Olsen-Ecker v. Burwell
No. 3:15-cv-1468-JAM, filed October 9, 2015
Issue: Whether the extremely high denial rates (98% and higher) at the redetermination and reconsideration stages of administrative review for home health care claims violate the Medicare statute and the Due Process Clause.
Relief sought: Declaratory and injunctive relief requiring the Secretary to correct the existing system of lower level review denials by revising guidelines, educating and monitoring contractors, and providing re-review of denied claims for the named plaintiff and class members.
Updated: October 13, 2016
Status: Shortly after the complaint was filed, the plaintiff moved for certification of a nationwide class of home health beneficiaries. The defendant moved to dismiss, on the grounds that the plaintiff had failed to exhaust administrative remedies and that plaintiff had not stated a claim for relief. Both of those motions were fully briefed, and were argued to the court on February 29, 2016.
In its decision of August 8, 2016, the court rejected the Secretary’s argument that it lacked jurisdiction because the plaintiff had failed to exhaust administrative remedies. 2016 WL 4197575 at *3-*4. It also rejected a mootness claim that the defendant had raised after the motions had been briefed. Id. at *4. The court also ruled that plaintiff had sufficiently pled his due process claim to survive a motion to dismiss. Id. at *5-*7. Finally, the judge concluded that plaintiffs had satisfied all the requirements for class certification and therefore certified a nationwide class. Id. at *7–*9.
Since plaintiff’s discovery requests had been stayed pending resolution of the motion to dismiss, the Secretary now had to respond, and she began that process on October 7. More discovery responses will follow in December, and plaintiffs’ counsel expect to carry out a number of depositions in the winter and spring of 2017. Under the court-approved revised schedule, briefing on dispositive motions will begin on September 8, 2017.