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

Updated: September 22, 2009

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.

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.  The motion to dismiss was denied as moot. Plaintiff Fournier is now attempting to exhaust administrative remedies, and has been joined (via an amended complaint) by an additional plaintiff who has exhausted.  Plaintiffs are seeking to file another amended complaint that would add a third plaintiff.