Working with a private attorney, Center for Medicare Advocacy attorneys recently filed a lawsuit in federal court in San Francisco challenging the government’s reversal of position on timely written notices for hospitalized Medicare beneficiaries. The plaintiffs are Medicare beneficiaries from San Francisco and Connecticut, and organizations based in Philadelphia and San Francisco that provide information and assistance to Medicare beneficiaries. Their attorneys will seek nationwide class certification, however, and are interested in hearing from others who may be in the same situation. The lawsuit, known as Weichardt v. Thompson, No. C 03-05490 VRW (N.D.Cal.), challenges two regulations that the Secretary of Health & Human Services implemented in May 2003 and that deprive Medicare beneficiaries who are about to be discharged from a hospital of timely advance written notice of the reasons for the action and the steps that they can take.

In early 2001, the Secretary proposed regulations (42 C.F.R. §§ 422.620 and 489.27) that required hospitals to provide timely advance written notice immediately before discharging Medicare beneficiaries. 66 Fed.Reg. 7593 (Jan. 24, 2001). Two years later, after comments had been received and considered, the Secretary completely reversed course, eliminating the requirement of timely advance written notice from both regulations. 68 Fed.Reg. 16651 (April 4, 2003). As a consequence, hospitalized Medicare beneficiaries and their families do not receive clear written instruction about their rights and what actions they can take to protect those rights.

This decision by the Centers for Medicare and Medicaid Services (CMS) was apparently taken in response to an outcry from hospitals against the notice requirement. See 68 Fed.Reg. at 166659. The hospitals argued that written notices were at best unnecessary and at worst confusing to beneficiaries. Bowing once again to provider pressure to alleviate their alleged administrative burdens, CMS simply reversed position. Indeed, the regulation in existence for M+C beneficiaries (42 C.F.R. § 422.620) had previously required written notice. Thus, not only did CMS not implement a new pro-patient policy for beneficiaries in the traditional Medicare program, but it actually eliminated the beneficial policy that had been in effect for M+C beneficiaries. And, because the 2001 proposal would have provided for notices in both situations, beneficiaries and their advocates did not have a legitimate opportunity to comment on the prospect of not requiring written notices.

If you want additional information on this case, or if you or someone you know has been affected by this policy (which has been in effect since May 5, 2003) or is presently hospitalized, please contact one of plaintiffs’ attorneys. They are: Lenore Gerard at (415) 621-4822, legerard@earthlink.net; Sally Hart at (520) 322-0126, shart@medicareadvocacy.org; Vicki Gottlich and Alfred Chiplin at (202) 293-5760 ( vgottlich@medicareadvocacy.org and achiplin@medicareadvocacy.org; Judy Stein, Gill Deford, and Terry Berthelot at (860) 456-7790 (jstein@medicareadvocacy.org; gdeford@medicareadvocacy.org; tberthelot@medicareadvocacy.org).