The Ctr. for Medicare Advocacy Inc. v. U.S. Dep't of Health
| Decision Date | 26 May 2011 |
| Docket Number | No. 3:10cv645 (MRK),3:10cv645 (MRK) |
| Court | U.S. District Court — District of Connecticut |
| Parties | THE CENTER FOR MEDICARE ADVOCACY, INC., Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant. |
Plaintiff, the Center for Medicare Advocacy, Inc., filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to obtain records related to the so-called "improvement standard" that is allegedly used by Defendant Department of Health and Human Services ("HHS"), and by insurers with which HHS contracts, to deny or terminate Medicare coverage. Pending before the Court are Defendant's Motion for Summary Judgment [doc. # 24] and Plaintiff's Cross-Motion for Summary Judgment [doc. # 32]. On May 17, 2011, the Court heard oral argument on the parties' cross-motions. For the reasons that follow, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Cross-Motion for Summary Judgment.
The relevant facts in this case are undisputed. The Center for Medicare Advocacy ("the Center") is a non-profit advocacy group that is currently litigating a case in the District of Vermont, Jimmo v. Sebelius, No. 5:11cv16-cr (filed Jan. 18, 2011), regarding the legality of the so-called "improvement standard" for determining eligibility for Medicare coverage. Accordingto the Center's own literature, the improvement standard requires Medicare beneficiaries to show that treatments will improve their medical conditions - as opposed to simply maintaining them -in order to qualify for coverage. Also according to the Center's own literature, the improvement standard has the effect of denying Medicare coverage to people with chronic illnesses.
This case revolves around the Center's attempts to obtain documentation about the so-called improvement standard through FOIA requests. The Center sent the FOIA request at issue in this case to the Centers for Medicare and Medicaid Services ("CMS") - the agency within HHS that administers Medicare - on November 17, 2009. The Center requested documents pertaining to the training that CMS provides to its employees regarding the improvement standard; the training that CMS contractors under Medicare Parts A and B provide to their employees regarding the improvement standard; and the training that Medicare Advantage Plans which contract with CMS under Medicare's Part C provide to their employees regarding the improvement standard.
Medicare benefits are divided into four "parts" under the governing statute - Part A, see 42 U.S.C. §§ 1395c to 1395i-5; Part B, see id. §§ 1395j to 1395w-4; Part C, see id. §§ 1395w-21 to 1395w-29; and Part D, see id. §§ 1395w-101 to 1395w-152. The Eleventh Circuit recently summarized the distinctions among the four parts:
Part A provides hospital, skilled nursing, home health, and hospice care benefits. Part B provides physician and other outpatient services. Part D provides outpatient prescription drug benefits. The traditional Medicare structure allows beneficiaries access to Parts A, B, and D as separate benefits. Part C provides beneficiaries with an option to instead obtain the benefits available under Parts A and B as well as some additional benefits through a health insurance plan, known as a "Medicare Advantage Plan," administered by a private company.
Dial v. Healthspring of Ala., Inc., 541 F.3d 1044, 1046 (11th Cir. 2008) (citing Matthews v. Leavitt, 452 F.3d 145, 147 n.1 (2d Cir. 2006)). CMS uses contractors to process and payMedicare Part A and Part B claims on its behalf. See Def.'s Supplemental Local R. 56(a)1 Statement [doc. # 38-1] \ 30; 42 U.S.C. §§ 1395h, 1395u. The insurers with which CMS contracts under Medicare Part C provide qualified individuals with almost all of the benefits that would be available under Parts A and B "in exchange for monthly payments . . . from the government." Matthews, 452 F.3d at 147 n.1 (citations omitted); see 42 U.S.C. § 1395w-23.
During late February 2010 and again in late May 2010, the Center for Medicare ("CM") -which is the successor to CMS following a reorganization of certain components of HHS -provided the HHS FOIA Group with records responsive to the Center's FOIA request. All responsive records in the program area, totaling 140 pages, were fully released to the Center. CM also informed the FOIA Group that it had forwarded the requests to two other HHS components. Those components ultimately informed the FOIA Group that they did not possess any responsive records. After the Center's attorney voiced concerns that the volume of documents provided was not commensurate with the historical importance of the subject matter of the request, the CMS FOIA office voluntarily initiated an additional supplemental search, requesting that CMS's Medicare Administrative Contractors and legacy contractors, which pay both Part A and Part B Medicare claims, search for responsive records. As a result of that request, five of those contractors provided records, many of which were excerpts from publicly available CMS manuals and other known resources. Those records were released to the Center in two responses in October and November 2010, totaling 1,892 pages of hard copy records and a CD containing 71 electronic files. Other contractors responded stating that they did not possess responsive records, or that they relied on CMS's publicly available manuals and other materials. CMS's supplemental search was directed only to, and limited to the records of, contractors for MedicareParts A and B. It did not extend to the records of Medicare Part C contractors - that is, the Medicare Advantage Plans.
Since the parties agree that the materials submitted to the Court "show[] that there is no genuine issue as to any material fact," one of the cross-movants must be entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In this case, the legal question is whether CMS's search of its records in response to the Center's FOIA request was adequate. The Center argues that CMS's search of its records in response to the Center's request for records of training provided to employees of the Medicare Advantage Plans - the Medicare Part C contractors - was inadequate because CMS did not seek out records held by the Medicare Part C contractors themselves. HHS argues that "the legal authority governing [HHS's] FOIA response delineates Part A and Part B contractors, but not Medicare Advantage/Part C plans, as part of HHS for FOIA purposes." Mem. in Opp'n to Pl.'s Cross-Mot. for Summary J. [doc. # 37] at 4. Therefore, HHS argues, CMS was not required to seek out the Part C contractors' records in response to the Center's FOIA request. The Court agrees with HHS that FOIA does not obligate the agency to seek out the records of sponsors of Medicare Advantage Plans under Medicare Part C.
Under FOIA, an agency is required only to conduct a search of "agency records." FOIA defines "agency" as an "authority of the Government of the United States," 5 U.S.C. § 551(1), including "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government . . ., or any independent regulatory agency." Id. § 552(f)(1). Information constitutes a "record" subject to disclosure under FOIA only if it is "maintained by an agency in [some] format, including anelectronic format," or "maintained for an agency by an entity under Government contract, for the purposes of records management." Id. § 552(f)(2). The Supreme Court has held that "[f]or requested materials to qualify as 'agency records,' two requirements must be satisfied: (i) an agency must either create or obtain the requested materials, and (ii) the agency must be in control of the requested materials at the time the FOIA request is made." Grand Cent. P'ship., Inc. v. Cuomo, 166 F.3d 473, 479 (2d Cir. 1999) (quoting United States DOJ v. Tax Analysts, 492 U.S. 136, 145 (1989)) (quotation marks omitted). HHS's own rule defining "agency" for FOIA purposes states that "[a] private organization is not an agency even if it is performing work under contract with the Government." 45 C.F.R. § 5.5. The definition specifies that "contractor records are not subject to FOIA unless they are in the possession or under the control of HHS or its agents." Id. Since the Supreme Court has stated that materials only qualify as "agency records" if they both were obtained or created by the agency and are under the control of the agency, the Court interprets this last provision of HHS's rule to emphasize that even when contractor records were originally created or obtained by HHS, those records are not "agency records" for FOIA purposes unless they remain in the possession or under the control of HHS.
According to a 1987 regulation, Medicare Part A and Medicare Part B contractors are treated as part of HHS for FOIA purposes. See 45 C.F.R. § 5.5. Specifically, HHS is defined as "includ[ing] Medicare health insurance carriers and intermediaries to the extent they are performing functions under agreements entered into under sections 1816 and 1842 of the Social Security Act, 42 U.S.C. 1395h, 1395u." Those two sections provide for the administration of Medicare Parts A and B, respectively. See 42 U.S.C. §§ 1395h, 1395u. There is no regulation that defines Medicare Part C contractors as part of HHS for FOIA purposes.
At oral argument, the Center's counsel confirmed that the Center wants to obtain the training materials with regard to the improvement standard used by each private insurer under Medicare Part C.
It is clear that the Medicare Advantage Plan records sought by the Center were not created or obtained by HHS and are not in the control of HHS. Under Supreme Court precedent, an agency is "in control" of the records "if the materials have come into the agency's possession in the legitimate conduct of its official duties." Tax Analysts, 492 U.S. at 145. Moreover, with regard to the...
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