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Court Says HHS Secretary Thompson Acted in Bad Faith

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.