Alexander v. Azar

          MEMORANDUM OF DECISION

          MICHAEL P. SHEA, U.S.D.J.

         On March 27, 2019, I denied the Secretary's motion to dismiss for lack of standing, motion to decertify the class, and motion for summary judgment. (ECF No. 378.) Now pending before me are three matters related to that ruling: (1) the Secretary's “limited motion for clarification and reconsideration, ” (ECF No. 379); (2) the parties' supplemental briefing on the need to further subdivide the class, (ECF Nos. 384 and 385); and (3) four motions to seal documents filed in opposition to the motion for summary judgment (ECF No. 330, 337, 340, and 371). I assume familiarity with my prior ruling and address each matter in turn.

         I. MOTION FOR RECONSIDERATION AND CLARIFICATION

         In ruling on the Secretary's motions for summary judgment and class decertification, I explained that, given the age of the case and its tortuous procedural history, I would “not consider further argument at this point on the merits of class certification in general or on the issues addressed in the summary judgment ruling, and the parties are not authorized to file further briefs on these issues.” (ECF No. 378 at 43 n.14) I warned that “[t]he time for motion practice is over, ” and scheduled a status conference to choose a trial date. (Id. at 50.) Seven days later, the Secretary filed a motion for reconsideration and clarification. (ECF No. 379.) For the reasons explained below, the motion is DENIED.

         A. Motion for Reconsideration

         The Secretary first moves for reconsideration of my ruling on class decertification. The motion does not meet the strict standard for granting a motion for reconsideration, which requires that the movant “point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The Secretary asserts that I “overlooked the fact there is no evidence that every Medicare beneficiary who spent at least three days as an inpatient, during the relevant time period required or even was recommended for post-hospitalization SNF care.” Thus, he argues, the present class includes individuals who lack a cognizable injury for purposes of standing.^[1] As I have explained, however, “the lack of expedited administrative review can force individuals who need SNF care but cannot afford it to forego critical care.” (ECF No. 378 at 37 n. 11 (quoting Alexander v. Price, 275 F.Supp.3d 313, 323 (D. Conn. 2017).) The Second Circuit has recognized that a class may include members whose injury is “simply. . . the fear or anxiety of future harm.” Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006); see also Id. at 265 (“[T]hose members who completed a tax transaction but have not yet been audited still run the risk of being assessed a penalty under an exception to the statute of limitations.”). Further, “[t]he person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 573 n.7 (1992). The motion offers a different gloss on the same arguments that the Secretary already presented, and it cites only cases and data that I considered in my original ruling. The motion for reconsideration is therefore DENIED.

         1 do not intend to imply that the class definition is now set in stone. “[B]ecause the results of class proceedings are binding on absent class members, see Fed.R.Civ.P. 23(c)(3), the district court has the affirmative duty of monitoring its class decisions in light of the evidentiary development of the case.” Mazzei v. Money Store, 829 F.3d 260, 266 (2d Cir. 2016). The duty to “monitor, ” however, does not include an obligation to modify the class definition in real time in response to the parties' arguments. The Secretary has not presented evidence suggesting modifying the class definition now would meaningfully alter the scope of the trial.^[2] I will review the class definition in light of the evidence presented at trial and with the input of both parties.

         B. Motion for Clarification

         The Secretary next requests clarification of a portion of my ruling on summary judgment. Specifically, I held that the evidence in the record was “sufficient to allow a reasonable factfinder to conclude that the Two Midnight Rule, as implemented, meaningfully channels the discretion of doctors and hospitals in deciding whether to admit a beneficiary as an inpatient.” (ECF No. 378 at 14-15 (quotation marks omitted).) Thus, there is a material dispute of fact about whether the Plaintiffs have a protected property interest in being admitted as inpatients rather than treated as outpatients on observation status. The Secretary requests elaboration of (1) the criteria established by the Two Midnight Rule that give rise to a protected property interest; (2) the evidence in the record showing that CMS has established such criteria; and (3) the legal framework the Court applied to determine that those criteria establish a protected property interest. “Clarification of a prior order is within the issuing judge's discretion and appropriate to add certainty to an implicated party's efforts to comply with the order and provide fair warning as to what future conduct may be found contemptuous.” Genworth Fin. Wealth Mgmt., Inc. v. McMullan, No. 3:09-CV-1521 (JCH), 2012 WL 13024369, at *5 (D. Conn. May 10, 2012) (quotation marks omitted). Here, the Secretary does not seek clarification to comply with an order, but requests that the Court provide further explanation of an earlier ruling “so that [he] can make sure he prepares and presents the most appropriate evidence at trial, tailors his presentation to the Court's rulings, and presents evidence in the most efficient and helpful manner for the Court.” (ECF No. 379-1 at 7.)

         The Court's role on summary judgment is to determine whether the movant has shown “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A] at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”). Its role is not to provide the parties with a roadmap for the trial. I explained why I found that there existed a triable issue of fact about whether the Two Midnight Rule, as implemented, creates a protected property interest. (See ECF No. 378 at 15-20.) I also identified evidence that I found demonstrated the existence of genuine disputes of material fact. (Id. at 20-25.) I have twice denied summary judgment in this case and written lengthy opinions each time, which goes beyond the requirements of Rule 56. See Fed.R.Civ.P. 56 advisory committee's note to the 2010 amendment (“It is particularly important to state the reasons for granting summary judgment . . . The statement denying summary judgment need not address every available reason.”). I decline to expound upon my reasoning further. The motion for clarification is DENIED.

         II. SUPPLEMENTAL BRIEFING ON CLASS CERTIFICATION

         In ruling on the Secretary's motion to decertify the class, I adopted the following modified class definition:

All Medicare beneficiaries who, on or after January 1, 2009: (1) have received or will have received “observation services” as an outpatient during a hospitalization; (2) have received or will have received an initial determination or Medicare Outpatient Observation Notice (MOON) indicating that the observation services are not covered under Medicare Part A; and (3) either (a) were not enrolled in Part B coverage at the time of their hospitalization; or (b) stayed at the hospital for three or more consecutive days but were designated as inpatients for fewer than three days. Medicare beneficiaries who meet the requirements of the foregoing sentence but who pursued an administrative appeal and received a final decision of the Secretary before September 4, 2011, are excluded from this definition.

(ECF No. 378 at 41.) I noted, however, that it might be necessary to subdivide the class. The current class includes two arguably-distinct groups:

(1) Medicare beneficiaries hospitalized before October 2013 who assert a property interest based on the use of commercial screening tools; and (2) Medicare beneficiaries hospitalized after October 2013 who assert a property interest under the Two Midnight Rule.

(Id.) I therefore directed the parties to file supplemental briefs addressing whether I should (1) create formal subclasses pursuant to Fed.R.Civ.P. 23(c)(5) and appoint separate counsel for each; (2) subdivide the class only for purposes of case management under Fed.R.Civ.P. 23(d); or (3) allow the case to proceed to trial with a single class under the newly certified class definition. Having reviewed the parties' supplemental briefs, I now find that there is no “fundamental conflict” between ...