Federal Judge: CMS appears “indifferent to, if not ignore entirely, the large number of individuals in the [USA] that are developmentally disabled and have other disabilities…
Editor’s Note: In the Order and Memorandum attached here, a Federal Judge issued a blistering criticism of CMS’ management of the competitive bidding program. The following are excerpts from the US District Court Judge Donovan W. Frank’s Memorandum and Order in Key Medical Supply, Inc. v. Sebelius et al.
While the decision on the motions is supported by law, the Court is deeply concerned about the unjust consequences of its order. As such, the Court feels compelled to issue a short memorandum herewith, prior to issuing its full memorandum and opinion.
Notably, if the Court did have jurisdiction over this case, it would likely conclude that Defendants’ decision here was arbitrary and capricious. While the 1,300 page administrative record makes references to low profile enteral feeding tubes with respect to children and individuals with dementia, Defendants appear indifferent to, if not ignore entirely, the large number of individuals in the United States of America that are developmentally disabled and have other disabilities, who have been prescribed and provided low profile enteral feeding tubes for a number of years. In fact, more than 80 percent of Plaintiff’s approximately 5,000 clients are individuals with developmental and other disabilities.
Each and every citizen is entitled to equal justice under law, which is not measured by incidence of death or hospital admissions, but rather by the right to receive medically necessary treatment and to live each day with dignity and respect. In this case, such medically necessary treatment includes low profile and enteral feeding tubes—prescribed by physicians—for individuals with developmental and other disabilities for the reasons stated above.
This is a sad day for those who believe that when a judge adheres, even-handedly, to his or her oath of office, justice will prevail and the public interest will be served. To the extent that a civilized and democratic society is measured by the manner in which it treats and protects its most vulnerable members, it has failed today.
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