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A federal judge has ruled for Medicare plaintiffs and their lawyers, awarding legal fees under the Equal Access to Justice Act well more than double the basic hourly rate that the law provides. The EAJA, designed to make it easier to vindicate governmental abuse of individuals’ legal rights, allows a statutory $125 an hour for plaintiffs lawyers who win and can show the government’s position was never really justified. But in a thoughtful Oct. 23 decision, U.S. District Judge Stefan R. Underhill sweetened the pay day for class action lawyers at the Willimantic, Conn.-based Center for Medicare Advocacy (CMA) by $200 per hour, recognizing their legal expertise and specialization. When the underlying case was decided last January, Underhill ruled that the federal Department of Health and Human Services (DHSS) was violating the constitutional rights of home health care patients by keeping them in the dark about their Medicare status. The class action case, Department of Social Services v. Tommy Thompson, was filed against DHSS by public interest lawyers and Connecticut’s Department of Social Services. The plaintiffs won declaratory orders that Medicare beneficiaries had a constitutional right under the Fifth Amendment to such notice and explanations. The DHHS is appealing Underhill’s ruling to the 2nd U.S. Circuit Court of Appeals. Meanwhile, it also challenged the plaintiffs lawyers’ bid for enhanced fees, contending that their expertise wasn’t worth more than the basic $125-an-hour rate. But in his Oct. 23 decision, Underhill found that lawyers for the CMA are entitled to $325 per hour, in light of the fact some big firm lawyers in Hartford, Conn., currently earn $500 per hour. Underhill also noted that in 1999, the year he left the Stamford, Conn., offices of Day, Berry & Howard for the bench, his own hourly rate was $340. After they lost at trial, Washington-based lawyers for DHSS opposed the fee requests of CMA lawyers Gill Deford, Brad S. Plebani and Judith Stein, contending they were entitled to nothing. Cummings & Lockwood partner Keith B. Gallant assisted the CMA lawyers at the end, and three assistant attorneys general, Maite Barainca, Richard J. Lynch and Rosemary M. McGovern, represented Connecticut agencies. To win fees under the EAJA, plaintiffs face multiple obstacles. At trial, the plaintiffs convinced Underhill on the essential element of such a bid. He ruled the government’s reading of the Medicare regulations was unreasonable. What’s more, he found there was no real justification for failing to tell beneficiaries whether their home health care claims were approved, or to explain when they were denied. Federal circuits are split over what constitutes “distinctive knowledge or specialized skill needful of the litigation in question,” the phrase used by the U.S Supreme Court in Pierce v. Underwood, construing the EAJA in 1988. The 7th, 9th and 11th circuits broadly construe Pierce to mean expertise in a particular area of the law, such as immigration or Social Security law. The narrower view, held by the D.C., 4th and 5th circuits, “requires technical or other education outside the field of American law,” before fees are enhanced. Underhill took the broad view: “I conclude that the narrow interpretation of the EAJA’s special factor language, which the government relies upon in this case, is inconsistent with the purpose of the EAJA and the Supreme Court’s interpretation of the statute in Pierce.” Although patent law was the only example given in Pierce, Underhill wrote that there’s no reason not to consider other legal specialties. In the current case, he noted, “the plaintiffs attorneys possessed specialized expertise in the area of Medicare law [and] the nature of this litigation was unusually complex.” He ruled it “entirely appropriate” to use the special factor exception to “reflect the attorneys’ considerable expertise in the area of Medicare benefits law.” Underhill cited a series of federal decisions from the late 1980s where other Connecticut judges awarded $250-per-hour awards. He also recalled that a “very experienced partner of a large Hartford firm” submitted an affidavit this year in which he attested to his standard $500-an-hour rate. Underhill awarded Gallant, the Cummings & Lockwood lawyer, $375-an-hour — “his standard billing rate during 2002.” He defended the plaintiffs lawyers’ telephone conferences, with four lawyers conferring with a judge or opposing counsel, a practice the DHSS lawyers branded wasteful. “This argument fails,” the judge countered. He wrote that the alternative, circulating memos and e-mails summarizing important events, can be inefficient and confusing. The judge awarded two CMA paralegals $12,653 in fees at $80 per hour, and the four lawyers $296,489, for a total award of $309,142.

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