Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
force to the Medicare Act, but only by virtue of 42 U. S. C. § 1395ii, the Medicare Act's incorporating reference to § 405(h).1 I read Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 (1986), to hold that this incorporating reference is triggered when a particular fact-bound determination is in dispute, but not in the case, as here, of a "challeng[e] to the validity of the Secretary's instructions and regulations." Id., at 680. Though this (or any) interpretation of § 1395ii is not entirely free from doubt in light of the arguable tension between Michigan Academy and our earlier decision in Heckler v. Ringer, 466 U. S. 602 (1984), I would resolve such doubt by following our longstanding presumption in favor of preenforcement judicial review. Accordingly, I would hold that § 405(h) does not apply to respondent's challenge, and therefore does not preclude respondent from bringing suit under general federal-question jurisdiction, 28 U. S. C. § 1331.
I
A
Michigan Academy was the first time we discussed the meaning of § 1395ii. In earlier Medicare Act cases where the plaintiffs had sought to proceed under general federal-question jurisdiction, we either had no need to address § 1395ii, or assumed in passing (and without discussion) that § 1395ii always incorporates § 405(h).
Our decision in United States v. Erika, Inc., 456 U. S. 201 (1982), involved the former situation. We dealt there with a Part B dispute over the appropriate amount of reimbursement for certain medical supplies.2 The statute provided
1 Section 1395ii provides in relevant part that the provisions of § 405(h) "shall also apply with respect to [the Medicare Act] to the same extent as they are applicable with respect to [the Social Security Act]."
2 Part B of the Medicare Act provides voluntary supplemental insurance coverage to eligible individuals for certain physician charges and medical services that are not covered by Part A. Individuals' Part B benefits
33
Page: Index Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 NextLast modified: October 4, 2007