Litigation - Weichardt v. Thompson

Issue: Whether CMS’ promulgation of final rules not requiring timely advance written notice to hospitalized Medicare beneficiaries who are being discharged violates the Administrative Procedure Act and the Due Process Clause.

Relief sought: Nationwide class is alleged. Declaratory and injunctive relief against HHS prohibiting the continued implementation of the regulations at issue (42 C.F.R. §§ 422.620 and 489.27), and requiring that hospitalized Medicare beneficiaries be given timely advance written notice before they are discharged.

Status: The complaint was filed on December 5, 2003. Plaintiffs have amended the complaint to add an additional plaintiff and to add a claim under the APA that the new regulations are arbitrary and capricious. Plaintiffs served written discovery on the Secretary in February 2004. On July 9, 2004, the district court denied the government's motion for summary judgment and plaintiffs' motion for class certification, both without prejudice to renew at an appropriate later time after discovery is completed. He agreed that plaintiffs were entitled to discovery, thus granting their Rule 56(f) request, but temporarily stayed discovery until the matter could be discussed at the case management conference scheduled for August 17, 2004.

After the case management conference, plaintiffs' interrogatories and requests for admission were answered in the fall of 2004. Follow-up depositions of relevant CMS employees took place in December 2004.

After lengthy negotiations, the parties entered into a settlement agreement by which the Secretary will promulgate a new rule. Although the contours of the new rule cannot be guaranteed because it will be the subject of APA notice-and-comment rulemaking, the expectation is that the new rule will require a more effective advance written notification before hospitalized Medicare beneficiaries are discharged. The proposed new rule was published on April 5, 2006. 71 Fed.Reg. 17052. Numerous comments were submitted, including many from the hospital industry objecting to the proposed new notice system.

The final regulations were published on November 26, 2006, with an effective date of July 1, 2007. 71 F.R. 68708. CMS altered the proposed regulations considerably, changing the system to allow hospitals to give out the Important Message from Medicare at some point before the patient's departure from the hospital and to treat that as the notice of patient rights. Plaintiffs have contacted defendant's counsel about this change from the proposed regulations, but no discussions have been held yet. Since the regulations were issued within the time frame established by the settlement, this case will automatically be dismissed 180 days from the regulations' effective date.