HEARING - U.S. Senate Special Committee on Aging

128
462 6-85 New Developments
10,055
III. Motion to Alter or Amend ClAss
Certification
The United States Supreme Court recently
determined in the case of Heckler v. Ringer, -
U.S. -, 104 S.Ct. 2013 (1984), that courts have
jurisdiction over claims arising under the Medicare
Act only pursuant to 42 U.S.C. §405(g). 4
For a court to have jurisdiction under section
405(g), the plaintiff must present a claim to the
Secretary prior to bringing an action in federal
court. Id. at 2025. Therefore, the Magistrate
determined that in this action the court has
jurisdiction only over those members of the class
who have presented claims to the Secretary
prior to pursuing their claims in court. Second
Recommended Ruling at 11. The Magistrate
therefore recommended that the class be redefined
as follows:
All persons residing in Health Care Financing
Administration Region I (New England),
who, have presented their claims to the Secretary
for Medicare Part A benefits for inpatient
hospital rehabilitation, based upon
physician certification of their need for and
their receipt of a relatively intense multidisciplinary
rehabilitation program with a coordinated
team approach to upgrade their
ability to function as independently as possible
and who have not been awarded such
benefits. Second Recommended Ruling at
11-12.
Because the Magistrate's proposed amendment
to the definition of the class insures that
all class members will satisfy the criteria for
standing enunciated in Ringer, this court hereby
approves the redefinition of the class. Further,
for the reasons stated in the Magistrate's Second
Recommended Ruling, the court also approves
the Magistrate's determination that three of the
named plaintiffs. Lucy Anselmo, Theodore
Tann, and Margaret Gamble, are no longer
members of the class and thus cannot serve as
named plaintiffs.
The Secretary has also argued that none of
the named plaintiffs may pursue their claims in
federal coupt because they have not exhausted
their administrative remedies. The court finds
this argument unpersuasive. 42 U.S.C. §405(g)
requires exhaustion of administrative remedies
unless the Secretary waives the exhaustion
requirement, or the claimant's interest in having
his case resolved is so great that waiver of
(Footnote Continued)
Mlrmurandum in Support of Objcrtions to the Magistrate's
Recundl
Rremmrnded Ruling at 7- O.
These costcntions e.nerlook the fact that Bulletin No. 175
prohibits ccserage for inpatient huspital rehabilitatie care
ces-n s-ec such -are has been determined to be medically
necessary or where the patients needs could tor be met in a
skilled nursing facility. unless the patient's condition also
Medicare and Medicaid Guide
the exhaustion requirement is appropriate. See
Weinberger v. Salfi, 422 U.S. 749, 766-67
(1975); Mathews v. Eldridge, 424 U.S. 319, 330
(1976). The factors to be considered in determining
whether a claimant's interest in having a
case resolved is so great that waiver of the
exhaustion requirement is appropriate are: (I)
whether the plaintiff's legal claims are substantially
collateral to the demand for benefits; (2)
whether exhaustion would be futile; and (3)
whether the harm suffered pending exhaustion
would be irreparable. City of New York v. Heckler,
742 F.2d 729, 736 (2d Cir. 1984) (Newman,
J.). See Eidridge, 424 U.S. at 330-31; Ringer, -
U.S.-, 104 S.Ct. at 2020-24. The plaintiffs do
not contest the Secretary's claim that the plaintiffs
have not exhausted their administrative
remedies and that the Secretary has not waived
the exhaustion requirement. Rather, plaintiffs
contend that their interest in having their
claims resolved is so great that a judicial waiver
of the exhaustion requirement is appropriate.
This court agrees with the Magistrate that, in
this instance, judicial waiver is appropriate.
A. Collateral to Benefits
In City of New York v. Heckler, 742 F.2d 729
(2d Cir. 1984), the plaintiffs, a class of persons
with severe mental illness estimated to include
more than 50,000 New York residents, challenged
an unpublished, informally-adopted
administrative procedure utilized by the Social
Security Administration that effectively
imposed upon the plaintiffs a presumption of
ineligibility for original and continuing disability
benefits. The court found that the plaintiffs'
legal claims were "substantially collateral" to a
claim for benefits because what the class complained
of was "fundamentally a procedural
irregularity," and because "[tlhe District Court
was not asked to and did not rule on the merits
of any of the underlying claims." City of New
York, 742 F.2d at 737.
As in City of New York, the plaintiffs in this
case complain of an unpublished, informallyadopted
administrative procedure that is "fundamentally
a procedural irregularity." Similarly,
as was true in City of New York and not
true in Ringer, this court has not been asked to
rule on the merits of any of the underlying
claims. Compare City of New York, 742 F.2d at
737, with Ringer, 104 S.Ct. at 2021. If successful
in their challenge, plaintiffs will still have to
pursue their individual claims through the
outer-is n-cessialtes inpatient hospital care. This languagce
clearly mstablishes criteria in addition to thosn et
forth in the Art, thereby triggering the publication requiremcnts
of the FOtA.
' See Ringer, 1o0s SCt. at 2021-23 btarring federal question
and mandamus jurisdiction in claims arising under
the Medicare Act).
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