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Lewis v. Azar

United States District Court, D. Massachusetts

April 5, 2018

Carol Lewis, Plaintiff,
v.
Alex Azar, Secretary of the United States Department of Health and Human Services, Defendant.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE

         Here we have an appeal of a decision by the Secretary of Health and Human Services (“the Secretary” or “defendant”) denying Medicare coverage for a subcutaneous continuous glucose monitor (“CGM”) used by Carol Lewis (“Lewis” or “plaintiff”).

         Pending before the Court are plaintiff's motions to alter the judgment and for a hearing on that motion. For the reasons that follow, plaintiff's motion to alter the judgment will be allowed and her motion for hearing will be denied as moot. Summary judgment will be entered in favor of plaintiff.

         III. Background

         Carol Lewis has had Type 1 diabetes for over 30 years. Consequently, she suffers from hypoglycemia and hyperglycemic unawareness, which means that she cannot determine whether she is experiencing a glucose “high” or “low”. To combat the malady, Lewis's doctor prescribed her a continuous glucose monitor (“CGM”). That device, which is implanted under a patient's skin, computes blood glucose level and transmits that information to a receiver which, in turn, alerts the user of her glucose level. CGM devices also provide information as to the trends of a user's glucose level, allowing a patient and physician to devise a long-term glucose management plan.

         In March, 2013, Lewis submitted five claims to the National Health Insurance Corporation (“NHIC”) for a total of $2, 842 for her use of a Medtronic brand CGM device in June 2011 and March, June, September and November 2012. Those claims were denied and plaintiff filed an appeal of the denials with the Medicare Appeals Council (“the Council”) on March 24, 2014. The Council also denied her claims. It held that the subject equipment did not “serve a medical purpose” as required by agency regulation, 42 C.F.R. § 414.202, and that the CGM was merely precautionary. Accordingly, it found, the CGM was not covered under the Durable Medical Equipment (“DME”) Medicare benefit. Plaintiff petitioned this Court for judicial review in October, 2015. In her complaint, plaintiff states that she

seeks an order reversing these coverage denials and instructing the Secretary to pay the claims at issue. In January, 2017, plaintiff filed a motion for summary judgment, arguing that the Secretary's decision that the CGM device was not covered by Medicare was arbitrary and capricious and not supported by substantial evidence. In due course, defendant filed a motion to affirm the secretary's decision and a reply to plaintiff's opposition thereto. In defendant's reply, the government for the first time argued that plaintiff's claim was moot because plaintiff had switched from using her Medtronic brand CGM device (which was not covered) to a Dexcom brand CGM device (which was covered).

         In August, 2017, this Court treated that reply as “defendant's motion to dismiss plaintiff's claims for lack of subject matter jurisdiction” and allowed the motion, holding that the plaintiff's claims were moot. The Court stated

Because plaintiff is not using the subject CGM equipment, she lacks a legal interest in the outcome of the case and, therefore, her claims will be dismissed as moot.

         IV. Motion to alter the judgment

         A motion for reconsideration is an “extraordinary remedy” granted only when the movant demonstrates that the court committed a “manifest error of law” or that newly discovered evidence not previously available has come to light. Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (quoting Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)). Here, plaintiff argues that the Court erred in denying her action as moot.

         Mootness is a constitutional issue that a court should ordinarily resolve before reaching the merits. ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013). The mootness doctrine ensures that claims are to be justiciable throughout litigation not only when a claim is initially filed. Id. The First Circuit Court of Appeals has identified the following instances of cases becoming moot:

1) when the issues presented are no longer live or the parties lack a legally cognizable ...

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