Opinion
CV 02-448 TUC DCB.
March 21, 2006
ORDER
On November 17, 2005, Plaintiff filed a Motion to Enforce the Judgment entered in his favor on January 30, 2004, which determined that Medicare had improperly refused to retroactively apply coverage criteria to pay for the treatment for angina, Enhanced External Counterpulsation (EECP), which Plaintiff received in late 1997 and 1998. The Court held that he had been wrongfully denied coverage for the procedure. Following the January 30, 2004, ruling, Defendant filed a motion for clarification, which was resolved in favor of the Plaintiff, then Defendant filed an appeal with the Ninth Circuit, which it later voluntarily dismissed. The Defendant referred the matter back to the Social Security Administrative Law Judge (ALJ) for a coverage determination based on the correct legal standard as determined by the Court. The ALJ issued a favorable coverage determination, which became final on July 20, 2005. As of November 17, 2005, the Plaintiff still had not secured reimbursement of $7,500.00 that the Court had held on January 30, 2004 was improperly denied him.
Attempts to secure payment having failed, the Plaintiff filed the motion for enforcement for reimbursement of $7,500 for the EECP treatment, plus interest from July 20, 2005, plus his attorney's fees for the time expended in bringing this enforcement action.
On December 2, 2005, this Court issued an Order for the Defendant to show cause why an order enforcing the Judgment and providing for interest and attorney fees should not issue. The Order to Show cause crossed in the mail with the Defendant's Opposition to the Plaintiff's Motion for Enforcement.
The Defendant, Michael O. Levitt, Secretary of Health and Human Services, argued that regulations implementing Medicare + Choice plans explicitly make the provider responsible for complying with any adverse decisions of an ALJ, such as the one rendered here in Plaintiff's favor because the healthcare provider is responsible for paying benefits, including the $7,500.00 owed in reimbursement to the Plaintiff. The Defendant contacted the Center for Health Dispute Resolution (CHDR), a private entity that contracts with the Department of Health and Human Services, to request compliance with the ALJ's decision. The Defendant asserts it, thereby, fully complied with the directives of the Court's January 30, 2004, Order.
The Court disagrees. After the ALJ concluded the treatment at issue met the criteria for Medicare coverage and ordered reimbursement for the Plaintiff on May 19, 2005, his decision became final on July 20, 2005. Instead of contacting Plaintiff's health plan directly regarding the ALJ's order for reimbursement, Defendant contacted CHDR. As of December 13, 2005, CHDR had sent three different letters to three different providers regarding reimbursing the Plaintiff the $7,500.00. Whereas the ALJ's decision informed the Plaintiff that he would be reimbursed within 60 days of the decision, each letter from the CHDR gave the provider 60 days from receipt of the letter to reimburse the Plaintiff. So, Plaintiff's entitlement date shifted in progression as follows: a CHDR letter sent on September 7, 2005, set reimbursement for November 6, 2005; a CHDR letter sent November 25, 2005, made reimbursement due January 24, 2006, and the November 30, 2005, CHDR letter made the reimbursement payment due January 29, 2006.
Ultimately, none of the entities contacted by CHDR paid the Plaintiff. Instead, Defendant secured the reimbursement payment on January 17, 2006, from a forth entity: Ovations, Inc., Unitedhealthcare. (Defendant's Status Report filed January 20, 2006.) Whether or not the Defendant was in a position to directly issue the reimbursement check to the Plaintiff is irrelevant. Defendant most certainly was in a position to ascertain the correct entity to contact, to contact the entity responsible for reimbursing the Plaintiff, request reimbursement be made to the Plaintiff, and continue to request payment until payment was made of the reimbursement amount owed the Plaintiff. This did not occur until after the Plaintiff filed the motion for enforcement.
Plaintiff and his attorney went to great lengths attempting to secure the payment due him before filing the motion. Initially, Plaintiff contacted the Social Security Office of Hearings and Appeals and the local Social Security office. Plaintiff also contacted the provider, Empire Medicare Services, the ALJ, and Congressman Kolbe's office. In October, 2005, Plaintiff contacted Defendant's attorney, the Assistant United States Attorney (the AUSA) in Tucson, and asked for assistance in navigating the administrative system to effect satisfaction of the Judgment. After some discussions, the AUSA told the Plaintiff that there was nothing the Defendant could do to secure payment for the Plaintiff. Subsequently, Plaintiff filed the Motion for Enforcement.
In addition to continuing to argue that it has satisfied the Judgment, the Defendant argues that the Government cannot be responsible for interest and attorneys fees related to the payment of an amount that a private corporation was responsible to pay, and did pay. The Court notes, however, that the private corporation did not pay the Plaintiff until after the Motion for Enforcement was filed and this Court issued the Order to Show Cause. Defendant's failure to route the Plaintiff's claim through its bureaucratic maze resulted in his incurring further expenses to file the enforcement motion to secure the reimbursement of the $7,500 that he expended in 1997 and 1998, which he was entitled to as of July 20, 2005. Plaintiff's entitlement did not include interest.
The Court grants the Plaintiff's request for an award of attorney fees related to the Motion for Enforcement, but not interest. The Court has discretion to award Plaintiff the expense of bringing the enforcement proceeding, including his attorney fees. Spain v. Mountanos, 690 F.2d 742, 747 (9th cir. 1982) (equitable remedies are available under Fed.R.Civ.P. 70); see also, Roadway Express Inc. v. Piper, 447 U.S. 752, 766 (1980) (discussing the inherent power of court to levy sanctions for civil contempt because without such power the courts could not administer justice). See Donavan v. Burlington Northern, Inc., 781 F.2d 680, 683-684 (9th Cir. 1986) (discussing court's discretion to award attorney fees for the expense of bringing a contempt action). The Plaintiff did not bring the administrative confusion surrounding the payment of the claim to Defendant's attention until October, 2005, and while Defendant asserted its lack of responsibility for the nonpayment, it nevertheless secured payment of Plaintiff's claim by January 17, 2006.
Accordingly,
IT IS ORDERED that the Motion to Enforce Judgment (document 65), is GRANTED IN PART as to this Court's issuance of the Show Cause Order on December 8, 2005, and as to an award of related attorney fees and DENIED IN PART as to interest.
IT IS FURTHER ORDERED that Plaintiff has ten days from the filing date of this Order to file a motion and supporting documentation requesting payment of his attorney fees related to the enforcement motion. Any objection by the Defendant shall be limited to the amount, not the merits of the award.