HEARING - U.S. Senate Special Committee on Aging

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10,054 New Developments
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Act and in the HCFA Part A Intermediary
Manual, Section 3101.1!. The criteria for coverage
under §3101.11A provides that a
patient is deemed to require a hospital level
of care if he requires a relatively intense rehabilitative
program, consisting of a multidisciplinary
coordinated team approach to
upgrade the ability to function as independently
as possible, which is reasonable and
necessary, Bulletin No. 175 added the
requirement that the patient's condition must
"also otherwise necessitate that the services
be rendered on an inpatient hospital basis in
order for coverage to be possihie under the
Medicare program." (Emphasis added).
The original complaint challenging the Bulletin
was filed on February 13, 1980, as a
class action in which the plaintiffs sought
declaratory and injunctive relief. The defendant
Secretary of Health and Human Services
filed a Motion to Dismiss, in which she raised
the issues of jurisdiction and failure to.
exhaust administrative remedies. The motion
was denied on November 7, 1980. The plain.
tiffs' Motion for Class Certification was
granted on March 25, 1982, and the class was
defined to include-
.all persons residing in Health Care Financing
Administration Region I, (New England),
who, pursuant to the defendant's unlawful
policy and practice, have been or will be
denied Medicare Part A benefits for inpatient
hospital rehabilitative services."
As noted previously, both parties filed
motions for summary judgment and the plaintiffs'
motion was granted. In granting the
plaintiffs' motion, we found Bulletin No. 175
to be invalid on the grounds that the defendant
Secretary failed to publish agency policy
and a proposed rule imposing additional,
more restrictive coverage criteria, in violation
of the Freedom of Information Act, S U.S.C.
§ 552, and the Administrative Procedures
Act, 5 U.S.C. § 553, respectively. Judgment
was entered accordingly on January 5, 1984.
On January 31, 14, the plaintiffs filed a
Motion for a MWrt Specific Order "[in order
to assure that the court's judgment is implemented
and that their rights are properly
safeguarded." Memorandum in Support of
Plaintiffs' Motion for a More Specific Order,
p. 2. On February 29, 1984, the Secretary
filed her opposition to the plaintiffs' motion
and also filed a Request for Reconsideration
in which, in essence, she reargued jurisdictional
issues and the publication issue which
3
The Secretary argues that the Magistrate erred in tinding
that Bulletin No. 275 establishes criteria for Medicare
coverage of inpatient hospitul rehabilitative care in addition
to the criteria set forth in the Medicare Act. The Secretary
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had been found for the plaintiffs. In June, the
defendant Secretary filed an additional
motion, this time a Motion to Alter or Amend
Class Certification. The impetus for this
motion was the supreme court s decision in
Heckler v. Ringer, [ - U.S. _J 104 S.Ct.
2013 (1984), which addresses jurisdictional
issues pertinent to this case. All matters
raised by the above motions have been fully
briefed by the parties. Id. (footnotes urnitted).
I1. Motion for Reconsideration
This court remains convinced that HCFA
Region I Bulletin No. 175 is invalid for lack of
publication in the Federal Register as required
by Section 552(aXIXD) of the Freedom of Information
Act, 5 U.S.C. § 552(aXIXD) (1982). The
Freedom of Information Act (FOIA) provides, in
part, that
(a) Each agency shall make available to the
public information as follows:
(1) Each agency shall separately state and
currently publish in the Federal Register for
the guidance of the public-
(D) substantive rules of general applicability
adopted as authorized by law, and statements
of general policy or interpretations of
general applicability formulated and adopted
by the agency; ....
A "statement[] of general policy" or an "interpretation[]
of general applicability" does not
come within the purview of Section 552(aXiXD)
if only a clarification or explanation of existing
laws or regulations is expressed, or if no direct or
significant impact upon the substantive rights
of any segment of the public results. Anderson v.
Butz, S50 F.2d 459, 463 (9th Cir. 1977) (citing
Lewis v. Weinberger, 415 F. Supp. 652, 659
(D.N.M. 1976)). See United States v. Hayes,
325 F.2d 307, 309 (4th Cir. 1963). As set forth
in the Magistrate's Recommended Ruling on
Cross Motions for Summary Judgment,
appendixed hereto, Bulletin No. 175 does not
merely clarify or explain existing law but establishes
additional and more burdensome criteria
for Medicare coverage of inpatient hospital
rehahilitative services, which have had a direct
and significant impact on those seeking health
care benefits in Region I (New England). The
defendant in her motion for reconsideration
merely repeats arguments that have previously
been considered and rejected by this court and
the Magistrate. 3 Accordingly, the defendant's
Motion for Reconsideration is denied.
points to sections of the Act which bar coverage it the
patient's needs could be met in a skilled nursing facility, or
if the inpatient care is not medically necessary. Defendant's
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