No. CV 08-2309-PHX-ROS(D.Ariz.), filed December 18, 2008

Issue: Whether the Secretary's exclusion of coverage for dental care in extraordinary circumstances where the care is necessary to treat a medical condition violates the Medicare statute and policy provisions, and the Equal Protection Clause.

Relief Sought: Declaratory judgment that the policy is invalid, and a preliminary and permanent injunction against the application of the policy to an individual beneficiary.

Updated: January 6, 2012

Status: The district judge denied plaintiff Fournier's request for a preliminary injunction on the ground that he was not entitled to waiver of exhaustion.  Amended complaints allowing two other named plaintiffs to participate were permitted to be filed, with the court expressly recognizing that the venue requirement of 42 U.S.C. § 405(g) did not preclude non-residents of the district from participating as long as one plaintiff was from that district. 677 F.Supp.2d 1172. The court has allowed the plaintiff to engage in limited discovery. As requested by the court, the parties have fully briefed two discrete issues involving the merits and class certification, and are awaiting the court's action on those issues before the case proceeds further. After the tragic death of Chief Judge Roll in the Tucson shootings, Judge Silver, who was the judge on this case, became the Chief Judge.  She then reassigned the case to Senior Judge Carroll, but it was reassigned back to Chief Judge Silver in October.  The motions remain pending.