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Flores v. United States

United States District Court, E.D. Michigan, Southern Division

June 24, 2015

JOE FLORES, an individual, and CONSUELO FLORES, as court-appointed conservator and guardian of JOE FLORES, as individuals and on behalf of all others similarly situated, Plaintiffs,


AVERN COHN, District Judge.

I. Introduction

In 2011, plaintiff Consuelo Flores, on behalf of her father, Joe Flores (Flores) and others, [1] sued to challenge a decision by TRICARE Management Activity (TRICARE), a managed health care program for members of the uniformed services, retirees, and their dependents, to stop providing coverage to Flores. Flores suffers from "Locked-In Syndrome" which renders him paralyzed in all parts of his body expect for eye and eyelid movement. TRICARE denied coverage on the grounds that the care provided to Flores was "custodial" and not "skilled nursing care." Plaintiff sought relief under the Administrative Procedures Act (APA), 5 U.S.C. § 702, as one aggrieved by an agency action, i.e. TRICARE.

As will be explained, on April 5, 2012, the Court entered a stipulated order remanding the matter to TRICARE for further review and agency decision. (Doc. 29, Remand Order). Upon entry of the Remand Order as will be explained in detail below, the case was "closed" although neither party requested it be closed. No judgment entered. Plaintiff prevailed on remand as TRICARE agreed to provide coverage for Flores' skilled nursing care.

Now, over three years later, plaintiff has moved the Court to reopen the case and enter judgment. Plaintiff asks for the Court to reopen the case and enter a final judgment which affirms "TRICARE's Formal Review Decision" issued on May 22, 2012. The motion appears to have been brought primarily so that plaintiff's counsel can file an application for attorney fees under the Equal Access to Justice Act (EAJA), which the time for doing so runs from the time a judgment is entered.

For the reasons that follow, the motion will be granted.

II. Background[2]

A. Flores' Condition Generally

Flores is a veteran of the United States Armed Services, having served in the Marine Corps honorably for 20 years. He served in Vietnam and retired a highly decorated Master Sergeant. As of the filing of the complaint, he was 61 years old.

Since suffering a stroke in 2003, Flores has been completely paralyzed, unable to move except for his eyes and eyelids. Although Flores has full cognitive function, he has no control over his body or head. His body and vocal chords are immobile.

Because of his condition, Flores has at all times a tracheotomy tube running through his neck, an oxygen concentrator running through his tracheotomy, a feeding tube running through his stomach, and a supra-pubic catheter running through his abdomen into his bladder. According to plaintiff, these devices require constant maintenance by skilled personnel.

Flores is also at risk for infection which plaintiff says also requires constant skilled care to prevent.

Flores resides at Crestmont Healthcare Center (Crestmont), a skilled nursing care facility in Fenton, Michigan. Flores has been at Crestmont since April 3, 2004. His treating physician since 2004 has been Dr, Amy Daros, a specialist in geriatric medicine.

B. Health Care Coverage for Military

In 1956, Congress established a military health care system to "provid[e] an improved and uniform program of medical and dental care for members of the seven uniformed services and their dependents." Dependents' Medical Care Act, Pub. L. No. 84-569; 1956 U.S.C.A.A.N., p. 1971, 10 U.S.C. § 1071, et seq. The law established a system for contracting health care coverage and for the provision of medical services. See 10 U.S.C. §§ 1074, 1076, 1079.

The Department of Defense (DOD) has implemented regulations for the administration of the DOD health care program, commonly referred to originally as the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), and later as TRICARE. See 32 C.F.R. Part 199. TRICARE administers the DOD health benefit program. The purchases care portion of this health benefit plan, the TRICARE Basic Program, augments the direct care provided by the Uniformed Services in the military treatment facilities, i.e. military hospitals, referred to as "direct medical care system." TRICARE is a statutory program of medical benefits. It is similar to a private insurance program, but does not have a contract guaranteeing indemnification or an insured party against a loss for a premium paid. TRICARE is designed to provide financial assistance to beneficiaries for certain medical care obtained from outside, i.e. civilian sources.

Like all health care plans, there are exclusions from coverage. Under TRICARE, statutorily excluded from coverage is any service "not medically or psychologically necessary to prevent, diagnose, or treat a mental or physical illness, injury, or bodily malfunction. 10 U.S.C. § 1079(a)(13). TRICARE also requires that no benefit be extended without submission of an appropriate, complete, and properly executed claim. ...

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