguished Ardary without criticizing its reasoning. (E.g., Jamaica Hosp. Nursing Home v. Oyford Health Plans (S.D.N.Y., Sept. 26, 2000, No. 99 Civ. 9541 (AGS)) 2000 WL 1404930, at p. [3] [nursing home’s complaint alleging it provided medical treatment to beneficiary and, under its assignment of insurance rights from beneficiary, was entitled to payment from HMO for the cost of the treatment was, at bottom, a claim for reimbursement of Medicare benefits; because nursing home had failed to exhaust administrative remedies, federal district court dismissed complaint for lack of subject matter jurisdiction]; Helping Hands Professional Home Health Services, Inc. v. Shalala (S.D.Cal., Aug. 1, 1997, No. 97-1043-IEG(LSG)) 1997 WL 778990, at p. [4] [service provider’s complaint, alleging that fiscal intermediary failed to comply with regulations governing payments under Medicare system, arose under Medicare; because provider had failed to exhaust administrative remedies, federal district court dismissed complaint for lack of subject matter jurisdiction].)
The federal district court in Albright v. Kaiser Permanente Medical Group, supra, 1999 WL 605828, at page [4], observed that “Redmond has not been cited as persuasive authority in any subsequent opinions interpreting whether state law claims arise under the Act.” A decision not citing Redmond, but employing a similar analysis to reach a similar conclusion, is Wilson v. Chestnut Hill Healthcare (E.D.Pa., Feb. 22, 2000, Civ. A. No. 99-CV-1468) 2000 WL 204368.
Kelly v. Advantage Health, Inc., asserts the contrary. “Indeed, the legislative history indicates that the administrative remedies and specific judicial review procedures were established for ‘quite minor matters,’ such as amount determinations of specific Medicare [422]benefits. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 680 [106 S.Ct. 2133, 2141, 90 L.Ed.2d 623] (1986); Ardary, 98 F.3d at 501. The administrative agency in charge of applying the administrative procedure set forth in the Act does not even possess the authority to assess the validity or merit of tortious claims or to grant relief for the types of state law causes of action at issue here. Thus, under the administrative process, plaintiff would most likely be precluded from receiving damages for any of the wrongs that have allegedly been committed against him.” (Kelly v. Advantage Health, Inc., supra, 1999 WL 294796, at p. [7].)
See Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066 [60 Cal.Rptr.2d 263, 929 P.2d 582, 68 A.L.R.5th 719].
We note that the recent decision in Buckman Co. v. Plaintiffs’ Legal Committee (2001) 531 U.S. 341 [121 S.Ct. 1012, 148 L.Ed.2d 854] concluded that a state law action seeking damages for injuries allegedly caused by Food and Drug Administration (FDA) approved bone screws, predicated on a “fraud-on-the-FDA” theory, was preempted by the Federal Food, Drug, and Cosmetic Act, as amended by the Medical Device Amendments of 1976, 21 United States Code section 301. The high court reasoned that “[p]olicing fraud against federal agencies is hardly ‘a field which the States have traditionally occupied,’ [citation], such as to warrant a presumption against finding federal pre-emption of a state-law cause of action.” (Buckman, supra, 531 U.S. at p. 348 [121 S.Ct. at p. 1017, 148 L.Ed.2d at p. 860].) The court contrasted “situations implicating ‘federalism concerns and the historic primacy of state regulation of matters of health and safety,’ ” where a “presumption against pre-emption obtains.” (Id. at p. 348 [121 S.Ct. at p. 1017, 148 L.Ed.2d at p. 861], citing Medtronic, Inc. v. [426]Lohr, supra, 518 U.S. at p. 485 [116 S.Ct. at p. 2250].) To the extent the McCalls’ complaint alleges fraud on the HCFA, defendants may, on remand, assert it is preempted under the rule in Buckman.
This case does not call upon us to determine the sufficiency of any of the McCalls’ allegations to state a cause of action under California law, and we express no opinion on whether the claims ultimately will be proven.
Defendants’ reliance on Bodimetric Health Services v. Aetna Life & Cas. (7th Cir. 1990) 903 F.2d 480, Midland Psychiatric Associates, Inc. v. U.S. (8th Cir. 1998) 145 F.3d 1000, and Marin v. HEW, Health Care Financing (9th Cir. 1985) 769 F.2d 590, is misplaced: those cases are distinguishable from the present one, in that they were actions seeking tort damages for harm allegedly sustained as a result of improper denial of claims, not, as here, claims arising from violations of duties separate from the duty to pay Medicare benefits.