United States District Court, D. Connecticut
RODERICK L. BREMBY, COMMISSIONER, CONNECTICUT DEPARTMENT OF SOCIAL SERVICES, Plaintiff,
THOMAS E. PRICE, M.D.,  SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
RULING ON MOTION TO DISMISS
Dominic J. Squatrito United States District Judge
plaintiff, the Commissioner of the Connecticut Department of
Social Services (“Commissioner”), initiated this
action seeking review of a final decision of the defendant
Secretary of the Department of Health and Human Services
(“Secretary”) pursuant to the Medicare Act, 42
U.S.C. § 405(g). Now pending before the Court is the
Secretary's motion to dismiss for lack of subject matter
jurisdiction. For the reasons stated below, the
Secretary's motion to dismiss is granted.
final decision that is the subject of this action denied the
Commissioner's request for Medicare coverage and payment
for services provided to the Commissioner's subrogor, Ms.
R, who is a Medicare beneficiary. In his Complaint, the
Commissioner states that he is “contest[ing] the
[Secretary's] decision that the administration of
intramuscular Vitamin B-12 . . . injections did not qualify
Ms. R for coverage under the Medicare home health
benefit.” (Doc. # 1, at 1, ¶ 3).
defendant Secretary subsequently filed a motion requesting
that the Court remand the matter for further administrative
proceedings pursuant to the sixth sentence of 42 U.S.C.
§ 405(g), which provides in part that: “The court
may, on motion of the [Secretary] made for good cause shown
before the [Secretary] files the [Secretary's] answer,
remand the case to the [Secretary] for further action by the
[Secretary] . . . .” The Court found that the Secretary
made a showing of good faith sufficient to satisfy the
requirements of the statute based on his representation that
he “believes that the MAC [Medicare Appeals Council]
should have an opportunity to address Plaintiff's new
arguments and consider whether it applied the appropriate
standard when assessing Plaintiff's claim.” (Doc. #
15-1, at 10). Accordingly, the Court granted the
Secretary's motion and remanded the case for further
status report filed on August 15, 2016, the Secretary stated
that “[u]pon remand, the MAC reopened and revised their
decision, granting Plaintiff's subrogor, Ms. R., coverage
for the service requested in Plaintiff's
Complaint.” (Doc. # 27, at 2). The defendant went on to
contend that because the revised MAC decision provided the
plaintiff all the relief he sought, this action was now moot.
The plaintiff Commissioner filed exceptions to the
Secretary's status report, arguing that “[a]s it
reads, the amended decision affords no guidance as to whether
future intramuscular B-12 injections claims appealed by
Plaintiff on behalf of its subrogors will be covered or
denied, ” and disagreed that this action is moot. (Doc.
# 28, at 3). The Court then directed the defendant to file a
motion to dismiss based on his contention that this case is
Secretary filed his motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1), which authorizes a motion asserting
the defense of lack of subject matter jurisdiction. The
Secretary argues that the Court no longer has subject matter
jurisdiction over this matter because the Commissioner's
claim has become moot. “[I]n the usual case, if the
basis for the claim has been rectified or if the plaintiff is
no longer subject to the challenged conduct, the claim is
moot.” Amador v. Andrews, 655 F.3d 89, 99-100
(2d Cir. 2011). Mootness “is a condition that deprives
the court of subject matter jurisdiction.” Fox v.
Board of Trustees of the State University of New York,
42 F.3d 135, 140 (2d Cir. 1994). “A moot action . . .
must be dismissed, even if the case was live at the outset
but later events rendered it moot . . . .” Tann v.
Bennett, 807 F.3d 51, 52 (2d Cir. 2015) (internal
quotation marks omitted).
Secretary's motion is based on his contention that this
case became moot when “the MAC issued a revised
decision granting Ms. R coverage for the skilled nursing
visits that involved the administration of intramuscular
Vitamin B-12 injections.” (Doc. # 31-1, at 2). In
opposing the Secretary's motion, the Commissioner argues
that even though he has now received payment for the services
provided to Ms. R, “there is no indication that the
Secretary has taken any action to correct the problem that
caused the adverse original MAC decision.” (Doc. # 32,
action concerns services, and payment for those services,
provided to Ms. R, who is the plaintiff Commissioner's
subrogor. In his Complaint, the Commissioner claims that the
Secretary's denial of Medicare coverage for intramuscular
Vitamin B-12 injections received by Ms. R was not supported
by substantial evidence, was based on errors of law, violated
the Medicare statute, regulations and policy manual, and
violated her Due Process Rights.
Revised MAC Decision
issued its revised decision (“Revised Decision”)
on June 13, 2016. As noted by the Commissioner, the Decision
erroneously states that “[t]he appellant [i.e., the
Commissioner] . . . obtained a voluntary remand from federal
district court . . . .” (Doc. # 27-1, at 7). While that
statement clearly is incorrect, this error does not affect
the mootness issue.
addition to Vitamin B-12 injections, the Revised Decision
addresses other services for which Medicare coverage was
denied in the initial MAC decision and for which Medicare
coverage continued to be denied in the Revised Decision.
These services include observation and assessment of various
conditions and instruction on dietary management.
regard to B-12 injections, and the Commissioner's
contention regarding Medicare coverage of those injection,