United States District Court, D. Vermont
OPINION AND ORDER ADOPTING DEFENDANT'S CORRECTIVE
ACTION PLAN AND MANDATING TWO ADDITIONAL REQUIREMENTS (DOC.
Christina Reiss, Chief Judge
matter comes before the court on the parties' submissions
regarding the appropriate corrective action plan to be
ordered in light of the court's conclusion that the
Secretary breached the parties' Settlement Agreement.
See Doc. 106 (August 17, 2016 Opinion and Order
GRANTING IN PART and DENYING IN PART Plaintiffs' motion
for resolution of noncompliance with the Settlement
Agreement) (the "August 17, 2016 Opinion and
Order"); Jimmo v. Burwell, 2016 WL 4401371 (D.
Vt. Aug. 17, 2016).
are represented by David J. Berger, Esq., Matthew R. Reed,
Esq., the Center for Medicare Advocacy, Inc., and Vermont
Legal Aid, Inc. The Secretary is represented by Assistant
United States Attorney M. Andrew Zee, Assistant United States
Attorney Steven Y. Bressler, and Special Assistant United
States Attorney Tamra Moore.
Factual and Procedural Background.
The Jimmo Class Action.
January 18, 2011, six individual Medicare beneficiaries (the
"Individual Plaintiffs") and seven national
organizations (the "Organizational Plaintiffs")
(collectively, "Plaintiffs") filed a class action
suit in the District of Vermont against the Secretary,
alleging, among other things, that the Secretary
"impose[d] a covert rule of thumb that operate[d] as an
additional and illegal condition of coverage and result[ed]
in the termination, reduction, or denial of coverage for
thousands of Medicare beneficiaries annually." (Doc. 13
at 2, ¶ 1.) Plaintiffs alleged this covert rule of thumb
improperly imposed an "improvement standard, "
whereby coverage for certain home health care services was
denied if a beneficiary's condition had not improved (the
"Improvement Standard"). Id. at¶2.
Plaintiffs further alleged that because of the Improvement
Standard, Medicare contractors and adjudicators were denying
Medicare coverage merely because a patient was unlikely to
improve, or in retrospect failed to improve, even when the
patient needed skilled care to maintain his or her condition
or prevent or slow further deterioration.
Secretary moved to dismiss Plaintiffs' claims on a number
of grounds, including that they failed to allege a plausible
ground for relief. The court granted the motion to dismiss in
part and denied it in part. See Jimmo v. Sebelius,
2011 WL 5104355, at *1 (D. Vt. Oct. 25, 2011). Thereafter,
without admitting liability or any wrongdoing, the Secretary
agreed to settle Plaintiffs' claims in accordance with
the terms and conditions of the Settlement Agreement. The
court approved the Settlement Agreement at a January 24, 2013
fairness hearing under Fed.R.Civ.P. 23(b)(2).
The Settlement Agreement.
to the Settlement Agreement, the parties agreed to a
"maintenance coverage standard" which provides that
"[s]killed nursing services would be covered where such
skilled nursing services are necessary to maintain the
patient's current condition or prevent or slow further
deterioration so long as the beneficiary requires skilled
care for the services to be safely and effectively
provided." (Doc. 82-1 at 13, § IX.7.a.) (the
"Maintenance Coverage Standard").
Settlement Agreement required the Secretary to make certain
revisions to the Medicare Beneficiary Policy Manual
("MBPM") to reflect the Maintenance Coverage
Standard. In its August 17, 2016 Opinion and Order, the court
concluded that the Secretary has fulfilled these obligations.
Settlement Agreement also required the Secretary to
"engage in a nationwide educational campaign"
through the Centers for Medicare and Medicaid Services
("CMS"), and in this "Educational Campaign,
" "use written materials and interactive forums
with providers and contractors, to communicate the [skilled
nursing facility ("SNF")], home health, and
[outpatient therary services ("OPT")] maintenance
coverage standards and the [inpatient rehabilitation
facility] coverage standards[.]" (Doc. 82-1 at 14,
§ IX.9.) The Settlement Agreement provided that although
Plaintiffs' counsel would be consulted and could provide
input, "CMS shall retain final authority as to the
ultimate content of the written educational materials"
and the "PowerPoint slides" used in the Educational
Campaign. Id. at 16-17, §§ IX. 12, IX.14.
Settlement Agreement provides that the court will retain
jurisdiction for thirty-six months after the conclusion of
the Secretary's Educational Campaign to "enforc[e]
the provisions of the Settlement Agreement in the event that
one of the Parties claims that there has been a breach of any
of those provisions[.]" Id. at 6, § VI.3.
March 1, 2016, after complying with the Settlement
Agreement's dispute resolution process, Plaintiffs filed
a motion to enforce the Settlement Agreement. In support of
their motion, Plaintiffs argued that the Secretary did not
adequately disavow the Improvement Standard or disseminate
the Maintenance Coverage Standard and that the
Secretary's Educational Campaign was so confusing and
inadequate that little had changed as a result of the
Jimmo settlement. Among other things, Plaintiffs
asked the court to require the Secretary "to carry out
additional educational activities to address the inaccuracies
and inadequacies of the original [Educational]
Campaign." (Doc. 94-1 at 25.)
August 17, 2016 Opinion and Order, the court granted in part
and denied in part Plaintiffs' motion to enforce, holding
the Secretary failed to fulfill the letter and spirit of the
Settlement Agreement with respect to at least one essential
component of the Educational Campaign. Plaintiffs have
provided persuasive evidence that at least some of the
information provided by the Secretary in the Educational
Campaign was inaccurate, nonresponsive, and failed to reflect
the maintenance coverage standard.
(Doc. 106 at 18.)
the parties negotiated extensively at arms-length and in good
faith to reach an agreed upon corrective action plan. When
they were unable to reach a consensus, each party submitted a
proposed corrective action plan accompanied by a memorandum
explaining why the court should adopt the party's plan.
The Proposed ...