Court Says HHS Secretary Thompson Acted in Bad Faith

MARCH 8, 2004 VOLUME 11, NUMBER 36

In June 2001, four national advocacy organizations and an individual plaintiff sued Secretary of the U.S. Department of Health and Human Services (HHS), Tommy Thompson. The lawsuit sought the court’s help to force Secretary Thompson to follow the law’s requirement that comparative written information about what participating Medicare+Choice Organizations (MCOs) offer be mailed to individual Medicare beneficiaries.

In August 2001, a preliminary injunction issued to compel the Secretary to comply with the law regarding the information mailed to Medicare beneficiaries. In 2002, the Secretary was enjoined permanently from failing to mail the information as required at Section 1395w-24(a)(1) of Title 42 of the United States Code by the U. S. District Court for the District of Columbia.Gray Panthers Project Fund,, v. Tommy G. Thompson, 273. F.Supp.2nd 32(D.D.C.2002).

The plaintiffs to the action filed a motion to secure an award of attorney’s fees against Secretary Thompson on the basis that the Secretary had acted in bad faith in refusing to follow the dictates of the law. On February 23, 2004, the District of Columbia Circuit Court again ruled against Secretary Thompson and awarded the plaintiffs attorneys fees that amount to approximately $173,000.

The Center for Medicare Advocacy represented the plaintiffs against the Secretary to compel him to follow the statutory directive that Medicare beneficiaries, many of whom are infirm, receive the annual description of MCO plan comparisons. Secretary Thompson had argued that the plan comparisons were being left out due to the prohibitive cost of mailing this information. In issuing the preliminary injunction against Secretary Thompson, Judge Henry Kennedy, for the court, wrote that “it was astounded that the Secretary has the audacity to argue that compliance with the statutory mailing requirement is too expensive while simultaneously electing to spend $35 million on advertisements.”

Judge Kennedy summed up his opinion on the permanent injunction by saying “On the whole, the defendant [Secretary Thompson] has simply failed to provide the court with adequate assurances that he intends to cooperate with the applicable provisions in the long run…Agencies may not chose to follow some laws while ignoring others…”

It was undoubtedly this perception that Secretary Thompson wantonly failed to follow what the legislature directed that earned the plaintiff’s their attorneys fees. Attorney’s fees are not awarded routinely.

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