only to whether current income meets or exceeds current expenses and does not properly consider future medical expenses or to determine what are the beneficiaries' needs. Plaintiffs allege that such a restrictive interpretation frustrates the remedial purpose of both Medicare and Social Security.
Plaintiffs' motion fails. They have not shown that the Secretary is not complying with the regulation or the intent of the statute. Defendant has provided reasonable explanations for the waiver denials set forth in Plaintiff's exhibits. Some of the beneficiaries' expenses were indefinite and not certain to be incurred and some will be covered by Medicare at the time they are incurred. Moreover, the Secretary has submitted notices which sufficiently apprise the beneficiary of the reason for the denial of his waiver request. Plaintiffs' motion for further written guidelines as to interpretation of this regulation is DENIED.
Conflict of Interest Between Beneficiaries And Their Attorneys
Plaintiffs contend that notices used by contractors contain language suggesting that attorneys may be liable to Medicare for unpaid MSP claims. This claim is intertwined with Plaintiffs' claim regarding improper use of the term "lien" to describe Medicare's right of recovery.
Defendant maintains that pursuant to the MSP statute and regulations set forth at 42 C.F.R. § 411.24(g) HCFA has a right to seek recovery of third party payments from attorneys. Plaintiffs do not argue that the regulation is invalid or conflicts with the MSP statute.
The Court's ruling on the improper characterization of the MSP recovery claim as a lien addresses Plaintiffs concern on this issue. Plaintiffs' allegations that contractors use ambiguous and threatening language in communications with attorneys fails to show as a matter of law that Plaintiffs are entitled to relief. Plaintiffs' motion for summary judgment on Count V is DENIED and the Secretary's motion for summary judgment on this claim is GRANTED.
Defendant's motion for summary judgment that the MSP statute provides for full reimbursement of MSP claims is GRANTED. Plaintiffs' motion for summary judgment on this claim is DENIED.
Plaintiffs' motion for summary judgment that notice of MSP recovery claims must be provided directly to Medicare beneficiaries is GRANTED. Defendant's motion for summary judgment that notice to a beneficiary's personal injury attorney does not violate due process is DENIED.
Plaintiffs' motion for summary judgment that the current notices do not meet due process requirements is GRANTED. The Secretary shall develop uniform notices apprising beneficiaries of their right to seek waivers and appeal waiver denials. The Secretary shall instruct contractors to cease use of the term "lien" in describing Medicare's claim for MSP reimbursement.
Plaintiffs' motion that the process used to review and determine waiver requests violates the Medicare statute is GRANTED IN PART. Defendant's motion that the Secretary has established standards and that such standards are reasonable is GRANTED IN PART. The Secretary shall develop and issue written guidelines to use in reviewing whether waiver should be granted under equity and good conscience. These guidelines shall incorporate broad concepts of fairness and shall not limit waivers to the three factual situations listed in 20 C.F.R. § 404.509. See, Quinlivan v. Sullivan, 916 F.2d 524 (9th Cir. 1990).
Defendant's motion for summary judgment that HCFA's procedure for reviewing waiver requests based on whether recovery would defeat the purpose of the Act or impose an economic hardship on a beneficiary does not conflict with the statute is GRANTED. The Secretary's determinations comply with statutory provisions.
Plaintiffs' motion that MSP notices create a conflict between beneficiaries and their personal injury attorneys is DENIED. The Secretary's motion for summary judgment on this claim is GRANTED.
IT IS SO ORDERED.
DATED: September 24, 1993
HONORABLE JAMES WARE
United States District Judge