CMA filed a new Complaint on behalf of individuals who have lost health care and/or have had to pay out-of-pocket or are subject to Medicaid estate recovery because Medicare coverage was erroneously denied.   

In early August, a federal judge in Connecticut approved a settlement in a nationwide class action lawsuit that will ensure that Medicare beneficiaries receive speedy hearings and decisions from ALJs on their appeals of coverage denials. Exley v. Burwell, No. 14-cv-01230 (D.Conn., Aug. 1, 2016).  A week after approving the Exley settlement, the same judge in a related case challenging the 98% denial rate at the two levels of appeal below the ALJ level, denied the government’s motion to dismiss and granted the plaintiff’s motion for certification of a nationwide class. Sherman v. Burwell, No. 15-cv-1468 (D.Conn., Aug. 8, 2016).

In the Sherman challenge to the denial rate at the first two levels of appeal, the government had sought to have the case dismissed on two jurisdictional grounds.  The judge rejected both arguments, however, holding that the plaintiff was not required to exhaust administrative remedies in order to bring the claim to court and that the case had not been mooted out when coverage of the plaintiff’s individual claim was approved after the filing of the court case.  The court also declined to dismiss the case by concluding that the plaintiff had stated a plausible claim for relief under the Due Process Clause in the contention that a “secret policy” was the cause of the dramatic rise in the denial rate.

In addition, the judge certified a nationwide class of Medicare beneficiaries of home health care services who received an adverse initial decision dated on or after January 1, 2012 and who received or will receive adverse decisions at the Redetermination and Reconsideration levels of appeal.  The immediate effect of the decision is that the government must respond to the written discovery requests that plaintiff had submitted prior to the motion to dismiss. The Foundation Board applied an additional $10,000 grant to this case.

Update as of April 19, 2018 - After discovery was conducted, the parties began settlement negotiations and filed a joint motion for preliminary approval of an agreement in December 2017. Under the agreement, as approved by the judge, the Medicare agency transmitted four memoranda containing important principles for deciding home health appeals to the Medicare contractors that handle those decisions at the first and second levels of review. The principles expressed in the transmittals are key to fair decision-making and will reinforce compliance with beneficiaries’ due process protections in the administrative appeal system. For example, the principles include that the burden of proof is on the Medicare decision-maker to show why coverage is not available, not on the beneficiary.