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No. 8900-M Civil (D.N.M.) Original Case Filed In 1970, Petition To Enforce Filed May 3, 2001

Updated: December 15, 2004

Issue: Whether the failure of the Secretary, through the intermediary responsible for New Mexico, to provide a pre-deprivation hearing to a New Mexico home health beneficiary, violated a previous court order.

Relief sought: Hold the Secretary in contempt, enforce prior court orders, require monitoring of the Secretary’s actions, and provide relief to the individual petitioners.

Status: Defendant opposed the petition to enforce largely on the ground that the failure to provide pre-deprivation hearings was a mistake which had now been corrected. The petitioner received a hearing, and essentially got all the relief which was possible. It was agreed, however, that plaintiffs could take several depositions to determine what had happened and what steps the Secretary would take in the future to prevent the same problem from reoccurring. Depositions of two CMS (formerly HCFA) personnel were taken and depositions of several of the intermediary’s employees were held.  Using the information from these depositions, plaintiffs filed a reply brief in support of their motion to enforce in February 2002.  After the government filed a response in March 2002, the matter awaited a hearing or decision by the court.  However, the judge who had had the case for thirty years died in December 2002 without having held a hearing.  The case was reassigned to Judge LeRoy Hansen but, in the meantime, petitioner Herrick died, leaving the present status of the pending motion unclear.

On November 9, 2004, 3-1/2 years after the petition to enforce was filed, the district court dismissed the petition as moot, and denied Ms. Herrick's motion for substitution as futile.  Petitioners do not intend to appeal, so that the petition to enforce is concluded.

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