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);

. 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

. The Star

Ratings are determined using a formula based on “seven measurements of quality.”

Five

track patient improvement, such as improvement in mobility or breathing. See

All HHAs reserve the right to choose which patients they serve. And an HHA need not

accept Medicare at all. See 42 U.S.C. § 1395a(a) (providing that a beneficiary may obtain health

services “if such institution, agency, or person undertakes to provide him such services”

(emphasis added)). More, an HHA may only accept a patient when it reasonably expects that it

2 can meet the patient’s needs and provide the services described in her plan of care. See

(a)(1) (“Patients are accepted for treatment on the reasonable expectation that an

HHA can meet the patient’s medical, nursing, rehabilitative, and social needs in his or her place

of residency.”). And once an HHA has accepted a patient, it must provide care as described in

the patient’s plan of care. See

§ 484.60 (“Each patient must receive the home health services

that are written in an individualized plan of care . . . .”).

Medicare imposes other conditions of participation on HHAs. For example, an HHA is

required to “arrange a safe and appropriate transfer to other care entities” if it discharges a

patient. Id. § 484.50(d)(1). It must also accept, document, and investigate patient complaints.

See id. § 484.50(e)(1). If CMS receives many complaints, it must survey the HHA for

compliance. See 42 U.S.C. § 1395bbb(c)(2)(B)(ii). CMS must also conduct a standard survey of

every HHA no less than once every three years. See id. § 1395bbb(c)(2)(A). And HHAs must

meet all applicable civil rights requirements, including Section 504 of the Rehabilitation Act of

1973. See

.

Under the Medicare statute, the Secretary has the “duty and responsibility” to “assure”

that “the enforcement of such conditions and requirements are adequate to protect the health and

safety of individuals under the care of a[n] [HHA] and to promote the effective and efficient use

of public moneys.”

§ 1395bbb(b). CMS has the concomitant responsibility to terminate

agreements with HHAs that fail to comply with the conditions and requirements of participation.

See

(a)(9), 489.2(b)(3).

Because these services are not provided directly by the federal government, Medicare

reimburses participating HHAs when they provide covered services. To control costs, Medicare

pays HHAs prospectively for their services rather than reimbursing providers after-the-fact. This

3 is required by statute. See 42 U.S.C. § 1395fff(a). Medicare reimbursements are based on 30-

day periods of home health care. See id. § 1395fff(b)(2)(B). To calculate payments, each period

is categorized into one of 432 “case-mix” groups based on the beneficiary’s specific care

requirements. See

. For instance, Medicare pays a higher rate for treatment

of patients with certain comorbidities or for patients in a clinical grouping that has historically

required more intensive care. The Secretary annually updates payment rates and policies through

administrative rulemaking. See Compl. ¶ 58.

B.

Now to the substance of this case. The individual Plaintiffs in this putative class action

are Medicare beneficiaries with chronic, disabling conditions. See Compl. ¶¶ 15–17. Though

Medicare covers their aide services, they have struggled to find providers willing or able to

provide those services. At times, Plaintiffs have found HHAs to accept them as Medicare

patients. Even then, they were not provided with the full amount or duration of aide described in

their plans of care. See, e.g.,

¶¶ 88–90, 112. To bridge gaps, these Plaintiffs have relied on

assistance from family members and privately paid aides. See

. But self-

help only goes so far. Plaintiffs suffer deteriorating health during times of intermittent care. See

¶¶ 91–99, 110–13. And, unable to obtain needed services at home, they have been forced to

resort to institutional settings, such as hospitals or nursing homes, to obtain care. See

¶¶ 114–

17.

Consider lead Plaintiff Catherine Johnson, who suffers from quadriplegia resulting from

multiple sclerosis. See

¶¶ 81–82. Following a period of insufficient and irregular home

health care, she was hospitalized in the intensive care unit. See

. After hospitalization,

Johnson had to find another Medicare-certified HHA. See

. And although her eligibility

4 did not change, that second HHA stopped providing aide services after only 60 days. See

That same HHA, however, continued to provide other kinds of Medicare-covered home health

services. See

So Johnson again resorted to paying out-of-pocket for more aide services, even

though she was under the care of an HHA. See

.

Joining the individual Plaintiffs in this suit are the National Multiple Sclerosis Society

and Team Gleason. See

¶¶ 18–19. Many individuals these groups serve struggle to obtain

home care services, including Medicare-covered home health aide services. See

¶¶ 147–48,

166. In response, these groups have diverted resources to fund private aide care for Medicare

beneficiaries like Johnson. See

¶¶ 150–59, 165–69.

Plaintiffs sued the Secretary for his role in administering Medicare’s home health benefit,

and later moved for class certification. See Mot. to Certify Class, ECF No. 26. First, they allege

that various of the Secretary’s “policies and practices . . . impede and restrict the availability and

accessibility of Medicare-covered home health aide services.”

. This, they claim,

violates the Secretary’s statutory “duty to oversee and enforce the Medicare Conditions of

Participation and requirements.”

Second, Plaintiffs allege that the Secretary’s “policies and

practices discriminate against Plaintiffs . . . on the basis of disability” in violation of Section 504

of the Rehabilitation Act,

(a).

. They argue the Secretary is violating

§ 504 and its implementing regulations by administering Medicare in a way that risks

unnecessary institutionalization of beneficiaries with chronic conditions. See id. ¶ 193.

The Secretary now moves to dismiss all claims, see Mot. to Dismiss (MTD), ECF No. 21,

and the Court held a hearing on that motion. He argues that the Court lacks subject matter

jurisdiction and alternatively that Plaintiffs fail to state a claim. The Court agrees that it lacks

subject matter jurisdiction and will grant the Secretary’s motion to dismiss.

5 II.

Before it may pass on the merits of Plaintiffs’ claims, the Court must first confirm its

jurisdiction over this case. Rule 12(b)(1) provides for the dismissal of an action for lack of

subject matter jurisdiction, including lack of standing. See Lawyers’ Comm. For 9/11 Inquiry,

Inc. v. Wray,

, 30 (D.D.C. 2020), aff’d,

(D.C. Cir. 2021).

The burden is on Plaintiffs to show subject matter jurisdiction.

. And because

jurisdictional challenges implicate the Court’s power to hear a case, “the Court must give the

plaintiff’s factual allegations closer scrutiny than would be required for a 12(b)(6) motion for

failure to state a claim.” La Botz v. FEC,

(D.D.C. 2014). Thus, “the court

is not limited to the allegations contained in the complaint.”

The Secretary argues that Plaintiffs lack standing to challenge his administration of the

Medicare program. Article III of the Constitution limits the jurisdiction of federal courts to

“actual cases or controversies.” Clapper v. Amnesty Int’l USA,

(2013)

(cleaned up). This means a party must have “[s]tanding to sue.”

(cleaned up). To establish

standing, Plaintiffs must show they have suffered (1) an injury in fact, (2) that is fairly traceable

to the challenged conduct, and (3) “likely” to be redressed by a favorable decision. Lujan v.

Defenders of Wildlife,

, 560–61 (1992) (cleaned up). “Only one plaintiff needs

standing to press each claim.” Mass. Coal. for Immigr. Reform v. DHS,

, at *3

(D.D.C. Aug. 11, 2022).

III.

The Secretary argues that Plaintiffs lack standing to challenge his administration of the

Medicare program. He does not dispute that Plaintiffs have alleged an injury in fact. The

individual Plaintiffs have been unable to access Medicare-covered home health aide services

6 despite meeting all requirements. See Compl. ¶¶ 101, 112, 135. And the organizational

Plaintiffs have diverted resources to help their constituents fill the void between what Medicare

entitles them to and what HHAs are willing to provide. See

¶¶ 150–59, 165–71.

Instead, the Secretary contends that Plaintiffs failed to show that these injuries were

caused by him or that their requested relief would redress any harm. The Court agrees that

Plaintiffs have at minimum failed to plausibly allege redressability. Thus, they lack standing to

sue.

A.

The Court starts with the nature of Plaintiffs’ injuries. When causation and redressability

“hinge upon the independent choices of [a] regulated third party, it becomes the burden of the

plaintiff to adduce facts showing that these choices have been or will be made in such manner as

to produce causation and permit redressability of injury.” Nat’l Wrestling Coaches Ass’n v.

Dep’t of Educ.,

(D.C. Cir. 2004) (cleaned up). Thus, if “a plaintiff’s asserted

injury arises from the Government’s regulation of a third party that is not before the court, it

becomes substantially more difficult to establish standing.”

(cleaned up).

The injuries asserted here result directly from individual, third party HHAs declining to

provide Plaintiffs with Medicare-covered aide services. This happens in different ways. Some

HHAs refuse at the outset to accept Medicare beneficiaries who require aide services. See

Compl. ¶¶ 11. Others initially provide aide visits and then discontinue or reduce those services

despite the beneficiary’s plan of care remaining unchanged. See

¶¶ 100–01, 103, 135. What

Plaintiffs have in common is that their injuries result directly from “choices made by

independent actors not before the court[.]” Lujan,

.

7 Now for Plaintiffs’ theory of causation. Broadly speaking, they claim that HHAs are less

likely to offer home health aide services because of the Secretary’s oversight practices. See

Opp’n at 7–11. Plaintiffs say that their injuries can be traced to the Star Rating system and audit

procedures. First, the Star Rating system penalizes HHAs that provide aide services to

beneficiaries with ongoing or debilitating conditions. See Compl. ¶ 73. It does so by rewarding

providers that care for patients who show demonstrable improvements in health outcomes. See

id. ¶ 72. So the Secretary’s methodology encourages HHAs to juice their ratings by not offering

aide services to beneficiaries who are not expected to recover. See id. ¶ 74.

Compounding Plaintiffs’ troubles, the Secretary is allegedly more likely to audit HHAs

that serve patients with low likelihoods of improving. Those patients often require care for

longer than the average length. See id. ¶ 67. This “may attract Medicare reviewers’ attention,”

causing HHAs to “los[e] time and resources addressing audits and reviews.” Id. HHAs thus

reduce the risk of costly audits by not providing aide services to patients with ongoing illness

altogether.

To bolster their theory of causation, Plaintiffs point to a 90% decline nationally in home

health aide visits between 1998 and 2019. See id. ¶ 179; Tr. of Mot. Hr’g (Hr’g Tr.) at 43. They

emphasize that this occurred even though Medicare’s eligibility criteria for aide services have

remained essentially the same. See id. ¶ 6. The implication of this, Plaintiffs suggest, is that the

Secretary’s policies must be to blame for the systemic shortage of home health aide services.

This Court need not decide whether the Secretary caused Plaintiffs’ injuries. Even

assuming that their injuries are caused by the Secretary’s Star Rating system and enforcement of

Medicare’s Conditions of Participation more broadly, it is “purely speculative” that these injuries

would be redressed if the Court were to grant Plaintiffs the relief they seek. Nat’l Wrestling

8 Coaches Ass’n,

. Plaintiffs thus lack Article III standing to bring this action. See

U.S. Ecology, Inc v. DOI,

(D.C. Cir. 2000) (explaining that “a deficiency on any

one of the three prongs suffices to defeat standing”).

“Redressability examines whether the relief sought, assuming that the court chooses to

grant it, will likely alleviate the particularized injury alleged by the plaintiff.” West v. Lynch,

(D.C. Cir. 2017) (cleaned up). “The key word is ‘likely.’”

(quoting

Lujan,

). And while the Court “must take the complaint’s allegations of facts,

historical or otherwise demonstrable, as true,” it “treat[s] allegations that are really predictions

differently.” Arpaio v. Obama,

(D.C. Cir. 2015). “When considering any chain

of allegations for standing purposes,” the Court “may reject as overly speculative those links

which are predictions of future events (especially future actions to be taken by third parties).”

Accordingly, when “the challenged conduct is at best an indirect or contributing cause of the

plaintiff’s injury[,] . . . the plaintiff faces an uphill climb in pleading and proving redressability.”

(cleaned up).

“The starting point in the redressability analysis is necessarily the relief sought.”

Abulhawa v. U.S. Dep’t of Treasury,

(D.D.C. 2017). Plaintiffs “request[]

relief that would order the Secretary to . . . ensure reasonable access to the home health aide

services authorized by Medicare law, administer the home health benefit in accordance with the

integration mandate, meaningfully enforce Medicare’s Conditions of Participation regarding

meeting patients’ needs, and ensure that criteria and methods of administration used in audits and

quality rating are non-discriminatory and comport with the integration mandate.” Opp’n at 13;

see also Compl. at 52–56.

9 Plaintiffs do little more than recite the statutory requirements that bind HHS and list

outcomes they hope the agency will achieve. Plaintiffs’ framing of the requested relief at such a

high level of generality is a red flag that they have not met their burden to show redressability.

They largely request “a generalized injunction to obey the law.” United States v. Philip Morris

USA, Inc.,

(D.C. Cir. 2009). At oral argument, the Court asked Plaintiffs to

clarify what aspects of the program they are seeking to enjoin. Counsel’s most specific answer

was that the Court should make “reasonable modifications” to “the quality rating system and the

auditing practices of the Secretary.” Hr’g Tr. at 3, 5. This “would mean that the needs of people

with chronic and disabling conditions would have to be taken into account in those policies and

practices.” Id. at 5. But counsel never explained what those modifications would look like.

Without knowing the specific changes that Plaintiffs want the Secretary to make, it is

hard to conclude that ruling against the Secretary would make it easier for them to find willing

HHAs. Put differently, when the Court is unsure of what Plaintiffs are asking it to order the

Secretary to do, it necessarily cannot evaluate whether granting that relief would redress the

injuries alleged. Cf. Fed. R. Civ. P. 65(d) (injunctive relief “must” “state its terms specifically”

and “describe in reasonable detail—and not be referring to the complaint or other document—the

act or acts restrained or required”).

The plausibility of Plaintiffs’ theory of redressability suffers from other problems. First,

their theory of causation undercuts their claim that enjoining the Secretary’s auditing practices

would afford them relief. Plaintiffs allege that HHAs are encouraged not to provide aide services

because providing such care risks more frequent audits and potential penalties. At the same

time, Plaintiffs also suggest that the Secretary could help their situation by conducting even more

audits—of both HHAs that do and do not currently provide aide services. See Compl. ¶ 66 (“The

10 Secretary does not regularly audit, review, or monitor the discrepancy between beneficiaries’

service needs and the services that are actually delivered.”). More generally, it is hard to see

how the Secretary should ramp up enforcement of Medicare’s Conditions of Participation

without increasing, or at least maintaining, the current level of oversight. Plaintiffs have not

explained how fewer audits would lead to increased compliance with Medicare’s requirements.

Second, recall that home health aide visits have been on the decline nationally for at least

two decades. But the Star Rating system did not even exist until 2015. Fact Sheet: Quality of

Patient Care Star Rating at 1. The Court is skeptical that relief from the current formula would

reverse a trend that began well before that methodology existed. See Arpaio,

(considering “logic” of redressability).

Those concerns aside, Plaintiffs have not established standing for a more basic reason.

They have not shown that it is “likely, as opposed to merely speculative,” that ruling against the

Secretary will alleviate their difficulty in finding HHAs willing to provide aide services. Lujan,

. The unavoidable fact is that HHAs are independent market participants who

elect whether to accept Medicare case-by-case. See 42 U.S.C. § 1395a(a) (Medicare

beneficiaries may obtain services from an institution “if such institution, agency, or person

undertakes to provide him such services” (emphasis added)). Thus, meddling with the

Secretary’s auditing practices or Star Rating methodology would not stop HHAs from

“exercising their own discretion” to refuse aide services to Plaintiffs. West,

(cleaned up). Plaintiffs have “offered nothing but speculation that a favorable judicial decision

would alter the [HHAs] independent choices on that score.”

(cleaned up).

And “the Supreme Court has made clear that a plaintiff’s standing fails where it is purely

speculative that a requested change in government policy will alter the behavior of regulated

11 third parties that are the direct cause of the plaintiff’s injuries.” Nat’l Wrestling Coaches Ass’n,

.

The Court’s decision in Simon v. Eastern Kentucky Welfare Rights Organization,

(1976), is instructive. There, organizations representing indigent individuals challenged

an IRS decision to give favorable tax treatment to nonprofit hospitals that offered only certain

services to the indigent.

. The Court assumed that “the IRS’s new policy

encourages a hospital to provide fewer services to indigents than it might have under the

previous policy.”

at 42 n.23. Even so, the Court rejected as too speculative plaintiffs’

allegation that a return to the old regime would redress their injuries. The Court explained that

“it is just as plausible that the hospitals to which [plaintiffs] may apply for service would elect to

forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level

of uncompensated services.”

. Plaintiffs’ complaint thus could not “even survive a

motion to dismiss.”

at 45 n.25. So too here.

This Court credits Plaintiffs’ allegations that the Secretary’s Star Rating methodology

and enforcement of the Conditions of Participation “encourage[]” HHAs not to offer aide

services to patients with chronic conditions.

at 42 n.23. But, as in Simon, Plaintiffs cannot

carry their burden without more. “It is purely speculative whether . . . the desired exercise of the

[C]ourt’s remedial powers in this suit would result in the availability to [Plaintiffs] of such

services.”

at 42–43. As we will see, even if the Secretary’s practices “provided some

encouragement” to those HHAs that decided not to provide covered aide services, it is just as

plausible those providers would make the same decision given other market forces. Arpaio, 979

F.3d at 21.

12 Indeed, the D.C. Circuit has explained that there are “circumstances in which

governmental action is a substantial contributing factor in bringing about a specific harm, but the

undoing of the governmental action will not undo the harm, because the new status quo is held in

place by other forces.” Renal Physicians Ass’n v. HHS,

(D.C. Cir. 2007).

That reasoning applies here.

Consider the “economic . . . realities” of Medicare’s reimbursement scheme. Arpaio, 979

F.3d at 21. HHAs are compensated prospectively based on the expected cost of care rather than

retrospectively based on actual cost. See Compl. ¶¶ 57–59. This is mandated by statute, which

Plaintiffs do not challenge. See 42 U.S.C. § 1395fff. More importantly, aide services are

reimbursed at a fixed rate based on the beneficiary’s expected care needs. See Compl. ¶ 58. The

rates, which Plaintiffs also do not challenge, are updated annually through notice and comment

rulemaking. See id.

Of course, the prospective nature and rate of reimbursement no doubt factors, likely quite

heavily, in an HHA’s business decision whether to accept a Medicare beneficiary. Plaintiffs

themselves suggest that these realities drive HHAs not to offer the services they seek. See Opp’n

at 24 (arguing that “[t]he Secretary . . has authority to use the rulemaking process to ensure that

payment methods and criteria do not deprive Plaintiffs of the aide services” sought).

More, the Court takes judicial notice of the ongoing shortage of home health care

workers. 1 See, e.g., Arpaio, 797 F.3d at 21–22 (examining redressability given other market

1 “[A] court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Johnson v. Comm’n on Presidential Debates,

(D.D.C. 2016), aff’d,

(D.C. Cir. 2017) (cleaned up). The nationwide shortage of home health care workers has been well documented. See, e.g., Christopher Rowland, Seniors Are Stuck at Home Alone as Health Aides Flee for Higher-Paying Jobs, The Washington Post (Sept. 22, 2022), https://perma.cc/3D69-UVJX.

13 forces); see also Bell Atl. Corp. v. Twombly,

(2007) (explaining that at the

motion to dismiss stage, courts should consider “obvious alternative explanation[s]”). Plaintiffs

do not dispute this fact. See Hr’g Tr. at 11. Though by no means dispositive, this too magnifies

the speculative nature of Plaintiffs’ claim that this Court can remedy their inability to obtain aide

services.

In sum, Plaintiffs have alleged no facts suggesting that it is “likely, as opposed to merely

speculative,” that HHAs would behave any differently with respect to aide services if they

prevail. Lujan,

. While the Secretary’s policies might have contributed to an

HHA’s decision not to provide aide services, so, too, might Medicare’s reimbursement scheme

and labor market. Plaintiffs concede that the shortage of aide care is longstanding, that it is “a

complex situation,” and that “[t]here are multiple factors at work.” Hr’g Tr. at 11. And “[w]hen

conjecture is necessary, redressability is lacking.” West,

.

B.

Plaintiffs’ arguments to the contrary are unpersuasive. They primarily argue that “[c]ase

law regarding independent third-party market participants is inapposite” because the third parties

here are regulated by the Secretary. Opp’n at 12. That is, the Secretary “routinely takes actions

to influence HHAs’ behavior” given his “duty to administer” Medicare’s home health benefit

“through the[se] third parties.” Id. at 13. According to Plaintiffs, this implies that the Secretary

can necessarily regulate HHAs in a way that will address their injuries. But “one need not adopt

the view that” the Secretary “is totally ineffectual to find that the likelihood of redress is too

speculative.” Nat’l Wrestling Coaches Ass’n,

. And the regulatory framework in

which HHAs are situated does not vitiate Plaintiffs’ burden to show their injuries are redressable.

14 The Supreme Court has been clear on this point. When redressability “hinge[s] on the

response of [a] regulated (or regulable) third party to the government action or inaction,” “it

becomes the burden of the plaintiff to adduce facts showing that these choices have been or will

be made in such manner as to . . . permit redressability of the injury.” Lujan,

(emphasis added). So even though this case is about “injuries caused by regulated third parties,”

the Court may only reach the merits of Plaintiffs’ claims if there is “little doubt as to . . . the

likelihood of redress.” Nat’l Wrestling Coaches Ass’n,

(emphasis added).

Plaintiffs fairly point out that the Secretary “routinely takes actions to influence HHAs’

behavior.” Opp’n at 13. But they have not shown the actions requested here would change the

independent business decisions of HHAs not to accept certain patients. The prospective payment

requirement, reimbursement rates, and labor market surely play into an HHAs’ calculus whether

to offer certain aide services. Plaintiffs “do[] not explain how” their requested relief “would

interact with those and other factors affecting” HHAs’ business decisions. Arpaio,

. So the Court must speculate whether, for instance, tweaking the Secretary’s Star Rating

system or auditing practices would ultimately afford Plaintiffs any relief.

To be sure, the Court could fashion some remedy that might give Plaintiffs “better odds”

of finding willing HHAs. Nat’l Wrestling Coaches Ass’n,

. But it cannot change

HHAs’ discretion under the Medicare statute to choose not to offer aide services to Plaintiffs.

And “a quest for ill-defined ‘better odds’ is not close to what is required to satisfy the

redressability prong of Article III.”

Indeed, “it will often be possible to allege with some

plausibility that a change in governmental policy is likely to cause other persons or institutions to

modify their behavior in ways beneficial to the plaintiff.” N.W. Airlines, Inc. v. FAA,

, 203 n.2 (D.C. Cir. 1986). If a plaintiff could meet its burden without more, “courts would

15 be thrust into a far larger role of judging governmental policies than is presently the case, or than

seems desirable.” 2

The Court credits Plaintiffs’ allegations that the Secretary, at least at the margins, could

do more to encourage HHAs to provide aide services. It is understandable that they ask the

Secretary to help them obtain the critical services that Medicare covers. But Medicare functions

by reimbursing private entities that choose to participate in the program. It does not guarantee or

provide health care. Tinkering with the Secretary’s oversight of the program would not change

this. Nor would it cabin HHAs’ discretion to accept Medicare for only some, if any, services.

The Court is also mindful of the complex market forces, including Medicare’s fixed

reimbursement scheme, that impact HHAs’ willingness or ability to provide certain services.

At bottom, it is purely speculative that a decision in Plaintiffs’ favor would meaningfully

alter the economic calculus by which HHAs determine whether to offer aide services. “Where

predictions are so uncertain,” the Court is “prohibited from finding standing.” Arpaio,

.

2 Relying on three out-of-circuit district court decisions, Plaintiffs suggest that Article III’s redressability requirement is relaxed in Medicare class actions and integration mandate cases. The Court disagrees. Plaintiffs’ lead case, Jimmo v. Sebelius, No. 11-cv-00017,

, at *16 (D. Vt. Oct. 25, 2011), is inapt. It concerned an alleged “violation of a procedural right,” and only in the context of a procedural injury will “courts relax—while not wholly eliminating—the issues of imminence and redressability.”

The Court is also unpersuaded by Parrales v. Dudek, No. 4:15-cv-424,

(N.D. Fla. Dec. 24, 2015), and Murphy ex rel. Murphy v. Minnesota Department of Human Services,

(D. Minn. 2017). In any event, insofar as these cases suggest that Plaintiffs can meet their burden with conclusory allegations of redressability at the pleading stage, they conflict with settled circuit and Supreme Court precedent.

16 IV.

For these reasons, the Court concludes that Plaintiffs lack Article III standing and will

grant the Secretary’s motion to dismiss.3

A separate Order will issue today. 2023.04.05 ______ 16:10:06 -04'00' Dated: April 5, 2023 TREVOR N. McFADDEN, U.S.D.J.

3 The Court rejects the Secretary’s argument that it lacks jurisdiction over Plaintiffs’ Medicare claims for failure to exhaust administrative remedies. Before obtaining judicial review of claims arising under the Medicare statute, a plaintiff must first (1) present her claim to the Secretary and (2) fully exhaust all available administrative remedies. See Am. Hosp. Ass’n v. Azar,

(D.C. Cir. 2018). Plaintiffs have adequately presented their claims, and the Court waives the exhaustion requirement. The organizations submitted letters to the Secretary that described paying for aide services for discrete amounts for specific constituents that should have been covered by Medicare. See Compl. ¶¶ 160, 173. The individual Plaintiffs submitted similar claims to either the Medicare contractors that handle initial determinations for their region or to a Medicare Advantage plan. See id. ¶¶ 102, 119, 137. And Plaintiffs allege that these letters raised broader issues about the Secretary’s enforcement of the Medicare statute and its implementing regulations. See Hr’g Tr. at 42. The Secretary submitted such a letter from the National MS Society reflecting this. See MS Society Letter, Sept. 9, 2022, ECF No. 25-1. Plaintiffs thus satisfied the presentment requirement. And though they concededly did not exhaust their administrative remedies, the Court finds that waiver of exhaustion is appropriate here. Waiver is justified when a plaintiff’s challenge is “collateral to his claim of entitlement and he stands to suffer irreparable harm if forced to exhaust his administrative remedies.” Ryan v. Bentsen,

(D.C. Cir. 1993). The Secretary does not contest that Plaintiffs have made a colorable showing of irreparable harm. See Reply at 15–16; Hr’g Tr. at 36–37. And a claim is collateral when it is “not essentially a claim for benefits.” Turnbull v. Berryhill,

, 141 (D.D.C. 2020). That is true here because Plaintiffs bring programmatic challenges to the Secretary’s policies and practices; they explicitly do not seek an award of benefits.

17