United States District Court, Southern District of New York, 05 Civ. 9549 (LAP)

Anticipating that Medicare-Medicaid dual eligible individuals may not be correctly assigned to a Medicare Part D pharmacy benefit plan, and thus denied pharmacy benefits, 8 plaintiffs filed a civil suit on behalf of the entire class of dual eligibles to request that drug benefits for dual eligibles be covered by Medicaid. The suit, filed in US District Court, Southern District of New York names as defendant Michael O. Leavitt of the National Department of Health and Human Services that oversees Medicare and the implementation of Part D. 

The judge, Loretta A. Preska, determined that pre-emptive legal action by advocate organizations cannot challenge changes to the Medicare system. Further, it was determined that should individual dual eligible individuals be denied medications, the individuals (or an advocate for the individual) must first go through the administrative process to correct the improper denial. To challenge the changes to the Medicare system, an individual must have experienced concrete damages or injuries that remained uncorrected after going through the administrative process. 

In the absence of such individuals, pre-emptive suits brought by advocate organizations do not have the power to compel changes to the Medicare system.