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Advantage enrollees “Geraldine and Robert Osborn and Dale Morris assert[ing]
that PPACA’s distinction between themselves, on the one hand, and any similarly
situated person living in one of the counties afforded preferential treatment under
citizens.” Pls’ Mot. To Dismiss Opp. at 13. The geographic distinction among
repealed distinction set out in the Amended Complaint) was described in the
plaintiffs’ memorandum. Id. at 12. The affidavits explained that the Health Care
Advantage capitation rate, but only for “qualifying counties” as defined under the
statute. Robert Osborn Aff. ¶ 17; Geraldine Osborn Aff. ¶ 17. This allegedly denies
whose plans would not be eligible for the qualifying county bonus. Id. ¶ 20-23;
When the motion to dismiss was briefed, the Centers for Medicare &
Medicaid Services (“CMS”) had not yet determined which counties would be
and belief,” that the county in which the Osborns live, St. Charles County, Missouri,
would not be one of the qualifying counties. Id. ¶ 18; Geraldine Osborn Aff. ¶ 18.
for 2012, including the determination of which counties are “qualifying counties.”
Contrary to plaintiffs’ expectation, St. Charles County, in which the Osborns live,
and St. Louis County, in which plaintiff Morris lives, are “qualifying counties.”1
1
The rate calculation data were published by CMS at
http://www.cms.gov/MedicareAdvtgSpecRateStats/RSD/itemdetail.asp?filterType=n
one&filterByDID=-99&sortByDID=1&sortOrder=descending&itemID=CMS1246530
&intNumPerPage=10. The “rate calculation” folder that can be selected on that
webpage contains several zipped spreadsheet files. The file “risk2012.csv” contains
the information on which counties are qualifying counties. Each row in the spread-
sheet lists data for one county, which is named in column “C.” Counties are listed
alphabetically by state and then alphabetically by county. Column “AB” indicates
with either “YES” or “NO” whether a county is a qualifying county. Data for St.
Charles County, in which the Osborns live, are set out in row 1597, which includes
a “YES” in column AB. Data for St. Louis County, in which plaintiff Morris lives,
are set out in row 1600, which also includes a “YES” in column AB.
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Case: 1:10-cv-00101-RWS Doc. #: 35-1 Filed: 04/06/11 Page: 3 of 4 PageID #: 510
continue to press their claim that the statute denies equal protection to Medicare
Respectfully submitted,
TONY WEST
Assistant Attorney General
RICHARD G. CALLAHAN
United States Attorney
SHEILA M. LIEBER
Deputy Branch Director
2
The other plaintiffs do not participate in, and are not eligible for, Medicare
Advantage and have never claimed standing to challenge the “qualifying county”
distinction in calculating Medicare Advantage rates.
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Case: 1:10-cv-00101-RWS Doc. #: 35-1 Filed: 04/06/11 Page: 4 of 4 PageID #: 511
CERTIFICATE OF SERVICE
I hereby certify that on April 6, 2011, the foregoing was filed electronically
with the Clerk of Court to be served by operation of the Court’s electronic filing
Robert C. O’Brien
Steven A. Haskins
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013
obrien.robert@arentfox.com
haskins.steven@arentfox.com
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