HEARING - U.S. Senate Special Committee on Aging

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10,056 New Developments
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administrative process Therefore, this court
finds that the plaintiffs claim is substantially
collateral to a claim for benefits.
B. Futility of Proceeding Administratively
The court also finds that it would be futile for
the plaintiffs to pursue their claims in the
administrative forum. As in City of New York:
we discern no legitimate interest to be
advanced by requiring plaintiffs to travel
through the administrative maze as a prerequisite
of a judicial hearing. This is not a case
like ... Heckler v. Ringer, supra, where the
claim asserted could benefit from further factual
development or from the agency's 'experience
and expertise . As in Eldridge it is
not realistic to "expect that the Secretary
would consider substantial changes in the current
administrative review system at the
behest of a single aid recipient ... in an
adjudicatory context" 742 F.2d at 737
(citations omitted).
The Secretary contends that exhaustion of
administrative remedies would not be futile. She
supports this contention by noting that subsequent
to the filing of this action, three of the
named plaintiffs (Anselmo, Tann, and Gamble)
received awards of benefits from administrative
law judges, and thus, "the remaining plaintiffs
and the unnamed class members '[stand] the
chance of prevailing in administrative
appeals.' Defendant's Memorandum in Support
of Objections to the Magistrate's Recommended
Ruling at 23, citing Ringer, 104 S.Ct. at
2023, 2028. However, the plaintiffs' claim in
this action does not concern benefits, but instead
concerns what has already been described as
essentially a procedural irregularity. The fact
that some members of the original class have
been awarded benefits is not evidence of any
probability that the plaintiffs may be able to
compel the Secretary to invalidate Bulletin No.
175 on the basis of violation of the Freedom of
Information Act.
C. Irreparable Injury
To demonstrate irreparable injury, the plaintiffs
must makf a colorable showing that the
ordeal of proceeding through the administrative
process would cause them injury for which retroactive
benefits would not fully compensate. City
of New York, 742 F.2d at 736. The Magistrate
found that the plaintiffs had demonstrated
irreparable injury. The court agrees with the
Magistrate's reasoning:
[These] Medicare recipients are old and
infirm by definition. The care that is at issue
in this case is "a relatively intense, multidisciplinary
rehabilitative program" designed to
upgrade the patients' ability to function as
independently as possible. The delay attendant
to the administrative process, given the
age and infirmity of Medicare patients,
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imposes severe hardship on the claimants.
Lack of rehabilitative care may lead to irreversible
loss of function and render the review
process meaningless. Second Recommended
Ruling at 10.
The Secretary points out that the Magistrate's
position appears to be that some of the
plaintiffs will suffer irreparable injury because
they will not undertake to pay for the treatment
themselves. The Secretary then takes the position
that the inability to pay for treatment is an
impermissible consideration, citing Ringer. See
Defendant's Memorandum in Support of Objections
to the Magistrate's Recommended Ruling
at 20-22. The Ringer Court denied standing to a
plaintiff who claimed that he did not go through
with treatment because of his inability to pay.
However, the plaintiff in Ringer was denied
standing not because severe financial hardship
cannot be a ground for finding an irreparable
injury, but because he did not initially present
his claim to the Secretary, and thus failed to
meet the nonwaivable element of standing
under section 405(g). Indeed, the Court in
Eldridge premised its finding of irreparable
injury on the claimant's "physical condition and
dependency upon the disability benefits."
Eldridge, 424 U.S. at 331.
In contrast to the plaintiff in Ringer, plaintiffs
here have incurred liability for the cost of
treatment, and have presented their claims to
the Secretary, thus satisfying the nonwaivable
element of the standing test. Because these
plaintiffs are in need of a course of rehabilitative
treatment over a period of time, it is likely
that they will exhaust their personal resources
while the administrative process grinds on.
Plaintiffs' inability to continue treatment would
result in severe and irreparable injury to them.
Because plaintiffs here have met the nonwaivable
standing requirement by presenting their
claims to the Secretary, the court finds that
Ringer is not controlling on the irreparable
injury issue and that Eldridge permits a finding
that plaintiffs' inability to pay for continued
treatment constitutes irreparable injury sufficient
to support waiver of the exhaustion
requirement.
IV. Motion for a More Specific Order
The plaintiffs have moved for an order specifying
steps the Secretary must take to impIement
the Magistrate's and this court's finding
that Bulletin No. 175 is invalid. The Magistrate
has recommended the following order:
1. That the defendant notify all HCFA
regional offices, all HCFA Region I
intermediaries and all HCFA Region I hospitals
that Bulletin No. 175 has been declared
invalid by the United States District Court
and that it is no longer in effect.
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