Bremby v. Burwell

No. 3:15-cv-01397 (DJS), filed September 22, 2015

Issue: Whether the Secretary violated the Medicare statute and the Due Process Clause by not recognizing that Vitamin B-12 injections represent a per se skilled nursing service and therefore the service should have been covered, and, in general, by failing to recognize the right to coverage for per se skilled nursing services.

Relief sought: Declaratory and injunctive relief prohibiting the Secretary from not covering a per se skilled nursing service, and reversal of the decision denying coverage.

Updated: October 13, 2016

Status: On December 28, 2015, the Secretary filed a motion to remand, which plaintiff opposed. After the Court granted the motion on April 29, the Medicare Appeals Council, on June 13, reversed itself and approved the coverage. The decision, however, still included language suggesting that the Secretary was not following the law regarding per se skilled services. Plaintiff objected to the Secretary’s suggestion in a status report that the case was now moot, arguing that the requested injunctive and declaratory relief was not mooted out by the Council’s decision on the individual claim for coverage. The Court ordered the Secretary to file a motion to dismiss on her mootness contention, and that motion is expected to be fully briefed by October 20, 2016.