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No. 09-cv-16 (D.Vt.), filed January 22, 2009


Issue: Whether the Secretary's policy of terminating Medicare coverage for a home health patient on the ground that her condition is stable or is not improving violates the Medicare statute and regulations.


Relief Sought: Declaratory and permanent injunctive relief prohibiting application of the "improvement" standard, with an award of coverage to the plaintiff.


Updated: May 30, 2012


Status: The case was designated by the clerk to be treated like a typical Social Security disability case.  Plaintiff moved unsuccessfully to have the case removed from the docket of the magistrate judge.  She also moved to be allowed to do discovery. The magistrate judge denied that request, and plaintiff filed objections with the district judge. The district judge agreed with the magistrate judge.

After full briefing and oral argument, the magistrate judge recommended, on August 27, 2010, that the plaintiff's motion for an order reversing the Secretary's decision be granted and the Secretary's motion to affirm be denied. He concluded that the ALJ's findings were not supported by substantial evidence, and made observations suggesting that an improvement standard would be unacceptable. At the same time, however, the magistrate judge declined plaintiff's additional request for a ruling that declaratory relief was needed to correct the Secretary's due process violation on the ground that plaintiff had not shown that the record demonstrated that the Secretary was using an illegal rule of thumb or presumption. Plaintiff filed objections to this part of the recommendation, while the Secretary did not file objections.

In a decision issued October 25, 2010, the district judge refused to grant additional relief, but held that the Secretary had been using an illegal "stability presumption" (also known as the Improvement Standard), citing several previous decisions and manual provisions.  2011 WL 4273238 (D.Vt. 2010).  She remanded the case to the Secretary for reconsideration in light of her analysis of the law. Neither party appealed.

On May 12, 2011, the court granted the fee motion in part and denied it in part.  2011 WL 1832771.  The major reduction from the requested fees was on the theory that plaintiff should not be reimbursed for her attorney’s unsuccessful efforts to remove the case from the magistrate judge’s jurisdiction and from attempting to carry out discovery.  Following a 2010 Supreme Court decision, the court ordered that the fee payment be made to the plaintiff herself rather than to her attorneys.  Neither party appealed the fee decision.  Because of difficulty in locating the plaintiff's address, the government ultimately paid the fees to her counsel directly, thus ending the case.

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