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A federal judge in Connecticut has certified a nationwide class of beneficiaries who are challenging the Medicare program’s failure to render decisions at the administrative law judge (ALJ) level within the 90 days required by law.  Earlier in the year, the judge had denied the government’s motion to dismiss in the case, Lessler v. Burwell (now captioned Exley v. Burwell), No. 3:14-cv-1230 (JAM) (D. Conn. June 10, 2015).  Judges in two similar cases brought by medical providers about delays at the ALJ level had previously granted the government’s motions to dismiss.

Plaintiffs’ lead attorney, Alice Bers of the Center for Medicare Advocacy, welcomed the decision: “This is the perfect case for class certification, as Medicare ALJs throughout the country have been depriving beneficiaries of timely decisions for years. We hope this order will spur the government to settle the case.”  The Center’s Executive Director, Judith Stein, echoed Bers’ observations: “Even though Medicare has recently been sending beneficiaries to the front of the ALJ line so that they do not have to wait as long as providers – though still well beyond the mandated 90 days we have to remember that Medicare is all about beneficiaries.  It is especially important to guarantee that this vulnerable population receives speedy ALJ review because the two levels of the administrative process below ALJs invariably rule against beneficiaries.”

One of the named plaintiffs, Stephen Lessler of Connecticut, appealed for Medicare coverage of his nursing home stay in November 2013.  His case stalled at the ALJ level, and he eventually received a favorable decision on September 24, 2014, which was one day after he died. A refund went to his estate.

In a methodical opinion, Judge Jeffrey Meyer concluded that plaintiffs met the five required factors for class certification.  He rejected the government’s argument that the claims of the six named plaintiffs had become moot when they suddenly received ALJ hearings and decisions shortly after the complaint was filed – though they had waited without hearings from over six months to almost two years prior to the filing.  The judge’s decision chided the government for “picking off” plaintiffs in this manner.  The court also agreed with plaintiffs that a national class was appropriate because “the claims at issue involve a nationwide program … with centrally administered ALJs.”       

Unless it is settled, the case will now proceed to the merits stage, with the parties scheduled to file cross-motions for summary judgment in the late summer.

For more information contact attorney Alice Bers at 860-456-7790 or

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