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Case: 1:10-cv-00101-RWS Doc.

#: 35-1 Filed: 04/06/11 Page: 1 of 4 PageID #: 508

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

PETER D. KINDER, et al., )


)
Plaintiffs )
)
v. ) Civil Action No. 1:10-cv-00101-RWS
)
TIMOTHY F. GEITHNER, et al. )
)
Defendants )
____________________________________)

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM


IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

In their memorandum responding to the motion to dismiss, plaintiffs

characterized Count VII of the Amended Complaint as raising claims by Medicare

Advantage enrollees “Geraldine and Robert Osborn and Dale Morris assert[ing]

that PPACA’s distinction between themselves, on the one hand, and any similarly

situated person living in one of the counties afforded preferential treatment under

PPACA . . . , on the other hand, impermissibly discriminates among American

citizens.” Pls’ Mot. To Dismiss Opp. at 13. The geographic distinction among

counties challenged by plaintiffs’ memorandum (a different distinction than the

repealed distinction set out in the Amended Complaint) was described in the

affidavits of Robert and Geraldine Osborn, which were incorporated by reference in

plaintiffs’ memorandum. Id. at 12. The affidavits explained that the Health Care

and Education Reconciliation Act of 2010 (“HCERA”) contained a provision allowing

what the affidavits called “double benchmark increase[s]” in the Medicare


Case: 1:10-cv-00101-RWS Doc. #: 35-1 Filed: 04/06/11 Page: 2 of 4 PageID #: 509

Advantage capitation rate, but only for “qualifying counties” as defined under the

statute. Robert Osborn Aff. ¶ 17; Geraldine Osborn Aff. ¶ 17. This allegedly denies

equal protection to Medicare Advantage enrollees not living in a qualified county,

whose plans would not be eligible for the qualifying county bonus. Id. ¶ 20-23;

Robert Osborne Aff. ¶¶ 20-23.

When the motion to dismiss was briefed, the Centers for Medicare &

Medicaid Services (“CMS”) had not yet determined which counties would be

“qualifying counties.” The Osborn affidavits speculated, based on “understanding

and belief,” that the county in which the Osborns live, St. Charles County, Missouri,

would not be one of the qualifying counties. Id. ¶ 18; Geraldine Osborn Aff. ¶ 18.

They were mistaken.

On April 4, 2011, CMS announced the Medicare Advantage capitation rates

for 2012, including the determination of which counties are “qualifying counties.”

Contrary to plaintiffs’ expectation, St. Charles County, in which the Osborns live,

and St. Louis County, in which plaintiff Morris lives, are “qualifying counties.”1

1
The rate calculation data were published by CMS at
http://www.cms.gov/MedicareAdvtgSpecRateStats/RSD/itemdetail.asp?filterType=n
one&filterByDID=-99&sortByDID=1&sortOrder=descending&itemID=CMS1246530
&intNumPerPage=10. The “rate calculation” folder that can be selected on that
webpage contains several zipped spreadsheet files. The file “risk2012.csv” contains
the information on which counties are qualifying counties. Each row in the spread-
sheet lists data for one county, which is named in column “C.” Counties are listed
alphabetically by state and then alphabetically by county. Column “AB” indicates
with either “YES” or “NO” whether a county is a qualifying county. Data for St.
Charles County, in which the Osborns live, are set out in row 1597, which includes
a “YES” in column AB. Data for St. Louis County, in which plaintiff Morris lives,
are set out in row 1600, which also includes a “YES” in column AB.

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Case: 1:10-cv-00101-RWS Doc. #: 35-1 Filed: 04/06/11 Page: 3 of 4 PageID #: 510

Because these plaintiffs live in qualifying counties, they lack standing to

continue to press their claim that the statute denies equal protection to Medicare

Advantage enrollees who do not live in qualifying counties.2

Respectfully submitted,

TONY WEST
Assistant Attorney General

RICHARD G. CALLAHAN
United States Attorney

SHEILA M. LIEBER
Deputy Branch Director

/s/ Brian G. Kennedy


BRIAN G. KENNEDY (D.C. Bar No. 228726)
United States Department of Justice
Civil Division
Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20530
Tel.: (202) 514-3357 Fax: (202) 616-8470
Email: Brian.Kennedy@usdoj.gov

2
The other plaintiffs do not participate in, and are not eligible for, Medicare
Advantage and have never claimed standing to challenge the “qualifying county”
distinction in calculating Medicare Advantage rates.

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CERTIFICATE OF SERVICE

I hereby certify that on April 6, 2011, the foregoing was filed electronically

with the Clerk of Court to be served by operation of the Court’s electronic filing

system upon the following:

Mark F. (“Thor”) Hearne, II


Lindsay S.C. Brinton
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Phone: (202) 857-6000
Fax: (202) 857-6395
thornet@ix.netcom.com
brinton.lindsay@arentfox.com

Robert C. O’Brien
Steven A. Haskins
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013
obrien.robert@arentfox.com
haskins.steven@arentfox.com

Attorneys for Plaintiffs

/s/ Brian G. Kennedy


Brian G. Kennedy

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