November 2017 – Medicare Enrollment & Other Issues

Contents

  1. Enrollment in Medicare
  2. Affordable Care Act (ACA) Updates
  3. Federal Update
  4. Update on CMA Home Health Access Initiative
  5. Litigation Update

Enrollment in Medicare

CMS Steering to Medicare Advantage?

The Medicare Annual Coordinated Election Period (ACEP), from October 15th through December 7th, allows Medicare beneficiaries to make certain changes to their Medicare coverage, effective the following January 1st.  Official Center for Medicare & Medicaid Services (CMS) Medicare Open Enrollment materials for 2018 tip the scales to encourage beneficiaries to choose a private Medicare plan over original Medicare coverage. This strategy is actually built into the CMS Office of Communications plan that states three objectives for Medicare Open Enrollment.

The first CMS communications objective is, “[i]nforming people with Medicare that Open Enrollment is the annual opportunity for them to review, compare and enroll in Medicare health and drug plans – with renewed emphasis on MA plans”. The second CMS communications objective is to, “[s]upport a competitive marketplace of privatized health plans by encouraging competition.” The third and final communications objective is to, “’[r]emind people with Medicare of the dates and deadline to review and compare: October 15 – December 7.”

The Key Messages of the CMS Communications Plan for 2018 Open Enrollment do not even address original Medicare. Further, the CMS Open Enrollment webpage makes no mention of original Medicare as a choice during Open Enrollment. https://www.cms.gov/Outreach-and-Education/Reach-Out/Find-tools-to-help-you-help-others/Medicare-Open-Enrollment.html.

Original Medicare, as an enrollment option during the ACEP, is omitted or minimized in multiple materials issued by CMS, including: “Medicare Open Enrollment: Review, Compare, Enroll”; the Medicare & You 2018 Handbook; and enrollment materials available on the CMS website

https://www.cms.gov/Outreach-and-Education/Reach-Out/Find-tools-to-help-you-help-others/Open-Enrollment-Outreach-and-Media-Materials.html).

Original Medicare, which may be the best choice for most beneficiaries, is not being fairly represented by CMS and HHS during Open Enrollment. Beneficiary access to coverage, care, and true choice are in jeopardy as CMS strongly favors private insurers over the original Medicare program that serves so many, so well, and that continues to provide access to most health care providers nationwide.

Recently, the Leadership Council of Aging Organizations (LCAO), a 70-member coalition of the nation’s non-profit organizations serving older Americans, sent a letter about these issues to CMS and committees of jurisdiction in Congress.

The organizations listed in the letter wrote to express concerns that during the current Medicare Annual Coordinated Election Period, the Centers for Medicare & Medicaid Services (CMS) is encouraging entities that assist Medicare beneficiaries with enrollment choices to disseminate information that is incomplete and biased towards Medicare Advantage (MA) and often fails to mention traditional Medicare. The organizations urged CMS to take immediate corrective action to include and accurately portray the benefits and drawbacks of all coverage options in CMS materials.

  1. Guest Presenter: Medicare Rights Center

Equitable Relief re: Transitions from Marketplace Plans

The Centers for Medicare & Medicaid Services (CMS) recently announced a year-long extension, through September 30, 2018, of a critical exception for certain Marketplace enrollees who delayed or declined Medicare enrollment. This process—known as time-limited equitable relief—lifts the burden of lifetime late enrollment penalties and gaps in health coverage for people with Marketplace plans who mistakenly missed signing up for Medicare.

The extension provides welcome relief to Marketplace enrollees who have not yet taken advantage of this opportunity. The relief may include retroactive or immediate Medicare Part B enrollment and a reduction in or elimination of Medicare Part B late enrollment penalties. People who were or are enrolled in Marketplace coverage and who are entitled to premium-free Medicare Part A can apply for this relief through the end of September 2018.

BENES Act

Senators Bob Casey (D-PA) and Todd Young (R-IN) recently reintroduced the bipartisan Beneficiary Enrollment Notice and Eligibility Simplification (BENES) Act (S. 1909).  The BENES Act simplifies Part B enrollment periods and requires the federal government to provide advance notification to people approaching Medicare eligibility about enrollment rules and how Medicare works with other coverage.

People receiving Social Security benefits are automatically enrolled in Medicare Part B. Increasingly, however, many Americans are working longer, delaying retirement, and deferring Social Security benefits. Unlike those who are auto-enrolled, these individuals must make an active Medicare enrollment choice. Deciding whether and when to enroll in Medicare involves many complex rules, and inappropriately delaying Part B can lead to a lifetime of higher Part B premiums, gaps in coverage, and barriers to accessing needed care. The BENES Act seeks to address these challenges by improving complicated and outdated Medicare enrollment processes.

Key aspects of the bill include:

  • Increasing Notification and Education. The BENES Act will create a pathway for the Department of Health and Human Services (HHS), Social Security Administration (SSA), and Internal Revenue Service (IRS) to work together and notify individuals approaching eligibility about enrollment rules and how other insurance works with Medicare.
  • Eliminating Coverage Gaps during Enrollment Periods. The BENES Act guarantees that people with Medicare do not experience a break in critical coverage. Specifically, the bill will fix coverage gaps in the 5th, 6th and 7th month of a person’s Initial Enrollment Period (IEP) and in the General Enrollment Period (GEP), modernizing an enrollment system that has not been revisited since Medicare was established more than fifty years ago.

For more information, see the Medicare Rights Center website at: https://blog.medicarerights.org/benes-act-receives-bipartisan-support-senate/; also see a one-page description of the Act at: http://medicarerights.org/pdf/benes-act-onepager-hr2575-may-2017.pdf.

Affordable Care Act (ACA) Updates

Last week, Maine voters passed a referendum to expand Medicaid under the Affordable Care Act; this will provide Medicaid health coverage to about 80,000 additional Maine residents. Maine is the first state to pass such a referendum. This action is particularly impressive since Maine Gov. LePage had vetoed five earlier bills that would have expanded Medicaid.

In other good news, reports have shown that in spite of constant sabotage, ACA enrollment in the first week has surged, surpassing previous years. According to The Hill, more than 200,000 people enrolled on the first day of open enrollment, with over 1 million people visiting www.healthcare.gov.

Even as we celebrate this good news, however, the Administration must still be held accountable for acts of sabotage. Actions such as the Executive Order allowing the sale of junk plans; cutting the enrollment period in half; slashing funding for enrollment assistance; refusing to participate in enrollment events; shutting down healthcare.gov during critical times; and not paying cost sharing reductions are blatant efforts to undermine the ACA.

Recently added to the sabotage list: a proposed rule issued by CMS which would, among other things, weaken ACA requirements for essential health benefits in 2019. The ACA requires insurers to cover essential health benefits such as ambulatory services, emergency services, hospitalization, maternity care, mental health and substance abuse, prescription drugs, rehabilitative services, laboratory services, preventive and wellness services, and pediatric services. Any attempt to weaken these essential benefits through regulation and deny people care is unacceptable and must be rejected.

We encourage everyone to look at these rules and submit comments by November 27th.

View the proposed rule at: https://www.federalregister.gov/documents/2017/11/02/2017-23599/patient-protection-and-affordable-care-act-hhs-notice-of-benefit-and-payment-parameters-for-2019.

Federal Update

Federal Budget, Medicare, Medicaid and Tax Cuts

Judith Stein, executive director of the Center for Medicare Advocacy, and Joe Baker, president of the Medicare Rights Center, recently issued a joint statement regarding the Tax Cuts and Jobs Act introduced in the House of Representatives.

As noted in the statement, “This massive tax cut for the wealthy sets the stage for deep cuts to Medicare, Medicaid, and Social Security in the near future” by setting up a “two-step process: 1) Cut taxes for the wealthy and corporations, adding $1.5 trillion to the federal debt over the next decade; 2) Use the higher debt – created by the tax cuts – to argue that drastic cuts to our bedrock programs such as Medicare, Medicaid, and Social Security, are necessary. This strategy is not new; some lawmakers regularly repeat tired and inaccurate arguments that Medicare is unaffordable for our country, but this tax cut will create additional pressure to make Medicare beneficiaries pay for newly created debt.”

Last week, the Leadership Council of Aging Organizations (LCAO), a coalition of 70 national nonprofit organizations concerned with the well-being of America’s older population and committed to representing their interests in the policy-making arena, issued a statement concerning the House bill.  Both the Center for Medicare Advocacy and Medicare Rights Center are members of this coalition.

In addition to outlining the threats to Medicare, Medicaid and Social Security, the LCAO statement notes the danger to discretionary programs like the Older Americans Act, and the danger of repealing the medical expense and state and local tax deductions.

Last week the Senate introduced their version of a tax cut bill.  While there are some significant differences, according to The Hill, the bill keeps the same basic framework as the House version.  The House plans to vote on their version of the bill this week, as the Senate begins mark-up of their version.  Congressional leaders aim to have a bill on the President’s desk by Christmas.

CHIP Reauthorization

Earlier this month, the House passed a bill to extend the Children’s Health Insurance Program (CHIP) for 5 years.  The bill also extends funding for community health centers for 2 years, and provides additional funding for Medicaid in Puerto Rico and the U.S. Virgin Islands.   As described in the The Hill, the House bill includes offsets that “would charge higher premiums to wealthier Medicare beneficiaries, cut money from ObamaCare’s public health fund and shorten the grace period for ObamaCare enrollees who fail to make premium payments.”

The Senate Finance Committee previous passed its own version a bill to reauthorize CHIP, but there was no agreement on offsets.

Update on CMA Home Health Access Initiative

The Center continues to hear from people who meet Medicare coverage criteria for the Medicare home health benefit but who are unable to access care, or the appropriate amount of care.  After continuing to research and analyze the extent of the access problems, it is clear that the home health access issues most significantly impact the most vulnerable populations, those with long-term and chronic conditions.

Medicare Home Health is Not a Short-Term, Acute Care Benefit  

Medicare home health coverage is often erroneously described as a short-term, acute care benefit. Though often implemented in this way, this is not true. Under the law, people who meet the threshold qualifying criteria (legally homebound and needing skilled care), are eligible for Medicare home health coverage so long as they need skilled care. In fact, Congress actually acted affirmatively to authorize long-term Medicare home health coverage in 1980 – removing the annual cap on visits and rescinding the prior hospital stay requirement.

The Omnibus Reconciliation Act of 1980 (OBRA 1980), expanded the Medicare home health benefit. Prior to this, beneficiaries only enrolled in Part A were eligible for up to 100 home health visits annually, following a three day hospital stay. Coverage was also available under Part B, also limited to 100 visits per calendar year, but this coverage was not dependent on a prior hospitalization. OBRA 1980 eliminated the annual visit cap and the Part A prior hospitalization requirement, thus affirmatively expanding coverage for beneficiaries.

Medicare can be a source of coverage for long-term home health care for people who qualify.

The relevant legislative history for OBRA 1980 makes it clear that Congress intended to “liberalize” the Medicare home health benefit, and that the changes were seen as “benefit increases” which would be “important to beneficiaries.”

Congress’ 1980 action to reframe and expand Medicare home health coverage appears to be all but forgotten today. Home health care is often mistakenly referred to as a short-term, acute care benefit. This is in conflict with Congressional intent and long-standing Medicare law. The Center for Medicare Advocacy will continue to refute this fiction and advocate for beneficiaries who need and are eligible for long-term Medicare home health coverage and care.

Update on Payment Proposals and Conditions of Participation

CMS published the 2018 Home Health Prospective Payment System final rule on November 7, 2017.

A broadly challenged proposed new payment system (Home Health Groupings Model, or HHGM) was not finalized. As we note in a previous CMA Alert, HHGM would have provided home health agencies further disincentives to serve people with longer-term chronic conditions. The proposed payment system would have paid agencies more money for a brief amount of care, and paid less after 30 days. In addition, it would have paid agencies more money when a patient started home health care within 14 days of discharge from an institution, such as a hospital, and paid less if a patient was not first an inpatient prior to starting home health care.

Unfortunately, discriminatory Value Based Purchasing Models and Quality Reporting Requirements were advanced in the final rule. Such measures promote disparity and create barriers against fair access to home care benefits for the most vulnerable Medicare beneficiaries.

CMS also published Draft Interpretive Guidelines for new Home Health Conditions of Participation in the Medicare and Medicaid programs. The guidelines will become effective January 13, 2018. Further analysis of the new Conditions of Participation and the Interpretive Guidelines will be forthcoming in a future CMA Alert.

Litigation Update

  • Alexander v. Hargan (formerly Bagnall v. Sebelius, Barrows v. Burwell)No. 3:11-cv-1703 (D. Conn.) (Observation Status). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a proposed class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered “outpatient observation” rather than an inpatient admission. When hospital patients are placed on observation status, they are labeled “outpatients,” even though they are often on a regular hospital floor for many days, receiving the same care as inpatients.  Because patients must be hospitalized as inpatients for three consecutive days to receive Medicare Part A coverage of post-hospital nursing home care, people on observation status do not have access to nursing home coverage.  They must either privately pay the high cost of nursing care or forgo that skilled care.  The number of people placed on observation status has greatly increased in recent years.

On September 23, 2013, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit.  Plaintiffs appealed, but limited the appeal to the issue of the right to an effective notice and review procedure for beneficiaries placed on observation status.  On January 22, 2015, the U.S. Court of Appeals for the Second Circuit decided that Medicare patients who are placed on observation status in hospitals may have an interest, protected by the Constitution, in challenging that classification.  The panel held that the district court erred when it dismissed the plaintiffs’ due process claims, and it sent the case back to that court for further proceedings.  Barrows v. Burwell, 777 F.3d 106 (2d Cir. 2015).

The parties completed discovery on the issue ordered by the Second Circuit: whether plaintiffs have a “protected property interest” in Part A coverage of their hospital stays, which depends on whether CMS has “meaningfully channeled” discretion on the question of patient status determinations.  If the Secretary has established criteria for inpatient hospitalization, plaintiffs have an interest that is protected by the Due Process Clause and thus they may be entitled to notice and opportunity to appeal their placement on observation. Plaintiffs received voluminous documentation from the government and conducted depositions of witnesses from the Department of Health and Human Services, Medicare contractors, and some of the hospitals that treated the named plaintiffs. The law firm of Wilson Sonsini Goodrich & Rosati, which has helped the Center in previous litigation, joined as representatives of the plaintiffs during this phase and is continuing to provide invaluable pro bono assistance.

After briefing and a hearing on cross motions for summary judgment on the protected property interest issue and defendant’s supplemental motion to dismiss, the court issued a decision on February 8, 2017 denying both motions for summary judgment and largely denying the government’s motion to dismiss.  The court found that all named plaintiffs have standing and none of their claims was moot, even though some have passed away and some have resolved their underlying individual claims. It decided that factual disputes precluded summary judgment on the property interest question, though it did note that CMS considers the billing of hospitalizations as inpatient or observation to be a regulatory matter, under the authority of the Secretary, as opposed to a clinical decision. The court also found that while a treating physician’s status order plays a “role” in Medicare’s review of a hospital claim, it is not dispositive or even presumed to be correct.

As for the motion to dismiss, the court found that plaintiffs have plausibly alleged the other two aspects of a due process claim: state action (in the form of pressure on providers by CMS) and inadequacy of existing procedures (it is undisputed that there is currently no appeal method for patients placed on observation status). The court found that plaintiffs’ claim for expedited notice is now moot due to the new requirements being implemented under the NOTICE Act (“MOON” notice). The parties filed an updated plan for further discovery as plaintiffs continue to press their due process claim.

Plaintiffs filed a renewed motion for class certification on March 3, 2017. On July 31, 2017, the court issued a decision certifying a nationwide class of Medicare beneficiaries who have received “observation services” in a hospital since January 1, 2009, and have received an “initial determination” that such services were covered, or subject to coverage, under Medicare Part B.

Update: In response to a motion for reconsideration filed by plaintiffs, the court issued a decision October 16, 2017 redefining the class to specifically include beneficiaries who have received a MOON notice. The court declined to include beneficiaries who do not have Part B, as plaintiffs had requested, but stated that it may revisit the class definition as more evidence is presented. The parties are now proceeding with discovery on their due process claim. Plaintiffs served written discovery on October 16, 2017, and the government served written discovery on October 24, 2017.

As class counsel receives inquiries from people asking whether they can “join” the case, we advise them that no action is required of class members, but they should save any paperwork relating to their hospitalization and costs resulting from it. We also encourage them to share their observation status story on the Center’s website here: http://www.medicareadvocacy.org/submit-your-observation-status-story/

  • Jimmo v. Sebelius, No. 5:11-cv-17 (D. Vt.) (Improvement Standard).  The settlement in Jimmo was approved on January 24, 2013.  CMS issued revisions to its Medicare Benefit Policy Manual to clarify that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS also implemented a nationwide Educational Campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve. Pursuant to the settlement, counsel for the parties met twice a year to discuss problems with implementation and possible solutions.

On March 1, 2016, the Center and its co-counsel, Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the settlement agreement. The filing came after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.

If truly implemented and enforced, the settlement should improve access to skilled maintenance nursing and therapy for thousands of older adults and people with disabilities whose Medicare coverage for skilled care is denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.” Unfortunately, providers and contractors continue to illegally deny Medicare coverage and care based on an “Improvement Standard,” resulting in beneficiaries nationwide failing to obtain needed skilled nursing and therapy coverage.

The court announced its decision on the Motion for Resolution of Non-Compliance on August 18, 2016.  The Order required CMS to remedy the inadequate Educational Campaign that was a cornerstone of the original Settlement Agreement. As the judge stated, “Plaintiffs bargained for the accurate provision of information regarding the maintenance coverage standard and their rights under the Settlement Agreement would be meaningless without it.” The parties negotiated but could not come to agreement on what a Corrective Action Plan should entail.  The court then ordered each party to submit a brief explaining and justifying their proposed corrective action plans, as well as a response to the other party’s plan.

On February 2, 2017, the court released a decision ordering CMS to carry out a Corrective Action Plan to remedy noncompliance with the Settlement. The plan includes a new webpage by CMS dedicated to the Jimmo settlement with frequently asked questions and a statement (which the court largely adopted from plaintiffs’ suggested language) that affirmatively disavows the Improvement Standard; new training for Medicare contractors making coverage decisions; and a new National Call for Medicare contractors and adjudicators to correct erroneous statements that had been made on a previous call. The government was given an opportunity to object to the language of the corrective statement, and the parties negotiated final wording which was submitted to the court.  On February 16, 2017, the court approved the final wording of the statement to be used by CMS to affirmatively disavow the use of an Improvement Standard.  Importantly, the statement notes that the “Jimmo Settlement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve.”

In late August 2017 the government published the new Jimmo-webpage on the CMS website to comply with the Corrective Action Plan.  The webpage can be found here.  The webpage includes court-approved affirmative disavowal of the Improvement Standard in a blue box titled “Important Message About the Jimmo Settlement.” The webpage also contains links to Jimmo-related documents, such as the transmittals of the revised Manual provisions, and a new set of Frequently Asked Questions. The imprimatur of CMS on these materials will help beneficiaries and their advocate who are arguing against inappropriate coverage denials or service terminations.

Update: Class counsel raised the issue of some language on the Jimmo webpage in the “Additional Information” section that conflicts with the language in the “Important Message About the Jimmo Settlement” box.  Class counsel has asked that two sentences be removed from the webpage. The parties submitted briefs on this issue in October 2017 and are waiting for a ruling on whether the government must remove the two sentences from its webpage.

  • Exley v. Burwell (formerly Lessler v. Burwell), No. 3:14-cv-1230 (D. Conn.) (ALJ Delays) The Medicare statute and regulations require that an administrative law judge (ALJ) issue a decision within 90 days the filing of a request for hearing. While the Chief ALJ has stated that individual beneficiary cases should not be delayed, still most of the Center’s cases were exceeding statutory timelines for decisions.

On August 26, 2014, the Center filed a nationwide class action lawsuit in United States District Court in Connecticut. The named plaintiffs, from Connecticut, New York and Ohio, all waited longer than the statutory 90-day limit for a decision on their Medicare appeals. On January 29, 2015, defendant’s motion to dismiss was denied.  On June 10, 2015, the court granted the plaintiffs’ motion for certification of nationwide class of Medicare beneficiaries who have been or will be waiting more than 90 days for a decision on their timely-filed request for an ALJ hearing. The parties also conducted discovery. In March 2016 the court preliminarily approved a settlement and notice to the class was posted.

A Fairness Hearing was held on August 1, 2016 and the Court granted final approval of the settlement agreement. The settlement calls for the Office of Medicare Hearings and Appeals (OMHA) to continue its policy of providing beneficiary appellants with priority over other appellants in receiving ALJ decisions, to designate a Headquarters Division Director to oversee inquiries about appeals initiated by beneficiary appellants, and to address any complaints or questions concerning the processing of those appeals. OMHA will also introduce a new, more user-friendly ALJ hearing request form that allows beneficiaries to self-identify, and will also publish data about the length of processing time for beneficiary appeals.

On September 1, 2016 as part of the settlement, OMHA established a toll-free Beneficiary Help Line: (844) 419-3358.  This line, which is staffed by representatives of OMHA, will address inquiries about ALJ appeals being pursued by Medicare beneficiaries. The Center urges anyone pursuing a beneficiary appeal who believes the appeal is not receiving timely attention to call the Beneficiary Help Line. The expectation is that a call to this line will help resolve delays in cases that are eligible to be prioritized. The Beneficiary Help Line is staffed from 8:00 a.m. to 4:30 p.m., Eastern Time. If calling at other times or if the OMHA Beneficiary Help Line staff are assisting other callers, OMHA instructs callers to leave a voicemail. Please report your experiences using the Help Line to the Center at: abers@medicareadvocacy.org.

As of November 1, 2016 CMS updated scripts for 1-800-Medicare to highlight the OMHA beneficiary prioritization policy for beneficiary callers and to refer them to the toll-free OMHA Beneficiary Help Line if they have questions about filing appeals with OMHA or about ALJ appeals that are pending with OMHA. OMHA also posted the beneficiary appeals data required by the settlement on their website at http://www.hhs.gov/about/agencies/omha/about/current-workload/beneficiary-appeals-data/index.html. The data shows beneficiary appeals now being processed within or very close to the 90-day statutory time period.

In late January 2017 the Office of Medicare Hearings and Appeals issued a new ALJ request form, the OMHA-100, which is a unified request for hearing and review and can be used for all appeals to OMHA.  As part of the settlement, the form allows beneficiaries and enrollees to self-identify, making it easier for these claims to be classified as beneficiary appeals and given priority for processing. CMS has also issued instructions to appeal contractors that deal with reconsiderations (the level below ALJ hearings) the begin using revised appeal instructions that include plain-language instructions about OMHA’s beneficiary mail-stop as well as information on the beneficiary help-line that has been established at OMHA.  The OMHA-100 is available at: https://www.hhs.gov/sites/default/files/OMHA-100-Request-for-Hearing-or-Review-of-Dismissal.pdf.

  • Sherman v. Burwell (formerly Olsen-Ecker v. Burwell), No. 3:15-cv-1468 (D. Conn.) (Lower level Medicare appeals) On October 9, 2015, the Center filed a complaint in United States District Court in Connecticut against Sylvia Mathews Burwell, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Medicare beneficiaries seeking home health care coverage, and the named plaintiff represents beneficiaries who have received the usual “rubber stamp” denials at redetermination and reconsideration. The plaintiff also filed a motion for class certification, and the government filed a motion to dismiss. Written discovery was served but responses were stayed while the motion to dismiss was pending. Oral argument was held on February 29, 2016.

On August 8, 2016, the judge largely denied the government’s motion to dismiss and granted plaintiff’s motion for certification of a nationwide class. The court concluded that it had jurisdiction and decided that the case was not moot even though plaintiff’s claim had ultimately been approved. The judge dismissed the statutory claim, but found that plaintiff had stated a valid claim for relief under the Due Process Clause. He found plaintiff’s claim of policies or practices causing the denial rate sufficiently plausible to allow the case to continue to discovery. The judge also certified a nationwide class of Medicare beneficiaries of home health care services who had received adverse decisions at the first two levels of appeal on their Part A or Part B claims, and who had received an initial adverse initial determination on or after January 1, 2012.

Plaintiffs and the Secretary each served discovery and provided written responses and document production. Several depositions were held.  The court has stayed discovery deadlines as the parties discuss settlement.

Update: The parties reported to the court on October 13, 2017 that they have been in productive settlement negotiations and will file another status report or a motion for preliminary approval of a settlement  agreement by December 12, 2017. The court continued the stay until that date.

  • Ryan v. Burwell, No. 5:14-cv-269 (D. Vt.) (Prior Favorable Homebound Determination) On December 19, 2014, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit against Sylvia Mathews Burwell, the Secretary of Health and Human Services, to stop Medicare’s practice of repeatedly denying coverage for home health services for beneficiaries on the basis that they are allegedly not homebound, when Medicare has previously determined them to be homebound. (Ryan v. Burwell). The lawsuit was filed in the United States District Court in Burlington, Vermont on behalf of two Vermont residents, Marcy Ryan and John Herbert, as a regional class action lawsuit covering New England and New York.

On March 25, 2015, the government filed a motion to dismiss on the grounds that plaintiffs lack standing, that the court lacks subject matter jurisdiction, and that plaintiffs have failed to state claim on which relief may be granted.  On July 27, 2015, the court denied the government’s motion to dismiss, finding four separate grounds on which the dually eligible plaintiffs have standing. The court also found that it had subject matter jurisdiction and that plaintiffs had stated a claim on which relief could be granted.

On December 2, 2015, the court granted plaintiffs’ motion for class certification and, at request of the plaintiffs, issued clarification on the class definition on February 23, 2016.  The regional class is defined as all beneficiaries of Medicare Part A or B in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (Medicare Administrative Contractor Jurisdiction K): (a) who have received a “favorable final appellate decision” that he or she was “confined to the home,” i.e. homebound, in the appeal of a home health nursing or therapy claim denial; (b) who have subsequently been denied, or will be denied, coverage for additional service on the basis of not being homebound, on or after January 1, 2010; (c) who had a non-lapsed, viable appeal of the subsequent denial for coverage of additional home health services as of March 5, 2015, or had a particularized individual basis for tolling of any applicable appeal deadline; and (d) for whom the claim for Medicare home health coverage was filed on or before August 2, 2015.

Written discovery was served. The government filed a motion for summary judgment in November 2016 and plaintiffs filed a cross motion and responded in December.  However the parties then entered settlement talks and postponed further briefing while those negotiations proceeded.

Update: On October 11, 2017, the parties filed a joint motion for preliminary approval of a proposed settlement agreement and notice to the class, which the court approved on October 27, 2017. Notice to the class has been posted and is available here. The notice explains that The proposed settlement applies to Medicare beneficiaries in the northeast United States whose appeals for coverage of home health services were denied between January 1, 2010 and March 5, 2015 on the basis of not being homebound, and who had previously received a favorable appeal decision determining that they were homebound. More details on the class definition can be found in the notice to class members. The agreement will allow class members to have their eligible claims for home health services reviewed under the Prior Favorable Homebound provision, which directed that when a beneficiary had previously been found to be homebound in a Medicare appeal, that conclusion should be given “great weight” in any subsequent appeal for home health services, provided there had not been a significant change in the beneficiary’s condition.

The notice also instructs class members on how to file objections, which must be done by December 28, 2017. A final fairness hearing is scheduled to be held at the court in Rutland, Vermont on January 11, 2018.