Issue: Whether the Secretary's aggressive methods for attempting to collect payments under his Medicare Secondary Payer (MSP) program, directed at beneficiaries and their attorneys, violates the Medicare statute and the Due Process Clause.

Relief sought: Declaratory and injunctive relief prohibiting defendant's MSP recovery practices, including termination of Social Security benefits before there has been resolution of an administrative appeal of the MSP claim or waiver of recovery request, and requiring attorneys to withhold liability proceeds from their clients.

Updated: January 6, 2012

Status: The court denied defendant's motion to dismiss, holding that the plaintiffs had standing and that exhaustion should be waived. 2009 WL 4497456 (D.Ariz., Nov. 30, 2009). Defendant then agreed to plaintiffs' amending the complaint again to add an additional plaintiff.

On April 12, 2010, the court granted plaintiffs' motion to compel discovery and denied the Secretary's motion to limit judicial review to the administrative record. 2010 WL 1452932. Both parties then engaged in discovery. Plaintiffs' motion for certification of a nationwide class has been fully briefed. Briefing on the cross-motions for summary judgment was completed in December 2010. 

On May 9, 2011, the district court certified the nationwide class of Medicare beneficiaries and granted summary judgment to plaintiffs while denying the Secretary’s motion for summary judgment.  — F.Supp.2d —, 2011 WL 2040219.  The court held that the Secretary’s implementation of the MSP program violated the Medicare statute, but did not reach the due process claims.  The Secretary changed some of the offending language in response to the order, but, on June 30, 2011, the Secretary filed her notice of appeal.  The appeal was fully briefed during the fall of 2011, and oral argument is expected in the spring.