Full opinion text
RULING ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT UNDERHILL, District Judge. The Connecticut Department of Social Services (“DSS”), its Commissioner, Patricia Wilson-Coker (the “Commissioner”), and a statewide class of individuals who are dually eligible for certain Medicare and Medicaid benefits to cover home health care expenses, allege that the Secretary of the United States Department of Health and Human Services (“the Secretary”) has failed to comply with certain procedural requirements of the Medicare regulations. Specifically, the plaintiffs allege that the Secretary, through a financial intermediary, United Government Services of Wisconsin (“UGS”), has failed to provide written, timely and accurate initial coverage and reconsideration determinations to beneficiaries in Connecticut who are receiving home health care services covered by Medicaid, and who have sought reimbursement for such expenses from Medicare by filing a request with UGS. Plaintiffs further allege that the Secretary’s failure to comply with the Medicare regulations is so severe as to constitute a violation of plaintiffs’ procedural due process rights as guaranteed by the Fifth Amendment to the United States Constitution. The Secretary has timely answered plaintiffs’ complaint, and has admitted the majority of plaintiffs’ substantive factual allegations. The Secretary argues, however, that plaintiffs are not entitled to judgment in their favor. Specifically, the Secretary argues that this court does not have subject matter jurisdiction over plaintiffs’ claims and that plaintiffs have failed to exhaust their administrative remedies pri- or to instituting this suit. The Secretary also disputes that UGS’s procedures for handling plaintiffs’ requests are contrary to the various regulations upon which plaintiffs rely. Finally, the Secretary avers that UGS has performed its delegated functions properly, that the Secretary has undertaken lawful supervision of UGS, and that any supervisory action or inaction of UGS by the Secretary is purely within his discretion and is not subject to judicial review. The parties are in agreement that there are no disputed issues of material fact and that the sole issues in controversy are legal issues capable of resolution by the court on summary judgment. To that end, the parties have filed cross-motions for summary judgment on all issues raised in the Amended Complaint. For the following reasons, the court concludes that plaintiffs are entitled to summary judgment in their favor on all of their claims except their claim that the Secretary has failed to ensure that UGS issues sufficiently timely and accurate notices of initial determination and reconsideration decisions. The Secretary is entitled to summary judgment in his favor on those claims. A. BACKGROUND DSS is the Connecticut state agency responsible for administering the state’s Medicaid program. DSS is required by law to seek reimbursement for health care expenditures it makes for Medicaid beneficiaries from any other entity legally obligated to make such payments, including the Medicare program. Medicaid beneficiaries are thus required by law to assign to DSS any rights that they may have to seek payment for home health care services they have received, including any right the beneficiaries may have to seek payment from the Medicare program. DSS is thus subrogated to Connecticut Medicaid beneficiaries’ rights to seek administrative review of a denial of Medicare coverage by a health care service provider. In furtherance of its duty to seek reimbursement for Medicaid expenditures, including reimbursement from Medicare, DSS has established a “Third Party Liability Program.” Specifically, DSS has hired the Center for Medicare Advocacy Inc. (“CMA”), a nonprofit public interest law firm, to seek coverage from Medicare for home health care services for which payment has already been made under Medicaid. In these cases, the health care service provider has determined that Medicare coverage is not appropriate, and so payment has been made under Medicaid. CMA pursues the beneficiaries’ rights to seek review of the provider’s determination of no coverage. The present lawsuit challenges UGS’s handling of CMA’s pursuit of this right of review. Specifically, CMA challenges UGS’s handling of CMA’s requests for initial coverage determinations and UGS’s requests for reconsideration from adverse initial determinations. 2. The Administrative Process HHS does not itself directly handle claims for coverage of home health care services under Medicare. Rather, the Secretary acting through the HHS division known as the Health Care Financing Authority (“HCFA”), has entered into contracts with private entities (typically private insurance companies), known as fiscal intermediaries, to act as HHS’s agent in the initial stages of Medicare coverage determinations. More specifically, initial determinations and reconsideration requests on claims for Part A home health care services are handled by one of four fiscal intermediaries, which HCFA has designated as a “regional home health intermediaries” (“RHHI”). HHAs can submit claims to the RHHI responsible for the region either in which the HHA provided the services to the beneficiary or in which the HHAs’ corporate headquarters are located. If an HHA determines that home health care services provided to a beneficiary are covered by Medicare, it simply submits a claim for payment to the RHHI. The RHHI then determines if the claim submitted by the HHA is covered by Medicare. If, however, the HHA makes a determination that the service is not covered under Medicare, it must notify the beneficiary that the service is not covered. If the beneficiary disagrees with the provider’s determination, he or she may submit a request for payment either to the provider or directly to the fiscal intermediary. The provider will then submit a claim at the request of the beneficiary, known as a “demand bill.” Once the fiscal intermediary receives a claim from a HHA, or a request for payment from a beneficiary, it is required to make an initial determination concerning coverage. There is no regulatory time frame within which this initial determination must be made. Once made, however, the RHHI must notify both the beneficiary and the provider in writing of its initial determination. This notification is known as a “notice of initial determination.” The parties vigorously contest whether the regulations also require the RHHI to provide a copy of the notice of initial determination to a beneficiary’s representative. The RHHI’s initial determination is binding unless the beneficiary files a written request for reconsideration. Upon the filing of a request for reconsideration, the RHHI does an independent, de novo review of the claim. The RHHI is required to provide written notice of the disposition of the request for reconsideration both to the beneficiary and to his or her representative. Disposition of a request for reconsideration is binding unless the claim involves more than $100, and the beneficiary requests a hearing before an administrative law judge within sixty days of the reconsideration decision. A beneficiary is then entitled to a hearing before the Department Appeals Board. Finally, for claims in which more than $1,000 is at issue, judicial review in the United States District Courts is available after a final decision of the Department Appeals Board. A beneficiary must obtain a final decision at each level of administrative review before obtaining review at the next administrative level. 2. UGS’s Practices Prior to December 1997, UGS provided notice of an initial determination both to the beneficiary and to his or her representative using a document known as the “Notice of Medicare Claim Determination.” After December 1997, UGS began sending a form labeled “Medicare Summary Notice” (“MSN”) instead of the Notice of Medicare Claim Determination. In addition, the MSN was sent only to the beneficiary, and not to his or her representative. UGS sent CMA, the representative for the majority of Connecticut dually eligible beneficiaries, magnetic tape cartridges with electronic information about claims processed during the preceding month. UGS also, approximately annually, sent CMA summary spreadsheets containing aggregate information on claims processed by UGS over a longer period of time than the monthly electronic transmissions. UGS entered into an agreement with CMA whereby the sixty-day period for seeking reconsideration of an initial determination was triggered not by the issuance of the MSN, but rather by CMA’s receipt of the monthly summary spreadsheets. Specifically, CMA had sixty days from the date it acknowledged receipt of the monthly report to seek reconsideration of any claim whose denial or rejection first appeared on that monthly report. B. SUBJECT MATTER JURISDICTION AND EXHAUSTION OF ADMINISTRATIVE REMEDIES Plaintiffs assert several bases for subject matter jurisdiction in their Amended Complaint. First, plaintiffs assert jurisdiction under 28 U.S.C. § 1331 (“Section 1331”), which bestows upon “the district courts ... original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Plaintiffs also assert jurisdiction under 28 U.S.C. § 1361 (“Section 1361”), which grants “the district courts ... original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Finally, plaintiffs assert jurisdiction under 42 U.S.C. § 1395ff(b), which permits judicial review “to the same extent as is provided in” 42 U.S.C. § 405(g) (“Section 405(g)”). Section 405(g) provides, in pertinent part, that: Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. The Secretary has challenged plaintiffs’ purported bases for subject matter jurisdiction. The court also, of course, has an independent duty to determine the existence of subject matter jurisdiction. See Da Silva v. Kinsho Intern. Corp., 229 F.3d 358, 361 (2d Cir.2000) (It is the “obligation of a court, on its own motion, to inquire as to subject matter jurisdiction and satisfy itself that such jurisdiction exists.”) (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Accordingly, the court will separately examine each purported basis for subject matter jurisdiction. 1. Federal Question Jurisdiction Under Section 1331 There is no dispute that plaintiffs’ claims “arise under” federal law: namely the Medicare Act and its associated regulations. The Secretary argues, however, that Section 1331 jurisdiction is unavailable because plaintiffs’ claims must be channeled through the administrative procedures set forth in the Medicare Act and its associated regulations. Specifically, the Secretary, relying on Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 5, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (“Illinois Council"), asserts that “[t]he availability of judicial review under the Medicare Act precludes federal question jurisdiction.” In Illinois Council, the Supreme Court held that 42 U.S.C. § 405(h) (“Section 405(h)”), as incorporated into the Medicare Act by 42 U.S.C. § 1395Ü, barred federal question jurisdiction over a challenge by an association of nursing homes to certain of the Secretary’s Medicare regulations. Id. at 5, 120 S.Ct. 1084. The Illinois Council court held that the association was required to pursue its claims through the administrative review procedures, set forth in 42 U.S.C. §§ 1395cc(h), (b)(2)(A); §§ 405(b), (g) (incorporated by § 1395Ü), allowing for appeals from the Secretary’s termination of, or a refusal to renew, a provider agreement for failure to comply with the terms of agreement or the Medicare statutes and regulations. As such, the plaintiff association of nursing homes could not rely upon Section 1331’s grant of federal question jurisdiction; rather their claims were channeled by Section 405(h) through the administrative processes set forth in Section 405(g). As a preliminary matter, there can be little doubt that the Illinois Council holding is not applicable to plaintiffs’ claim that UGS’s procedures are unlawful because plaintiffs do not receive any decision on certain requests for initial determination. The Illinois Council court explicitly held that Section 405(h) is not a bar to jurisdiction where the result would be no review at all of a plaintiffs claims. Illinois Council, 529 U.S. at 19, 120 S.Ct. 1084; see Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 675, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) (“Michigan Academy ”); Furlong v. Shalala, 238 F.3d 227 (2d Cir.2001) (“Furlong II ”); DeWall Enterprises, Inc. v. Thompson, 206 F.Supp.2d 992 (D.Neb.2002). That is, however, the precise import of plaintiffs’ claim; they do not receive an initial determination from which they can seek administrative and, if necessary, judicial review. Accordingly, the court concludes that it has jurisdiction under Section 1331 to hear plaintiffs’ claim that they receive no initial determination on certain requests for an initial determination. Less clear, however, is whether, after Illinois Council, plaintiffs remaining claims are subject to the restrictions of Section 405(h), or if the court has federal question jurisdiction under Section 1331. The plain language of Section 405(h) applies only to those claims that seek to “recover on [a] claim arising under” the Medicare Act. Plaintiffs’ claims certainly are not straightforward “amount determinations” such that they fall squarely within Section 405(h). Rather, they appear more like “methodology” claims which, prior to Illinois Council, would have been exempted from Section 405(h)’s reach under Michigan Academy. Although “the status of the amouni/methodology distinction after Illinois Council is somewhat unclear,” Furlong II, 238 F.3d at 233, the weight of post-Illinois Council authority seems to indicate that federal question jurisdiction under Section 1331 is unavailable for plaintiffs’ remaining claims. Compare Cathedral Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354 (6th Cir.2000); Home Care Assn. Of Amer., Inc. v. United States, 229 F.3d 1163 (10th Cir.2000) (unpublished disposition), with Visiting Nurses Ass’n of Southwestern Indiana, Inc. v. Shalala, 213 F.3d 352, 357 n. 7 (7th Cir. 2000) (distinguishing Illinois Council and holding that Section 405(h) was inapplicable where parties did not challenge the regulatory scheme, but differed in their interpretation of the applicable statute). In any event, the court need not decide this thorny issue because, as set forth below, the court concludes that it has subject matter jurisdiction under both Section 405(g) and Section 1361. 2. Jurisdiction under the Medicare Act Plaintiffs have also asserted jurisdiction under Section 405(g). The Secretary argues that plaintiffs may seek judicial review of their claims pursuant to Section 405(g), incorporated into the Medicare statutes by 42 U.S.C. § 1395ff(b), only once they have received a “final decision” rendered “after a hearing,” which they have not done. Importantly, however, the Secretary concedes that plaintiffs have presented their claims to him and, therefore, that the alleged failure to exhaust is not purely jurisdictional. (Defs Opp. Memo at 4.). Plaintiffs do not contend that, as to each individual request for initial determination or reconsideration at issue, they have obtained a “final decision” “after a hearing.” The parties also do not dispute that the Secretary himself has not, as he might have, waived Section 405(g)’s exhaustion requirement. Rather, the parties dispute whether the court should waive plaintiffs’ need to exhaust the procedures set forth in Section 405(g). If so, jurisdiction lies under Section 405(g). If not, plaintiffs must either exhaust their administrative procedures, or demonstrate the existence of an alternative source of subject matter jurisdiction. It is well settled that “exhaustion is the rule, waiver the exception.” Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir.1996), quoting Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir.1992). Waiver is, however, appropriate when the following circumstances are present: “the challenge is collateral to the demand for benefits, the exhaustion of remedies would be futile, and enforcement of the exhaustion requirement would cause the claimants irreparable injury.” State of New York v. Sullivan, 906 F.2d 910, 918 (2d Cir.1990). “No one element is critical to the resolution of the issue; rather, a more general approach, balancing the competing considerations to arrive at a just result, is in order.” Id. Balancing the foregoing concerns, waiver is appropriate in this case. a. Plaintiffs’ claims are collateral to their claims for benefits. Plaintiffs’ claims are the very paradigm of collateral claims. In Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (“City of New York ”), the Supreme Court upheld the district court’s waiver of exhaustion of the procedures set forth in Section 405(g). Specifically, the Supreme Court relied on the fact that “[t]he class members neither sought nor were awarded benefits in the District Court, but rather challenged the Secretary’s failure to follow the applicable regulations.” Id. at 483, 106 S.Ct. 2022. As in City of New York, the plaintiffs in this case do not seek an award of benefits, either directly or indirectly. Rather, plaintiffs challenge the Secretary’s failure to follow his own regulations in the process of handling their requests for initial determination and reconsideration decisions. Indeed, if plaintiffs were to prevail on each and every claim asserted in this action, there would be no guarantee that any particular plaintiff would receive, or would even be more likely to receive, any benefits previously denied him or her, or any future benefits. Accordingly, the court concludes that plaintiffs’ present claims are collateral to their claims for benefits. See also Eldridge, 424 U.S. at 330, 96 S.Ct. 893 (plaintiffs challenge to constitutionality of administrative procedures for terminating social security disability benefits was “entirely collateral to his substantive claim of entitlement.”); Goodnight v. Shalala, 837 F.Supp. 1564, 1574 (D.Utah 1993) (relying on City of New York; claims collateral because plaintiffs did not seek “a judgment awarding them disability benefits,” or “to correct inadvertent errors or occasional mistakes that ordinarily occur,” but rather a “vindication of [the plaintiffs’] right to fair procedures at the initial and reconsideration stages of the determination process.”); White v. Sullivan, 1991 WL 315124 (D.Vt. Oct. 15, 1991) (“An issue is collateral if, in the event it is decided in the claimant’s favor, the Secretary nevertheless retains the discretion to apply the law and make the final determination as to the amount of benefits a claimant receives. Therefore, courts may waive the exhaustion requirement in order to ensure that the Secretary applies only valid standards in making his decisions, but may not waive it to second-guess his decisions in cases where he applies the proper law.”) (synthesizing cases). The Secretary mistakenly asserts that plaintiffs’ present claims are inextricably intertwined with their claims for benefits and are therefore not collateral. Specifically, the Secretary, seizing on language in Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), and Pavano v. Shalala, 95 F.3d 147 (2d Cir.1996), argues that plaintiffs claims cannot be collateral because they challenge the Secretary’s application of admittedly valid regulations. The Secretary correctly concludes that plaintiffs in this action do not challenge the validity of the Secretary’s regulations, but rather the interpretation and application of the regulations. The Secretary is also correct in noting that, in Pavano, the court held that the “[plaintiffs were not challenging the validity of agency regulations, but challenging the application of regulations to them,” and that “[t]he policies favoring exhaustion are most strongly implicated by actions [such as the one at bar] challenging the application of concededly valid regulations.” Pavano, 95 F.3d at 150 (brackets in original). The Secretary, however, reads too much into the Pavano holding when concluding that plaintiffs’ claims in this case are not collateral. Properly read, Pavano holds that a claim is not collateral where an individual challenges the application of a regulation to his or her specific claim for benefits, i.e., plaintiff “is not seeking relief other than that sought in the administrative hearing,” id., as opposed to challenging the Secretary’s system-wide interpretation and application of a regulation. The seminal decision in City of New York aptly demonstrates this distinction. Specifically, the court noted that that “case [was] materially distinguishable from one in which a claimant sues in district court, alleging mere deviation from the applicable regulations in his particular administrative proceeding.” Id. at 484, 106 S.Ct. 2022 (emphasis added). In such a case, any alleged error would be “fully correctable upon subsequent administrative review since the claimant on appeal will alert the agency to the alleged deviation.” Id. at 484-85, 106 S.Ct. 2022. The court further explained that the plaintiffs in that case, however, stood “on a different footing from one arguing merely that an agency incorrectly applied its regulation,” because “the District Court found a systemwide, unrevealed policy that was inconsistent in critically important ways with established regulations.” Id. at 485, 106 S.Ct. 2022. In addition, the challenged policy did not “depend on the particular facts of the case before it .... ” Id. Accordingly, the plaintiffs’ claims were held to be collateral. Similarly, plaintiffs in this case do not simply aver that, in denying them benefits, the Secretary misapplied an agency regulation. Rather, plaintiffs attack several of the Secretary’s alleged system-wide failures to follow his own regulations. In other words, plaintiffs are not challenging the lawfulness of particular denials of benefits, and seeking to reverse those decisions. Indeed, they do not challenge any specific benefit determination, or class of such determinations, as wrongful. Rather plaintiffs challenge the manner in which benefit determinations are communicated to beneficiaries. Thus, at the core of their claims, plaintiffs are “seeking relief other than that sought in the administrative proceeding.” Pavano, 95 F.3d at 150. b. Plaintiffs’ will suffer irreparable harm if exhaustion is not waived. The Secretary argues that plaintiffs will not suffer irreparable harm if they are required to exhaust their administrative remedies because the very fact that they are dually eligible means that they have already received home health care services and that such services have been paid for by Medicaid. The Secretary further dismisses as inchoate the possibility that plaintiffs’ estates may be diminished after their future deaths by actions of co-plaintiff and subrogee DSS. As such, the Secretary avers, the only real harm to plaintiffs is the mere inconvenience and expense of protracted administrative hearings, which cannot constitute irreparable harm. Even assuming, however, that the only cognizable harm to plaintiffs is the burden of resorting to the administrative processes, waiver would nevertheless be appropriate. There is little doubt that ordinarily “the mere trouble and expense of defending an administrative proceeding is insufficient to warrant judicial review of the agency’s action prior to the conclusion of the administrative proceeding.” Abbey v. Sullivan, 978 F.2d 37, 46 (2d Cir.1992) (quoting Central Hudson Gas & Elec. Corp. v. EPA, 587 F.2d 549, 559 (2d Cir.1978)) (citation omitted). Still, there are exceptions to this rule. Specifically, “[i]n the Medicare context, the ‘other factors’ that might justify waiving the exhaustion requirement have been examined variously under the rubric of futility or irreparable harm.” Id. Thus, “[f]or example, if requiring costly and time-consuming exhaustion of the administrative process would be demonstrably sterile, then the exhaustion requirement may be waived.” Id. As discussed in detail in the section immediately following, plaintiffs would be irreparably harmed if they were forced to exhaust their administrative remedies because exhaustion would be futile. Furthermore, the court is mindful of its duty to “be especially sensitive to this kind of harm where the Government seeks to require claimants to exhaust administrative remedies merely to enable them to receive the procedure they should have been afforded in the first place.” City of New York, 476 U.S. at 484, 106 S.Ct. 2022; see also Tataranowicz v. Sullivan, 959 F.2d 268, 274 (D.C.Cir.1992) (irreparable harm where the “Secretary gives no reason to believe that the agency machinery might accede to plaintiffs’ claims.”). Accordingly, plaintiffs would suffer irreparable harm absent waiver. c. Exhaustion would be futile — it would not serve the purposes of the exhaustion requirement. The Supreme Court has instructed that “[e]xhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.” Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). The Secretary asserts that exhaustion would not be futile because plaintiffs have available to them, and indeed in some instances have successfully availed themselves of, administrative and judicial review of their individual claims. Again, the court takes no issue with the Secretary’s statement of the general principle (i.e., that where claims can be satisfied by resort to the administrative proceedings, the administrative proceedings are not futile). See, e.g., Pavano, 95 F.3d at 150-51; Necketopoulos v. Shalala, 941 F.Supp. 1382, 1395 (S.D.N.Y.1996). The Secretary’s application of that principle to the facts of this case, however, is greatly misplaced. Nowhere in plaintiffs’ Amended Complaint do they either directly or indirectly seek a review of any benefit determinations. Plaintiffs do not seek an award of benefits, nor would resolution of their claims entitle them to any benefits. Rather plaintiffs primarily attack the Secretary’s procedures for notifying them of decisions on requests for an initial determinations and for reconsideration. As the Second Circuit explained in New York v. Sullivan, 906 F.2d at 918, exhaustion of such system-wide procedural claims through the administrative processes set up for individual benefits determinations would be “a pointless exercise.” This is so because, “[although exhaustion may ... result[ ] in some individual members receiving benefits, the procedural right that the claimants [seek] to obtain ... [can] not [be] vindicated by individual eligibility decisions.” Id.; see also Skubel v. Fuoroli, 113 F.3d 330 (2d Cir.1997) (exhaustion futile where agency position appears firm and no realistic possibility that the agency will change its position). In Jones v. Califano, 576 F.2d 12, 18 (2d Cir.1978), the Second Circuit further noted that “Section 405(g) assumes as a condition for judicial review that the determination by the Secretary after a § 405(b) hearing will be adverse to the claimant of benefits. It makes no provision for judicial review of a determination favorable to the complainant.” Thus, an individual plaintiff who may be fortunate enough to interpret an adverse notice of initial determination and have the HHA file a demand bill or claim, may ultimately receive a favorable benefit determination. The favorable determination would not, however, cure the procedural deficiencies experienced by the plaintiff, let alone effect system-wide change. Even more problematic is the situation of those plaintiffs whose providers never file demand bills or claims. One of plaintiffs’ chief complaints is that, where providers fail to file a claim, the beneficiary does not get any notice of initial determination. These plaintiffs necessarily will be unable to vindicate either their claim for benefits or their procedural claims. Accordingly, exhaustion would be futile. See Schoolcraft v. Sullivan, 971 F.2d 81, 87 (8th Cir.1992) (“[E]ven though exhaustion may often result in benefits being awarded it never removes or corrects the systemic errors at the initial and reconsideration stage[s] of the administrative process.”) (emphasis in original; internal quotations omitted). In short, because plaintiffs challenge the Secretary’s procedures in handling their benefits determinations, their claims are collateral to their claims for benefits and, absent waiver, they will suffer irreparable harm due to the futility of seeking exhaustion of the available administrative procedures. Accordingly, the court has jurisdiction over plaintiffs claims under Section 405(g) regardless of whether plaintiffs have exhausted the administrative procedures available to them. 3. Mandamus Jurisdiction Under Section 1361 There can be little doubt that plaintiffs seek “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to [them].” 28 U.S.C. § 1361. Specifically, the thrust of the Amended Complaint is an attempt to force the Secretary, through his agent, UGS, to comply with the alleged dictates of certain of the Medicare statute and regulations. Thus, on its face, the mandamus statute appears to confer jurisdiction over plaintiffs’ claims. The Secretary, citing Heckler v. Ringer, 466 U.S. 602, 615, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), however, avers that “plaintiffs’ failure to exhaust their administrative remedies precludes mandamus jurisdiction regarding those claims.” (Defs Memo at 27 n. 11.) The Secretary’s reliance on Heckler is misplaced. As a preliminary matter, the Supreme Court, both in Heckler and in every other instance when it has been faced with this issue, has specifically declined to decide whether Section 405(h) bars mandamus jurisdiction to review claims arising under the Medicare Act. Heckler, 466 U.S. at 616-17, 104 S.Ct. 2013; Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449, 457 n. 3, 119 S.Ct. 930, 142 L.Ed.2d 919; Bowen v. New York, 476 U.S. 467, 478 n. 9, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986); Norton v. Mathews, 427 U.S. 524, 530, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976); Mathews v. Eldridge, 424 U.S. 319, 332 n. 12, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Second Circuit has, however, tackled the issue and, noting the “impressive array of cases in this and other circuits,” has held that Section 1361 jurisdiction does lie to review the procedures employed by the Secretary in deciding claims. Ellis v. Blum, 643 F.2d 68 (2d Cir.1981); see also Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.1983). Thus, mandamus jurisdiction is not precluded by operation of Section 405(h). Furthermore, the Secretary’s reliance on Heckler in support of his argument that mandamus jurisdiction is unavailable because plaintiffs have alternative means of relief available to them (i.e., the administrative procedures set forth in Section 405(g)), is misplaced. In Heckler, the Supreme Court explained that mandamus relief is available to a plaintiff “only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” 466 U.S. at 616, 104 S.Ct. 2013. However, the Secretary improperly argues that plaintiffs’ purported failure to exhaust all other avenues of relief would constitute a jurisdictional bar to plaintiffs’ claims, as opposed to a challenge to the appropriateness of mandamus relief. In so arguing, the Secretary challenges the merits of plaintiffs’ mandamus claim, not the availability of mandamus jurisdiction. As the Second Circuit recently explained, “[wjhether a disputed matter concerns jurisdiction or the merits (or occasionally both) is sometimes a close question.” Da Silva v. Kinsho Intern. Corp., 229 F.3d 358, 361 (2d Cir.2000). Nonetheless, “[i]t is firmly established ... that the absence of a valid (as opposed to arguable) cause of action does not implicate subject matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the ease.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (emphasis in original). “Rather, the district court has jurisdiction if the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another, unless the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Id. (internal quotation and citation omitted). Although the courts have not explicitly held that the “exhaustion of all avenues” requirement for mandamus relief is non-jurisdictional, this holding is implicit in several key cases. For example in Anderson v. Bowen, 881 F.2d 1 (2d Cir.1989), the Second Circuit “[a]ccept[ed] arguendo that mandamus jurisdiction theoretically can be invoked to permit judicial review of Part B determination despite the preclusive language of 42 U.S.C. § 405(h),” and then went on to “agree with the district court that exercise of mandamus jurisdiction would be inappropriate.” Id. at 5 (emphasis added). Similarly, in Heckler the court first “[a]s-sum[ed] without deciding that the third sentence of § 405(h) does not foreclose mandamus jurisdiction in all Social Security cases,” and only then held that “the District Court did not err in dismissing respondents’ complaint here because it is clear that no writ of mandamus could properly issue in this case.” Heckler, 466 U.S. at 616, 104 S.Ct. 2013; see also Abbey v. Sullivan, 978 F.2d at 47 (“[0]ne of the requisites for obtaining a writ of mandamus is that the plaintiff have exhausted all other adequate remedies.”). Accordingly, the court declines the Secretary’s invitation to engage in a “drive-by jurisdictional ruling[ ],” Steel Co. v. Citizens for a Better Environment, 523 U.S. at 91, 118 S.Ct. 1003. In any event, as discussed above, although plaintiffs have not exhausted the Medicare Act’s internal administrative appeals procedure, sufficient grounds exist to waive such exhaustion. See Mercer v. Birchman, 700 F.2d 828 (2d Cir.1983) (applying same waiver of exhaustion analysis as that applied in determining waiver of 405(g)); Ellis v. Blum, 643 F.2d 68 (2d Cir.1981) (same); Ciccone v. Apfel, 38 F.Supp.2d 224 (E.D.N.Y.1999) (assuming sub silentio that because Second Circuit has held that section 405(h) does not preclude mandamus, no need to exhaust). Accordingly, this court has subject matter jurisdiction to hear plaintiffs’ claim that they are entitled to mandamus relief because the Secretary has violated a clear non-discretionary regulatory mandate. C. STANDARD OF REVIEW Summary judgment is appropriate when the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). When ruling on a summary judgment motion, the court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). “This is true even [where] the court [is] presented with cross-motions for summary judgment; each movant has the burden of presenting evidence to support its motion that would allow the district court, if appropriate, to direct a verdict in its favor.” Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988). Thus, “[w]hen faced with cross-motions for summary judgment, a district court is not required to grant judgment as a matter of law for one side or the other. Rather, the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993) (internal quotation and citation omitted). D. DO UGS’s PRACTICES VIOLATE THE MEDICARE REGULATIONS? Plaintiffs argue that UGS’s handling of their requests for initial determinations and decisions on requests for reconsideration violate the Medicare regulations in several ways. Specifically, plaintiffs argue that, whenever a provider fails to file a claim, they receive no notice of initial determination from UGS. Plaintiffs further argue that the explanation for a decision on a request for initial determination contained in the MSN form, which UGS issues as a notice of initial determination, is not “state[d] in detail” as required by 42 C.F.R. § 405.702. Plaintiffs also challenge UGS’s practice of not sending a copy of the MSN to a beneficiary’s representative. Finally, plaintiffs assert that the Secretary has failed to ensure that UGS issues timely and accurate decisions on requests for initial determinations and for reconsideration. Plaintiffs’ claims thus focus on whether the Secretary, through UGS, has failed to follow the Medicare regulations. The court must, therefore, determine whether the Secretary’s challenged actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), incorporated by 42 U.S.C. § 1395oo(f)(l), as noted in Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). In so doing, the court must, of course, “give substantial deference to an agency’s interpretation of its own regulations.” Thomas Jefferson University, 512 U.S. at 512, 114 S.Ct. 2381; see also Barn-hart, 122 S.Ct. at 1269. The court’s “task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency’s interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. In other words [the court] must defer to the Secretary’s interpretation unless an alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulations’s promulgation.” Thomas Jefferson University, 512 U.S. at 512, 114 S.Ct. 2381 (internal quotations omitted). An agency’s interpretation of its own regulations that conflicts with a prior interpretation is, however, “‘entitled to considerably less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)). 1. UGS improperly fails to issue a notice of initial determination on a benefíciary’s request for determination when no claim has been fíled by the HHA. Plaintiffs argue that, in certain circumstances, a beneficiary never receives a notice of initial determination from UGS as required by the Medicare regulations. Specifically, plaintiffs assert that, if the beneficiary files a request for a determination with UGS, but the HHA fails to submit a claim for coverage, UGS does not issue a notice of initial determination. Similarly, if the beneficiary submits a request for an initial determination, but the HHA submits a late, incomplete, or otherwise improper claim, UGS simply rejects the HHA’s claim, deletes it from the system, and does not issue a notice of initial determination to the beneficiary. As a result of UGS procedures, plaintiffs assert, the beneficiary is left in a procedural no-man’s land because he or she has no notice of initial determination from which to seek further review of the claim for coverage. The beneficiary is also left without documentation with which to insist that the HHA reimburse the beneficiary for the cost of the home health care services because the HHA has violated its statutory duty to submit the requested claims information. At oral argument, counsel for the Secretary confirmed in response to a direct question from the court, that “if a claim is not made by a provider, [then] there is nothing that shows up on the MSN .. .there is no notice given to an individual or to a representative or to anyone ... that they need to try to do anything to challenge” the determination. (Trans. Oral Arg. at 67.) The Secretary further admits that UGS does not accept reconsideration determinations when a claim is deemed rejected by UGS at the initial determination stage. Appendix to Def Opp, Tab 1, ¶ 9. Thus, it is undisputed that UGS does not issue a notice of initial determination when the provider fails to submit a claim, or submits an inaccurate, untimely or otherwise improper claim, and that the lack of notice effectively precludes further administrative review of the beneficiary’s request. There can be no serious dispute that the Medicare regulations contemplate that the Secretary will provide a notice of initial determination not only in response to proper claims filed by providers, but also m response to requests for initial determinations filed by beneficiaries. Specifically, 42 C.F.R. § 405.702 provides, in pertinent part, that “[a]fter a request for payment ... is filed with the intermediary by or on behalf of the individual who received ... home health services, and the intermediary has ascertained whether the items and services furnished are covered ... and where appropriate, ascertained and made payment of amounts due or has ascertained that no payments were due, the individual will be notified in writing of the initial determination in his case.” (emphasis added). That section further provides that “[tjhese notices shall be mailed to the individual and the provider of services at their last known addresses and shall state in detail the basis for the determination. Such written notices shall also inform the individual and the provider of services of their right to reconsideration of the determination if they are dissatisfied with the determination.” Id. (emphasis added). The regulations nowhere contemplate, as a prerequisite to issuance of a notice, the timely submission of a proper, complete claim. Indeed, the regulations’ very definition of what constitutes an “initial determination” includes a response to a request for an initial determination from a beneficiary, not solely a response to a claim filed by a HHA. 42 C.F.R. § 405.704(b) (“An initial determination with respect to an individual includes any determination made on the basis of a request for payment by or on behalf of the individual under part A of Medicare, including a determination with respect to: ... [a]ny ... issues having a present or potential effect on the amount of benefits to be paid under part A of Medicare .... ”); see also 42 C.F.R. § 424.32(b) (including in the “prescribed forms for claims” “CMS-1490S— Request for Medicare payment. (For use by a patient to request payment for medical expenses.)”). In short, the plain language of the regulations requires a notice of initial determination be sent in response to a beneficiary’s request for determination, irrespective of whether a timely and complete claim has been filed by the provider. The Secretary correctly notes that, if no claim is filed by the HHA, UGS may be unable to make a determination whether the home health care services are covered. See, e.g., 42 C.F.R. § 424.5(5) (“Claim for payment. The provider, supplier, or beneficiary, as appropriate, must file a claim that includes or makes reference to a request for payment, in accordance with Subpart C of this part.”); 42 C.F.R. § 424.30 (“Claims must be filed in all cases except when services are furnished on a prepaid capitation basis by a health maintenance organization (HMO), a competitive medical plan (CMP), or a health care prepayment plan (HCPP).”). There can be little doubt that, absent information from the HHA concerning the services provided, a substantive determination of whether benefits under the Medicare Act and regulations are appropriate cannot be made. See 42 C.F.R. § 424.5(6) (“The provider, supplier, or beneficiary, as appropriate, must furnish to the intermediary or carrier sufficient information to determine whether payment is due and the amount of payment.”). Indeed, as the Secretary recently acknowledge to a court in this District, “[t]he only way that a Medicare home health beneficiary can obtain an official Medicare determination with respect to [an] HHA’s decision of non-coverage is through the submission of a demand bill.” Healey v. Shalala, No. 3:98CV418 (DJS), 2000 WL 303439, 68 Soc. Sec. Rep. Ser. 212 (D.Conn., Feb. 11, 2000). A “demand bill is [thus] the key to the administrative process and thence, if necessary, to judicial review under 42 U.S.C. § 405(g).” Id. It simply does not follow, however, that if UGS can not make a substantive benefits determination for lack of sufficient claim information from the HHA, that UGS therefore can not and/or need not send the beneficiary a notice of initial determination. As discussed above, the regulations make no such distinction. Rather, a beneficiary is quite plain and simply entitled to a notice of initial determination. Moreover, the lack of a determination going to the merits of a request does not mean that the notice of initial determination would be a dead letter. To the contrary, a notice of initial determination is essential to a beneficiary even when a request is rejected for incomplete or late-filed claims information. Absent a notice of initial determination, a beneficiary is left without any right to appeal the determination. As the Secretary has acknowledged, an initial determination “must be made before any appeals rights on that claim can be afforded.” HCFA Program Safeguard Statement of Contractor Work § 7F “Appeals Process for Claim Determinations” at www.hcfa.gov. Indeed, the notice of initial determination is the vehicle by which beneficiaries are “inform[ed] ... of their right to reconsideration of the determination if they are dissatisfied with the determination.” 42 C.F.R. § 405.702. Furthermore, the initial determination serves as documentation with which the beneficiary can seek reimbursement from a provider that has failed in its statutory obligation to provide prompt proper claims information to the RHHI in support of a demand bill. This is evidenced by the fact that other RHHIs, including AHS, the RHHI for the region encompassing Connecticut, include statements of liability in initial determinations when providers commit errors in submitting the claim. Thus, the fact that a substantive determination on the merits of a beneficiary’s request has not been rendered does mean there would be nothing for the beneficiary to appeal. For example, if UGS informed the beneficiary, in a notice of initial determination, that the beneficiary’s request was denied because either no claim information or incomplete or late claim information was filed by the HHA, the beneficiary could seek reconsideration (and, if necessary, further administrative and judicial review) arguing that the claim information was in fact timely provided. Absent a notice of initial determination a beneficiary would have no administrative remedy to correct the improper rejection of a request due to claimed late or incomplete claims information. Similarly, the beneficiary can use the notice of initial determination to demand reimbursement from the HHA because it failed to file a timely and proper claim. In short, plaintiffs correctly • aver that UGS’s current procedure for handling requests for determinations where the HHA has either failed to file a claim, or has filed an incomplete or late claim, violates the clear language of the Medicare regulations. Although the court would ordinarily defer to the Secretary’s imposition of the additional requirement that a timely and complete claim be filed before issuance of a notice of initial determination, such deference “is unnecessary and inappropriate” because the Secretary’s “interpretation is not only inconsistent with the language of the [Medicare] statute and its purpose, but also in defiance of common sense.” New York State Dept. of Social Services v. Bowen, 846 F.2d 129, 134 (2d Cir.1988) (internal citation omitted). Accordingly, plaintiffs are entitled to summary judgment on their claim that the Secretary’s failure to issue a notice of initial determination violates the Medicare regulations. 2. The explanation for the initial determination contained in the MSN is not “state[dj in detail” as required by 42 C.F.R. § 405.702 Plaintiffs next contend that the form of notice of initial determination that UGS sends to beneficiaries, the MSN, does not comport with the regulations’ requirement that notices of initial determination “state in detail the basis for the determination.” 42 C.F.R. § 405.702. Although the regulations do not elaborate on the requirement that the notice “state in detail the basis for the determination,” a common sense reading of the relevant statutes and regulations indicates that the notice must, at a minimum, contain sufficient information for the beneficiary to file a proper request for reconsideration. Specifically, the very next sentence of the regulation requires that the “notices ... inform the individual and the provider of services of their right to reconsideration of the determination if they are dissatisfied with the determination.” Id. Furthermore, 42 U.S.C. § 1395h(j) mandates that provider agreements “require that, with respect to a claim for home health services ... that is denied,” the HHA will “furnish the provider and the individual with respect to whom the claim is made with a written explanation of the denial and of the statutory or regulatory basis for the denial .... ” Finally, the Secretary requires that a request for reconsideration specifically refer to an initial determination. In HCFA transmittal AB-00-122 (Dec. 7, 2000), the Secretary stated the following: For Part A appeals, the Medicare regulation at 42 C.F.R. 405.710 states that a party that is dissatisfied with the initial determination may request a reconsideration of such determination. It is clear that the request for reconsideration must be tied to a specific, identifiable initial determination. However, it is not sufficient to simply identify a beneficiary, or a certain time period, for example. The appeal must not only identify the initial determination with which the party is dissatisfied, but must also meet the requirements for the contents of an appeal request below. ‡ ‡ ‡ ‡ ‡ ‡ Medicaid State agencies or the party authorized to act on behalf of the Medicaid State agency are responsible for submitting documentation, if any, that supports the contention that the initial determination was incorrect under Medicare coverage and payment policies. (Pi’s App. to Rule 9(c)2 Stmt., Attachment 3 at p. 3.) It is undisputed that the MSN is part of the provider claims processing system, and therefore is designed to furnish information summarizing all the claims processed by the intermediary during the prior month, both inpatient and outpatient, and a record of services received and the status of any deductibles. Although there is no theoretical problem with the Secretary using the MSN as both a summary of processed claims and a notice of initial determination, in its current form the MSN falls short of providing sufficient information to' constitute a proper notice of initial determination. First and foremost, it is undisputed that the MSN does not provide any information concerning a request for determination when the provider has failed to file a timely or complete claim. As discussed in the immediately preceding section of this ruling, however, the Medicare regulations require that a notice of initial determination be sent not only in response to timely and complete claims filed by a provider, but rather also in response to a beneficiary’s request for initial determination. The MSN is plainly insufficient in this regard because a beneficiary will have no notice of initial determination from which it may seek further review. In addition, the explanation for a benefit denial contained in the MSN does not refer to the regulatory section that served as the basis for the denial. The statutes, however, clearly contemplate such a reference. See 42 U.S.C. § 1395h(j). Moreover, UGS provided reference to the regulations relied upon in reaching a denial determination in the form notice it utilized prior to the MSN. Without the required notice of the regulatory section upon which UGS relied in denying a claim, a beneficiary cannot formulate a meaningful argument in response. Not all of plaintiffs’ challenges to the MSN, however, are well founded. Specifically, plaintiffs incorrectly argue that the MSN is deficient because it refers to a range of dates rather than the specific date on which a particular service was performed. Plaintiffs rely on eleven cases in which ALJs have determined that UGS, by issuing a decision that fails to disclose a basis for denial, has failed to issue a valid initial determination that could be reconsidered or appealed to an ALJ. It is apparent, however, that in those eleven cases CMA relied upon the electronic data previously provided CMA by UGS, rather than the MSN, as the notice of initial determination. Both the former notice and the MSN contain ranges of dates of services. Under the plain language of the MSN, a beneficiary need only fill out the “appeals” portion of the form and circle the specific items with which he or she disagrees. Thus although the MSN does not list specific dates of services, the services are sufficiently identifiable to permit the beneficiary to seek review. Finally, plaintiffs complain that the MSN does not contain explicit notice that a claim is not covered. Rather, an inference must be drawn from the fact that an amount appears in the “non-covered charges” column of the form. It would certainly be easier for a beneficiary to determine which services are covered, and which are not, if explicit notice of non-coverage were given. That is not, however, the issue. The pertinent question is whether the MSN states in detail the basis for adverse determinations, as required by the regulations. The MSN clearly accomplishes this by referencing the reader to the “notes” section, in which a narrative description of the denial appears. The fact that the beneficiary must take an inferential step to assess the scope of coverage afforded, although not ideal, does not render the MSN deficient. The MSN fails in some very important ways to “state in detail the basis of the determination” as required by the Medicare regulations. Thus, to the extent plaintiffs’ motion for summary judgment attacks the MSN as failing to comply with the regulatory requirement to “state in detail the basis of the determination,” the motion is granted. 3. UGS does not, as required by the regulations, send a copy of the notice of initial determination to the beneñciary’s representative. Plaintiffs also argue that UGS violates the Medicare regulations by failing to send a copy of the MSN to the beneficiary’s representative, in most cases CMA. Instead UGS sends CMA various electronic data and spread sheets. The Secretary denies that the regulations require it to provide a copy of the MSN to a beneficiary’s representative and argues that it would be a practical impossibility to do so. The court concludes that, although the regulations are less than clear on the issue, the better reading is that they require a notice of initial determination be sent to a beneficiary’s representative. Ordinarily, of course, the court would “give substantial deference to an agency’s interpretation of its own regulations.” Thomas Jefferson University, 512 U.S. at 512, 114 S.Ct. 2381. The Secretary’s interpretation of the regulations concerning whether a copy of the notice of initial determination must be sent to a beneficiary’s representative is not, however, entitled to this high level of deference. Specifically, it is well settled that an agency’s interpretation of its own regulations that conflicts with a prior interpretation is “ ‘entitled to considerably less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. at 446 n. 30, 107 S.Ct. 1207 (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)). Moreover, deference is not accorded “to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice, because [t]he deliberateness of such positions, if not indeed their authoritativeness, is suspect.” Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (quotation and citation omitted). Here, the Secretary’s position concerning whether notice of an initial determination must be sent to a representative is not only a current litigation position unsupported by more formal agency pronouncement, but is an inconsistent litigation position as well. Specifically, in its Answer to Paragraph 27 of Amended Complaint, the Secretary admitted that “written notice of the individual determination must also be sent to an individual’s representative. 42 C.F.R. § 405.701(c) and 20 C.F.R. § 404.1715(a).” At no time has the Secretary moved to amend his Answer. Furthermore, despite being pressed at oral argument, counsel for the Secretary was unable to point to any agency rule, regulation or practice indicating that the Secretary’s official position, outside the current litigation, is that representatives are not entitled to a copy of the notice of initial determination. In fact, the only agency policy brought to the court’s attention reflects just the opposite. In a February 1994 HCFA Program memorandum, No. AB-94-1, the Secretary took the position that “Section 404.1715 of Title 20 of the Code of Federal Regulations (CFR), applied to Part A claims pursuant to 42 CFR 405.701(c), and 405.872 of title 42 of the CFR state that representatives are entitled to copies of all notices on actions for which they are a representative. The appointed representative, in addition to the beneficiary, is entitled to a copy of the EOMB, Medicare Part B Notice and NOU.” Medicare/Medicaid Guide (CCH) ¶ 42,087 (1994). Accordingly, the court will afford no deference to the Secretary’s inconsistent litigation position that the regulations do not require notice of an initial determination to be sent to a beneficiary’s representative. P