A U.S. district court certifies a class and denies a motion to dismiss a claim against the Department of Health and Human Services, ruling that there is evidence that Medicare has a policy of routinely upholding denials of home health services at the first two levels of review. Sherman v. Burwell (U.S. Dist. Ct., D. Conn., No. 3:15-cv-01468(JAM), Aug. 8, 2016).
Bradley Olsen-Ecker was a Medicare beneficiary who required home care after a hospitalization. He received care from a Medicare-certified home health agency, including skilled nursing visits and physical therapy. After a few months, Medicare informed him that it would no longer cover home care because unskilled caregivers could meet his needs. Mr. Olsen-Ecker appealed the decision. Medicare denied the appeals at three levels of review. Finally, Mr. Olsen-Ecker's physical therapist submitted a "demand bill" to Medicare, and Medicare reimbursed the physical therapist for its services. Mr. Olsen-Ecker passed away during the appeal process.
Mr. Olsen-Ecker's estate filed a class action lawsuit against the Department of Health and Human Services (HHS) for violating due process, alleging that the agency has a secret policy to deny home health services claims at the first two levels of review. According to the estate, HHS denies up to 99 percent of claims at the first two levels of review and that at the administrative hearing level of review, administrative law judges (ALJs) reverse the lower levels of review 62 percent of the time. HHS filed a motion to dismiss for failure to state a claim.
The U.S. District Court, District of Connecticut, denies the motion to dismiss. The court certifies the class and rules that there is plausible evidence that policies exist that deprive some Medicare beneficiaries of meaningful review. According to the court, the high number of reversals at the ALJ level of review suggests that "whatever review occurred at the first two levels of review could have plausibly contained defects, because absent some aberration, the first two levels of review should have granted coverage to a far greater proportion of beneficiaries."
Attorneys from the Center for Medicare Advocacy represented the estate. “We hope,” said Judith Stein, the Center’s Executive Director, “that this case will eventually result in Medicare beneficiaries’ receiving fair and accurate appeal decisions, without having to present their case at a hearing.”
For the Center’s news alert on the decision, click here.
For the full text of this decision, go to: https://ecf.ctd.uscourts.gov/cgi-bin/show_public_doc?2015cv1468-55
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