Johnson v. Becerra

• Decision Date: 05 April 2023
• Docket Number: 1:22-cv-03024 (TNM)
• Parties: CATHERINE JOHNSON, et al., Plaintiffs, v. XAVIER BECERRA, in his official capacity as Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Columbia

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CATHERINE JOHNSON, et al., Plaintiffs, v. XAVIER BECERRA, in his official capacity as Secretary of Health and Human Services, Defendant.

No. 1:22-cv-03024 (TNM)

United States District Court, District of Columbia

April 5, 2023

MEMORANDUM OPINION

TREVOR N. MCFADDEN, U.S.D.J.

Medicare beneficiaries with chronic, debilitating conditions have struggled to find home health agencies (HHAs) willing or able to provide them with in-home aide services. They now sue the Secretary of Health and Human Services (HHS) for his role in administering the Medicare program. Plaintiffs allege that an assortment of the Secretary's policies and practices deter the availability of aide services in violation of the Medicare statute and the Rehabilitation Act.

The Secretary moves to dismiss for lack of subject matter jurisdiction and alternatively for failure to state a claim. Because Plaintiffs lack standing to challenge the Secretary's policies, the Court lacks subject matter jurisdiction and must grant the Secretary's motion.

I.

A.

Medicare reimburses private agencies that care for eligible aged and disabled persons. The Centers for Medicare & Medicaid Services (CMS), a component of HHS, administers this health insurance program. Medicare covers some services that are provided in the home by participating home health agencies. These services include skilled nursing services, physical and occupational therapy, and, relevant here, “part-time or intermittent services of a home health aide.” 42 U.S.C § 1395x(m)(1), (2), (4).

Home health aides “provide hands-on personal care to the beneficiary, or services that are needed to maintain the beneficiary's health, or [] facilitate treatment of the beneficiary's illness or injury.” Compl. ¶ 43; see also C.F.R. § 409.45(b)(1). An aide might, for example, assist a beneficiary with bathing, dressing, or moving around his home. See Compl. ¶ 44. Aides may also provide incidental services, such as changing bed linens, personal laundry, or preparing a light meal. See Compl. ¶ 45; see also C.F.R. § 409.45(b)(4). Medicare covers up to 28 hours (or, in some cases, up to 35 hours) of aide services per week. See 42 U.S.C. § 1395x(m).

If a beneficiary is eligible and referred to home health services, the beneficiary identifies an HHA in his area that is willing and able to accept him as a patient. To help patients decide which HHA is right for them, the Medicare statute requires the Secretary to collect care quality data from HHAs and share that data with the public. See 42 U.S.C. § 1395fff(b)(3)(B)(v); 42 C.F.R. § 484.245. To do so, the Secretary publishes a consumer-facing metric known as the “Quality of Patient Care Star Ratings.” See generally Fact Sheet: Quality of Patient Care Star Rating, CMS, https://perma.cc/53Z6-LVKK. This web-based system assigns each HHA a rating ranging from one to five stars, with five stars indicating highest quality. See id. at 1. The Star Ratings are determined using a formula based on “seven measurements of quality.” Id. Five track patient improvement, such as improvement in mobility or breathing. See id.

All HHAs reserve the right to choose which patients they serve. And an HHA need not accept Medicare at all. See 42 U.S.C. § 1395a(a) (providing that a beneficiary may obtain health services “if such institution, agency, or person undertakes to provide him such services” (emphasis added)). More, an HHA may only accept a patient when it reasonably expects that it can meet the patient's needs and provide the services described in her plan of care. See 42 C.F.R. § 484.60(a)(1) (“Patients are accepted for treatment on the reasonable expectation that an HHA can meet the patient's medical, nursing, rehabilitative, and social needs in his or her place of residency.”). And once an HHA has accepted a patient, it must provide care as described in the patient's plan of care. See id. § 484.60 (“Each patient must receive the home health services that are written in an individualized plan of care ....”).

Medicare imposes other conditions of participation on HHAs. For example, an HHA is required to “arrange a safe and appropriate transfer to other care entities” if it discharges a patient. Id. § 484.50(d)(1). It must also accept, document, and investigate patient complaints. See id. § 484.50(e)(1). If CMS receives many complaints, it must survey the HHA for compliance. See 42 U.S.C. § 1395bbb(c)(2)(B)(ii). CMS must also conduct a standard survey of every HHA no less than once every three years. See id. § 1395bbb(c)(2)(A). And HHAs must meet all applicable civil rights requirements, including Section 504 of the Rehabilitation Act of 1973. See 42 C.F.R. § 489.10.

Under the Medicare statute, the Secretary has the “duty and responsibility” to “assure” that “the enforcement of such conditions and requirements are adequate to protect the health and safety of individuals under the care of a[n] [HHA] and to promote the effective and efficient use of public moneys.” Id. § 1395bbb(b). CMS has the concomitant responsibility to terminate agreements with HHAs that fail to comply with the conditions and requirements of participation. See 42 C.F.R. §§ 489.53(a)(9), 489.2(b)(3).

Because these services are not provided directly by the federal government, Medicare reimburses participating HHAs when they provide covered services. To control costs, Medicare pays HHAs prospectively for their services rather than reimbursing providers after-the-fact. This is required by statute. See 42 U.S.C. § 1395fff(a). Medicare reimbursements are based on 30-day periods of home health care. See id. § 1395fff(b)(2)(B). To calculate payments, each period is categorized into one of 432 “case-mix” groups based on the beneficiary's specific care requirements. See 42 C.F.R. § 484.202. For instance, Medicare pays a higher rate for treatment of patients with certain comorbidities or for patients in a clinical grouping that has historically required more intensive care. The Secretary annually updates payment rates and policies through administrative rulemaking. See Compl. ¶ 58.

B.

Now to the substance of this case. The individual Plaintiffs in this putative class action are Medicare beneficiaries with chronic, disabling conditions. See Compl. ¶¶ 15-17. Though Medicare covers their aide services, they have struggled to find providers willing or able to provide those services. At times, Plaintiffs have found HHAs to accept them as Medicare patients. Even then, they were not provided with the full amount or duration of aide described in their plans of care. See, e.g., id. ¶¶ 88-90, 112. To bridge gaps, these Plaintiffs have relied on assistance from family members and privately paid aides. See id. ¶¶ 101, 112, 135. But selfhelp only goes so far. Plaintiffs suffer deteriorating health during times of intermittent care. See id. ¶¶ 91-99, 110-13. And, unable to obtain needed services at home, they have been forced to resort to institutional settings, such as hospitals or nursing homes, to obtain care. See id. ¶¶ 11417.

Consider lead Plaintiff Catherine Johnson, who suffers from quadriplegia resulting from multiple sclerosis. See id. ¶¶ 81-82. Following a period of insufficient and irregular home health care, she was hospitalized in the intensive care unit. See id. ¶ 95. After hospitalization, Johnson had to find another Medicare-certified HHA. See id. ¶ 100. And although her eligibility did not change, that second HHA stopped providing aide services after only 60 days. See Id. That same HHA, however, continued to provide other kinds of Medicare-covered home health services. See id. So Johnson again resorted to paying out-of-pocket for more aide services, even though she was under the care of an HHA. See id. ¶ 101.

Joining the individual Plaintiffs in this suit are the National Multiple Sclerosis Society and Team Gleason. See id. ¶¶ 18-19. Many individuals these groups serve struggle to obtain home care services, including Medicare-covered home health aide services. See id. ¶¶ 147-48, 166. In response, these groups have diverted resources to fund private aide care for Medicare beneficiaries like Johnson. See id. ¶¶ 150-59, 165-69.

Plaintiffs sued the Secretary for his role in administering Medicare's home health benefit, and later moved for class certification. See Mot. to Certify Class, ECF No. 26. First, they allege that various of the Secretary's “policies and practices . . . impede and restrict the availability and accessibility of Medicare-covered home health aide services.” Id. ¶ 188. This, they claim, violates the Secretary's statutory “duty to oversee and enforce the Medicare Conditions of Participation and requirements.” Id. Second, Plaintiffs allege that the Secretary's “policies and practices discriminate against Plaintiffs . . . on the basis of disability” in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Id. ¶ 192. They argue the Secretary is violating § 504 and its implementing regulations by administering Medicare in a way that risks unnecessary institutionalization of beneficiaries with chronic conditions. See id. ¶ 193.

The Secretary now moves to dismiss all claims, see Mot. to Dismiss (MTD), ECF No. 21, and the Court held a hearing on that motion. He argues that the Court lacks subject matter jurisdiction and alternatively that Plaintiffs fail to state a claim. The Court agrees that it lacks subject matter jurisdiction and will grant the Secretary's motion to dismiss.

II.

Before it may pass on the merits of Plaintiffs' claims, the Court must first confirm its jurisdiction over this case. Rule 12(b)(1) provides for the dismissal of an action for lack of subject matter jurisdiction, including lack of standing. See Lawyers' Comm. For 9/11 Inquiry, Inc v. Wray, 424...