Archived Article: Litigation - Center And CT DSS win Victory in CT DSS Vs. Thompson (Copyright Center for Medicare Advocacy, Inc.)

CENTER FOR MEDICARE ADVOCACY & CONNECTICUT DEPARTMENT OF SOCIAL SERVICES WIN VICTORY IN FEDERAL CASE SEEKING DUE PROCESS RIGHTS FOR MEDICARE BENEFICIARIES

Connecticut State Department of Social Services v. Thompson

In a comprehensive 56-page ruling, a federal district judge in Bridgeport held on September 10, 2002 that the Secretary, through one of his Medicare fiscal intermediaries, United Government Services (UGS), had failed to follow the Medicare regulations and the due process clause for dually eligible beneficiaries in Connecticut. Ruling on cross-motions for summary judgment, the court granted relief to plaintiffs on three of their four claims, while giving judgment to the Secretary on plaintiffs' contention that the initial determinations and reconsiderations had not been timely and accurate. Connecticut State Department of Social Services et al v. Tommy Thompson, Secretary US Department of Health and Human Services, CA No. 3:99 CV 2020 (SRU) (D. Conn. Sept. 10, 2002).

Judge Underhill concluded that the Secretary erred in failing to issue initial determinations when a home health agency did not submit a claim in response to a request by a beneficiary for an initial determination. The court stated that it was legally immaterial "whether a timely and complete claim has been filed by the provider." Second, the judge concluded that the initial determinations used by the intermediary, which were Medicare Summary Notices, failed to provide sufficient information, in particular the regulatory basis for the denial of coverage: "The statutes ... clearly contemplate such a reference." Third, he held that the Secretary had to send a copy of the initial determination to the beneficiary's representative.

The Judge was not persuaded by the Secretary's argument that MSNs contain information which the representative should not see on privacy grounds: "The plaintiffs do not complain that a MSN is not sent to a beneficiary's representative, but that a notice of initial determination is not sent." By implication, the court held that, if the Secretary cannot send a copy of the MSN to the representative, he will have to find some other way to issue initial determinations which will not cut representatives out of the picture.

The decision is also useful in its several collateral rulings, as the Court found jurisdiction over the beneficiary's claims under several theories and determined that the beneficiaries had a property interest in Medicare coverage. The Court has not issued an order yet, but is expected to do so in October.