Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jimmo v. Burwell

United States District Court, D. Vermont

February 2, 2017

GLENDA JIMMO, et al., Plaintiffs,
SYLVIA MATHEWS BURWELL, Secretary of Health and Human Services, Defendant.


          Christina Reiss, Chief Judge

         This 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).

         Plaintiffs 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.

         I. Factual and Procedural Background.

         A. The Jimmo Class Action.

         On 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.

         The 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).

         B. The Settlement Agreement.

         Pursuant 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").[1]

         The 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.

         The 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.

         The 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.

         On 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.)

         In its August 17, 2016 Opinion and Order, the court granted in part and denied in part Plaintiffs' motion to enforce, holding that:

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.)

         Thereafter, 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.

         C. The Proposed ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.