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Bremby v. Price

United States District Court, D. Connecticut

March 6, 2017



          Dominic J. Squatrito United States District Judge

         The 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.


         The 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).

         The 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 administrative action.

         In a 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 moot.


         The 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).

         The 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, at 7).

         This 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.

         The Revised MAC Decision

         The MAC 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.

         In 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.

         With regard to B-12 injections, and the Commissioner's contention regarding Medicare coverage of those injection, the ...

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