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No. 5:14-cv-269 (D.Vt.), filed Dec. 19, 2014

Issue: Whether the failure of the Secretary to apply the “prior favorable homebound decision” rule, which accords “great weight” to previous administrative decisions establishing homebound status, violates the Medicare regulations, as implemented by the Medicare Program Integrity Manual, and the Due Process Clause.

Relief Sought: Declaratory and injunctive relief on behalf of a regional class requiring application of the prior favorable homebound decision rule. 

Updated: October 13, 2016

Status: After the complaint was filed, the plaintiffs moved for certification of a class of beneficiaries seeking coverage for home health services in the six New England states and New York.  That motion has been fully briefed, but the court first took up the government’s motion to dismiss.  The government primarily argues (1) that the named plaintiffs lack standing because, as dual beneficiaries, they have not been injured by the denial of Medicare coverage (on the theory that Medicaid coverage fully replaces Medicare), and (2) that the Medicare manual provision at issue is not binding and enforceable.

On July 27, 2015, the court denied the Secretary’s motion to dismiss, holding that the plaintiffs had standing.  2015 WL 4545806.  On January 13, 2016, the court granted plaintiffs’ motion for certification of a class that includes beneficiaries affected by the challenged policy in New England and New York, and later slightly modified it.  2016 WL 158527, as modified, 2016 WL 738758.  The Secretary responded to plaintiffs’ written discovery requests in March 2016.  In April, the Secretary initiated settlement discussions, which have been delayed by the Secretary in the last few months but which are expected soon to be renewed.

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