Ryan et al v. Burwell

Filing 72

OPINION AND ORDER granting 66 Motion for Clarification re: 65 Opinion and Order (class certification).. Signed by Judge Geoffrey W. Crawford on 2/23/2016. (esb)

U.S. DISTRICT COURT
DISTRICT OF VERMONT
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MARCELLA RYAN and
JOHN HERBERT,
on behalf of themselves and
all others similarly situated,
Plaintiffs,
v.
SYLVIA MATHEWS BURWELL,
Secretary of Health and Human Services,
Defendant.

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FILED

20f6FEB 23 AM II: 37

BYDE~RK
Case No.5: 14-cv-00269

OPINION AND ORDER RE:

PLAINTIFFS' MOTION FOR CLARIFICATION

(Doc. 66)

In a January 13, 2016 Opinion and Order, the court certified a regional class of Medicare

beneficiaries who "(a) have received Medicare coverage for home health nursing or therapy
services on the basis of a 'favorable final appellate decision' and (b) who have subsequently
been denied, or will be denied, coverage for additional services on the basis of not being
homebound, on or after January 1, 20lO." (Doc. 65 at 14.) The certification also included the
requirement that, "[a]bsent a particularized individual basis for tolling, the class is limited to
claimants who satisfied 42 U.S.C. § 405(g)'s 60-day filing requirement as of March 5, 2015.
The class is closed such that it does not include individuals who filed new claims for Medicare
benefits on or after August 3, 2015." (fd.)
Plaintiffs have filed a Motion for Clarification ofthe January 13, 2016 decision, noting
that § 405(g) contains both an exhaustion requirement and a 60-day filing requirement, and
requesting that the court clarify that the class includes beneficiaries who had not exhausted their

administrative remedies but had a live claim at any stage of administrative review as of March 5,
2015. (Doc. 66.) Plaintiffs accordingly contend that the regional class should be defined as
follows:
All beneficiaries of Medicare Part A or B, in Connecticut, Maine, Massachusetts,
New Hampshire, New York, Rhode Island and Vermont (Medicare Administrator
Contractor Jurisdiction K) who:
(a) Have received Medicare coverage for home health nursing or therapy services
on the basis of a "favorable final appellate decision";
(b) Have subsequently been denied, or will be denied, coverage for additional
services on the basis ofnot being homebound, on or after January 1, 2010;
(c) Had a viable appeal of the subsequent denial for coverage of additional home
health services as of March 5, 201 [5], including a particularized individual
basis for tolling of any applicable appeal deadline; and
(d) For whom the claim for Medicare home health coverage was filed on or
before August 2,2015.
(Id. at 3.)

The Secretary concurs that the class definition should include beneficiaries with nonlapsed appeals, and does not object to Plaintiffs' request that the class be clarified to include
beneficiaries who have a viable appeal as of March 5, 2015. (See Doc. 71 at 2.) The Secretary
also proposes two other modifications to Plaintiffs' proposed (clarified) class definition. First,
the Secretary asserts that Plaintiffs' proposed paragraph (a) would require the class member to
identify two prior favorable appellate decisions awarding home health services, while only one
such decision is referenced by the manual provision at issue. (Id. at 2-3.) The Secretary
therefore proposes revising paragraph (a) to read: "Have received a favorable final appellate
decision that he or she was 'confined to the home: i.e. homebound, in the appeal of a home
health nursing or therapy claim deniaL" (Id. at 3.) Second, the Secretary asserts that proposed
paragraph (c) would improperly require the class member to show both a non-lapsed, "viable

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appeal" and a "particularized individual basis for tolling." (Id.) The Secretary therefore
proposes replacing the word "including" with the phrase "or had." (Id.)
The court concurs with all of the parties' proposed clarifications. The clarification
adding the "viable appeal" language is uncontested, and conforms the class definition to the
court's intent. The Secretary's two additional proposed clarifications are minor, and in fact
ensure that the definition is not interpreted as unnecessarily narrow.

Conclusion
Plaintiffs' Motion for Clarification (Doc. 66) is GRANTED as modified by the
Secretary's additional clarifications. The class definition is modified to read as follows:
All beneficiaries of Medicare Part A or B, in Connecticut, Maine, Massachusetts,
New Hampshire, New York, Rhode Island and Vermont (Medicare Administrator
Contractor Jurisdiction K):
(a) Who have received a "favorable final appellate decision" that he or she was
"confined to home," i.e., homebound, in the appeal of a home health nursing
or therapy claim denial;
(b) Who have subsequently been denied, or will be denied, coverage for
additional service on the basis of not being homebound, on or after January 1,
2010;
(c) Who had a non-lapsed, viable appeal of the subsequent denial for coverage of
additional home health services as of March 5, 2015, or had a particularized
individual basis for tolling of any applicable appeal deadline; and
(d) For whom the claim for Medicare home health coverage was filed on or
before August 2,2015.
Dated at Rutland, in the District of Vermont, this 23rd day of February, 2016.

<:~
Geoffrey W. Crawford, Judge
United States District Court

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