UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CATHERINE JOHNSON, et al., Plaintiffs, v. Case No. 1:22-cv-03024 (TNM) XAVIER BECERRA, in his official capacity as Secretary of Health and Human Services, Defendant. MEMORANDUM OPINION Medicare beneficiaries with chronic, debilitating conditions have struggled to find home health agencies (HHAs) willing or able to provide them with in-home aide services. They now sue the Secretary of Health and Human Services (HHS) for his role in administering the Medicare program. Plaintiffs allege that an assortment of the Secretary’s policies and practices deter the availability of aide services in violation of the Medicare statute and the Rehabilitation Act. The Secretary moves to dismiss for lack of subject matter jurisdiction and alternatively for failure to state a claim. Because Plaintiffs lack standing to challenge the Secretary’s policies, the Court lacks subject matter jurisdiction and must grant the Secretary’s motion. I. A. Medicare reimburses private agencies that care for eligible aged and disabled persons. The Centers for Medicare & Medicaid Services (CMS), a component of HHS, administers this health insurance program. Medicare covers some services that are provided in the home by participating home health agencies. These services include skilled nursing services, physical and occupational therapy, and, relevant here, “part-time or intermittent services of a home health aide.” 42 U.S.C. § 1395x(m)(1), (2), (4). Home health aides “provide hands-on personal care to the beneficiary, or services that are needed to maintain the beneficiary’s health, or [] facilitate treatment of the beneficiary’s illness or injury.” Compl. ¶ 43; see also C.F.R. § 409.45(b)(1). An aide might, for example, assist a beneficiary with bathing, dressing, or moving around his home. See Compl. ¶ 44. Aides may also provide incidental services, such as changing bed linens, personal laundry, or preparing a light meal. See Compl. ¶ 45; see also C.F.R. § 409.45(b)(4). Medicare covers up to 28 hours (or, in some cases, up to 35 hours) of aide services per week. See 42 U.S.C. § 1395x(m). If a beneficiary is eligible and referred to home health services, the beneficiary identifies an HHA in his area that is willing and able to accept him as a patient. To help patients decide which HHA is right for them, the Medicare statute requires the Secretary to collect care quality data from HHAs and share that data with the public. See 42 U.S.C. § 1395fff(b)(3)(B)(v); 42 C.F.R. § 484.245. To do so, the Secretary publishes a consumer-facing metric known as the “Quality of Patient Care Star Ratings.” See generally Fact Sheet: Quality of Patient Care Star Rating, CMS, https://perma.cc/53Z6-LVKK. This web-based system assigns each HHA a rating ranging from one to five stars, with five stars indicating highest quality. See id. at 1. The Star Ratings are determined using a formula based on “seven measurements of quality.” Id. Five track patient improvement, such as improvement in mobility or breathing. See id. All HHAs reserve the right to choose which patients they serve. And an HHA need not accept Medicare at all. See …
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