Martinez v. Bowen

• Decision Date: 14 October 1986
• Docket Number: No. 8990-M Civ.,8990-M Civ.
• Citation: 655 F. Supp. 95
• Parties: Jose R. MARTINEZ, et al., Plaintiffs, and James Lannom, et al., Petitioners, v. Otis R. BOWEN, Secretary of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

655 F. Supp. 95

Jose R. MARTINEZ, et al., Plaintiffs and James Lannom, et al., Petitioners, v. Otis R. BOWEN, Secretary of Health and Human Services, et al., Defendants.

No. 8990-M Civ.

United States District Court, D. New Mexico.

October 14, 1986.

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Patricia A. Butler, Staff Atty., National Legal Program on Health Problems of the Poor, Los Angeles, Cal., Earl Wylie Potter, Santa Fe Legal Aid Society, Santa Fe, N.M., for plaintiff.

Sutin, Thayer & Browne, Martha J. Kaser, Albuquerque, N.M., for amicus curiae New Mexico Ass'n for Homecare, Inc.

John Vail, New Mexico Legal Services Support Project, Albuquerque, N.M., Ray L. Fuller, Southern New Mexico Legal Services Inc., Las Cruces, N.M., Peter Komlos-Hrobsky, National Senior Citizens Law Center, Los Angeles, Cal., Michael Parks, National Health Law Program, Los Angeles, Cal., for plaintiffs.

William L. Lutz, U.S. Atty., Ronald F. Ross, Asst. U.S. Atty., Albuquerque, N.M., and Richard K. Willard, Asst. Atty. Gen., Sheila Lieber, David M. Glass, Attys., Dept. of Justice, Washington, D.C., for federal defendants.

MEMORANDUM OPINION AND ORDER

MECHEM, Senior District Judge.

This matter came on for consideration on defendants' motion to strike petitioners' motion to enforce the order on remand entered April 23, 1973 (Order) and on defendants' motion to vacate the Order. Counsel have treated the motion to strike more like a motion to dismiss, and so have I. Wright & Miller, Fed.Pract. & Procedure, § 1380. Having considered the motions, the responses, the affidavits, the briefs of counsel and the arguments of counsel at the hearing on July 2, 1986, I find that defendants' motions are not well taken and they will be denied.

I. Facts

Medicare Part A and B beneficiaries began this suit in 1971. 42 U.S.C. § 1395 et seq.. Defendant Blue Cross Association of New Mexico had determined that plaintiffs were ineligible for home health care services and, without affording the plaintiffs a pre-termination hearing, had caused health care providers to cease providing services to plaintiffs. Martinez v. Richardson, 472 F.2d 1121, 1124-25 (10th Cir.1973). The suit culminated in the Order which enjoined defendants "from terminating home health care benefits in the future to plaintiffs Baca and Aguilar and to all those Medicare beneficiaries similarly situated without first providing an evidentiary hearing on the merits of their terminations." Petitioners seek to reactivate the order.

For purposes of a motion to dismiss, I accept the allegations in the pleadings and at the hearing as true, Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980). The current dispute arises from the decision of the present Medicare intermediary, Blue Cross-Blue Shield of New Mexico (Blue Cross) not to reimburse more than one catheter change per month per patient without documented medical need. Until July 1985, Part A Medicare had reimbursed more frequent catheter changes for 20 Chaves County Home Health Services patients. Then, on the advice of the Medical Advisory Committee, Blue Cross began disallowing these claims. As a result of less frequent catheter changes, petitioners Lannom, Garcia, Carpenter and Cox have suffered urinary tract infections, urine retention, great pain, potential kidney damage and renal failure, and leakage. Petitioners lack the financial resources to pay for more frequent changes. Medicare Part A also covered blood tests for petitioner Hogue, an unstable diabetic, until Blue Cross denied coverage. Subsequently, Ms. Hogue qualified for Medicaid reimbursement for her blood tests. The loss of benefits without pre-termination hearings substantially affects petitioners as one explains:

I feel that my life is being threatened by my inability to obtain the care that I need, which is due to the arbitrary action of the Federal Medicare Intermediary. I cannot afford to directly pay a private nurse to come to my home to change my catheter as frequently as needed. I feel abandoned and desperate, and abused by the Medicare system. I have never even had any type of hearing to allow me and my physician to prove that I need the care that I am being denied now under Medicare.

Affidavit of James Lannom entered March 13, 1986. After losing Medicare benefits, petitioners asked Blue Cross to reconsider the disallowances; as of July 2, 1986, Blue Cross had not issued final orders.

II. Standing

Defendants challenge petitioners' standing. Standing is a threshold requirement which empowers a federal court to adjudicate a dispute. U.S. Const., art. III, § 2. To establish standing, a plaintiff "must allege personal injury fairly traceable to the defendants' allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984); Oklahoma Hospital Ass'n v. Oklahoma Publishing Co., 748 F.2d 1421, 1424 (10th Cir.1984). For purposes of a motion to dismiss for want of standing, the material allegations to the complaint must be accepted as true and construed in favor of petitioners. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

Defendants assert that petitioner Hogue lacks standing because her injuries are only conjectural since Medicaid paid for her tests after Medicare stopped doing so. Id.; Allen, supra 468 U.S. at 751, 104 S.Ct. at 3324-25. To the contrary, I find that Ms. Hogue satisfies the constitutional requirements and prudential limitations for standing. The injury of which Ms. Hogue complains is not loss of daily blood tests; she has suffered the direct personal injury of losing Medicare reimbursement for daily blood tests without a pre-termination hearing. Individuals who qualify for Medicare because of age and the Social Security Taxes they have paid are entitled to payment for necessary medical services. 42 U.S.C. §§ 1395c, 1395d, 1395i. Ms. Hogue's injury can fairly be traced to the challenged action, which is defendants' depriving Ms. Hogue of her property interest in continued receipt of Medicare benefits without due process. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976); Geriatrics, Inc. v. Harris, 640 F.2d 262, 264 (10th Cir.1981); U.S. Const. amend. V. All defendants caused Ms. Hogue's deprivation since the Secretary sets the procedures for benefit determinations and appeals and Blue Cross acts on behalf of the Secretary. Martinez, supra at 1123-4; 42 U.S.C. § 1395h(a). A favorable decision would redress Ms. Hogue's injury: it would afford her a pre-termination hearing, during which time she would retain Medicare benefits. Oklahoma Hospital Ass'n, supra at 1424.

In addition, Ms. Hogue satisfies the prudential limitations of standing. "In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute." Allen, supra 468 U.S. at 750-51, 104 S.Ct. at 3324. The standing doctrine embraces judicially self-imposed limits including whether the party is within the zone of protected interests. The question in such cases is "whether the constitutional ... provision on which the claim rests properly can be understood as granting persons in plaintiff's position a right to judicial relief." Warth, supra, 422 U.S. at 500, 95 S.Ct. at 2205-06. Ms. Hogue's claim rests on the constitutional guarantee of due process before deprivation of a property interest. Medicare benefits are a protected property interest. O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 786-87, 100 S.Ct. 2467, 2475-76, 65 L.Ed.2d 506 (1980); Geriatrics, Inc., supra at 264. The availability of alternate means of paying for medical service in no way weakens Ms. Hogue's right to judicial relief for denial of due process for deprivation of a property interest.

I concur with defendants that the Gray Panthers Advocacy Committee (Committee) lacks sufficient personal stake in this litigation to have standing. An abstract interest in the government's observing the Constitution is insufficient injury in fact to establish standing. Valley Forge College v. Americans United, 454 U.S. 464, 482, 102 S.Ct. 752, 763, 70 L.Ed.2d 700 (1982). Only a personal injury which the Committee suffered "as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees" suffices for standing. Id. at 485, 102 S.Ct. at 765. The Committee seeks to "reform and improve various laws and institutions that affect the lives of the elderly." Complaint at ¶ 26; Schweiker v. Gray Panthers, 453 U.S. 34, 40, 101 S.Ct. 2633, 2638, 69 L.Ed.2d 460 (1981). The Committee, which consists of approximately 40 individuals who reside throughout the United States, includes two members who reside in New Mexico, one of whose spouse has received home health care. Declaration of Rosanne Bernardy entered June 27, 1986. Since none of the members complain of loss of home health care benefits without pre-termination hearings in New Mexico, the Committee has not suffered sufficient injury in fact to have standing. Gray Panthers, supra at 40, n. 8, 101 S.Ct. at 2638, n. 8; Warth, supra, 422 U.S. at 511, 95 S.Ct. at 2211; Sierra Club v. Morton, 405 U.S. 727, 735-40, 92 S.Ct. 1361, 1366-69, 31 L.Ed.2d 636 (1972).

Finally, defendants challenge the standing of all petitioners on grounds that non-parties are not entitled to enforce the Order through a motion for contempt. U.S. v. American Society of Composers, Authors and Publishers, 341 F.2d 1003, 1007-08 (2d Cir.1965) (ASCAP). Defendants' argument is not well taken. "When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party." Fed.R.Civ.P. 71; Dowell v. Bd. of Ed. of Okla. Schools, 795 F.2d 1516, 1519 (10th Cir.1986). The Order expressly applies to "all...