Settlement Agreement Grijalva, et al. v. Shalala,
CIV 93-711 TUC ACM (D. Ariz.)

Notice of Proposed Rulemaking implementing this settlement

The parties to this Settlement Agreement, Donna E. Shalala, in her official capacity as Secretary, U. S. Department of Health and Human Services, and Gregoria Grijalva et al., on behalf of a class of individuals similarly situated and certified by the court in its Order of July 14, 1995, by and through their undersigned counsel, in the interest of resolving the lawsuit Gregoria Grijalva, et al. v. Shalala, Civ. Action No. 93-711-TUC (D. Ariz.), hereby, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are acknowledged, agree to the following in settlement of this matter 1 :

FN 1 A number of changes have already been made in the notice and appeals processes for Medicare managed care plans since March 3, 1997, which have resolved some of the plaintiffs' concerns.

A. Definitions. Terms that are not specifically defined in this document shall have the meanings assigned to them in the Medicare Act, 42 U. S. C. D 1395 et seq. For the purposes of this settlement agreement only, the following terms used herein are defined as follows:

B. Notice of Proposed Rulemaking ` `` ` Independent Fast Track Review of M+ CO Decisions to Terminate Provider Services

C. Notice and Appeal Enforcement Mechanisms

D. Automatic Expedited Review with Physician Justification ` Defendant will issue guidance clarifying that, to implement the existing standard for granting expedited review, (1) M+COs must notify enrollees in their annual instructions/ notices that an enrollee is automatically entitled under 42 C. F. R. D 422.570( c)( 2)( ii) to an expedited organization determination, and under 42 C. F. R. D 422.584( c)( 2)( ii) to expedited review of an M+ CO decision to deny, reduce or terminate a Medicare-covered service if the enrollee timely submits a statement from a physician that the standard for expedited review has been met; and (2) if a request for expedited review is rejected by the M+CO, the M+CO must again notify the enrollee that the enrollee would be permitted to resubmit a request for expedited review, and would be automatically entitled to expedited review, if the request includes a statement from a physician that the standard for expedited review has been met.

E. Enrollee Access to Evidence

F. Timing of Implementation of Parts C. 1, D, and E -Defendant will make best efforts to implement Parts C. 1., D, and E on or before June 30, 2001.

G. Notification to Plaintiffs of Modification ` Defendant retains her authority to modify forms, regulations, rules, requirements, or procedures that are implemented as a result of this settlement agreement to the extent permitted by law. Defendant agrees to notify plaintiffs, through counsel, upon implementation of any significant modification that relates directly to a term of this settlement agreement if such modification occurs within 2 years after the date of execution of this settlement agreement.

H. Attorneys Fees ` For purposes of this agreement, defendant agrees that plaintiffs are entitled to reasonable attorneys fees for legal work performed on their behalf in furtherance of their claims in this litigation to the extent permitted by law.

I. Enforcement of Settlement Agreement ` The parties will attempt to resolve, by negotiation among counsel, any disputes arising under this agreement. If negotiation fails, neither party will seek to enforce this settlement agreement in Court until 30 days after counsel for the complaining party has contacted opposing counsel in writing, stating the specific basis for the complaining party's belief that a violation of this agreement has occurred.

J. Dismissals/ Stay of Claims

K. This settlement agreement does not constitute an admission by the defendant of any practice that violates or fails to comply with any law, rule, or regulation dealing with any matter within the scope of the allegations contained in the complaint or otherwise raised by plaintiffs in this action.

L. This Settlement Agreement contains the entire agreement of the parties concerning the subject matter of this litigation.

Dated: 8/9/2000

Attorneys, U. S. Department of Justice



SALLY HART Center for Medicare Advocacy, Inc.
LENORE E. GERARD Legal Assistant to the Elderly
CAROL S. JIMENEZ, GILL W. DEFORD, JUDITH A. STEIN Center for Medicare Advocacy, Inc.