CT DSS v. Leavitt

No. 399CV2020(SRU) (D.Conn.), filed October 18, 1999

Last Updated: August 25, 2006

Issue: Whether the Dept. of Health and Human Services (via CMS) violates the Medicare statute and due process clause by allowing a fiscal intermediary, United Government Services (UGS), to fail to provide written initial determinations, timely initial determinations and reconsiderations, and correct decisions to dual beneficiaries in Connecticut receiving home health care.

Relief sought: Statewide class. Declaratory and injunctive relief against HHS forcing it to take steps to correct UGS‘ actions and inactions or to replace it with another intermediary.

Status:  On September 10, 2002, the Judge issued a comprehensive 56-page decision largely granting Plaintiffs’ motion for summary judgment.  On January 8, 2003, the district court issued its order implementing the decision of September 10, 2002.  On February 20, 2003, The Court denied the government’s motion for reconsideration and entered final judgment.  The court’s decision, implementing order, and order denying reconsideration are all reported at 242 F.Supp.2d 127.

On October 23, 2003, the district judge granted plaintiffs’ motion for an award of attorneys’ fees and expenses under the Equal Access to Justice Act (EAJA)(289 F.Supp.2d 198). The court determined that the government’s position on the merits was not “substantially justified” (i.e., unreasonable). It also held that there were “special factors” justifying an hourly rate above the rate set in the EAJA ($125) because plaintiffs’ attorneys possessed expertise necessary to bring the case. Accordingly, the court awarded the attorneys from the Center $325 per hour, which is in line with market rates in Connecticut for attorneys of comparable experience.

On October 28, 2005, the Court of Appeals for the Second Circuit reversed in all respects on the merits. 428 F.3d 138 (2d Cir. 2005).  It held that neither the regulations nor due process required a fiscal intermediary 1) to issue a notice of initial determination when the provider failed to file a home health claim and that beneficiaries could not file claims; 2) to include a statutory or regulatory citation in the Medicare Summary Notice; and 3) to send a copy of the notice of initial determination to the beneficiary’s representative.  Plaintiffs’ petition for rehearing was denied.

Because of the Court of Appeals decision on the merits, plaintiffs were no longer prevailing parties, and, accordingly, the decision awarding fees was also reversed.

Since plaintiffs did not seek Supreme Court review, the case is over.