Joshua Hunter’s Law School Writing Project Reveals Potential Constitutional Violation

Public Benefits Specialist Joshua Hunter won honorable mention in the 2024 Rigorous Writing Exercise at Nashville School of Law. Joshua has taken his final steps in law school to graduate in May and plans to sit for the Tennessee Bar Exam later this year. Joshua has taken his final steps in law school to graduate in May and plans to sit for the Tennessee Bar Exam later this year.

The Rigorous Writing Exercise is a project all Nashville School of Law students embark on as a requirement of graduation. Working with a volunteer mentor from the legal community, students research and write a fifteen to twenty-page paper on the topic of their choice.

For Joshua, choosing a topic wasn’t difficult. “Six months before I had the assignment to start planning the paper, I knew what I was going to write about,” he said. “I was going to write about frustrating Medicare-related problems that my clients at Johnson McGinnis deal with every day.”

Joshua spent around 170 hours on the Rigorous Writing Exercise, focusing his paper on various Medicare-related scenarios that represent what he refers to as a “gilded process.” In layman’s terms, a gilded process refers to situations where procedurally, things are promised, but practically, those things don’t exist. Along the way, Joshua uncovered what he believes is a constitutional violation that could result in a class action.

“I've been in and around the Medicare program for over a decade and I've seen these problems happen again and again,” he said. “I knew something was wrong, but I didn’t have a way to put it into words. Now that I've had legal education, I could see that these problems might be a fourth amendment due process violation. Medicare is a protected property interest, CMS’s oversight qualifies as state action, and these problems are depriving Medicare beneficiaries of a protected property interest.”

One situation Joshua examined involved how the Department of Health and Human Services and their agents through Medicare Advantage plans denied beneficiaries due process. He spent the summer of 2023 digging into case law and reference articles and pulling together examples. One such example involved a Medicare beneficiary who was repeatedly denied coverage for a skilled rehab stay. The person appealed, as is her right, and won her appeal. Coverage was again denied. She appealed and won. This cycle continued ten more times! Eventually, the woman’s claim was paid.

“If that's not a gilded process, what is?” Joshua said. “She was getting what I call micro wins that didn’t amount to anything. She was winning appeals on past coverage, but not current coverage moving forward, which made it very difficult for her to focus on healing. That's just one example of many.”

Joshua’s paper also discussed the application of Medicare’s Guaranteed Issue Rights to Medicare beneficiaries under age 65. Guaranteed Issue Rights give Medicare beneficiaries the right to purchase a Medicare supplement policy without medical underwriting, meaning that insurance companies must sell the beneficiary a Medigap policy, cover all pre-existing health conditions, and not charge more for a Medigap policy because of past or present health problems. 

“Guaranteed Issue rights practically don't mean anything if you're under age 65,” Joshua said. “If you're under 65 and you’re eligible for Medicare, you have health problems. The insurance companies know this and charge more for coverage, despite the Guaranteed Issue Rights. It’s another gilded process.”

The third gilded process Joshua covered was the Jimmo Settlement, which clarified Medicare’s longstanding policy that coverage of skilled nursing and skilled therapy services in the Skilled Nursing Facility, Home Health, and Outpatient Therapy settings does not depend on a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care. In simple terms, Jimmo means that a Medicare beneficiary’s condition doesn’t have to keep improving for Medicare to pay for their stay. It’s enough that the patient needs care to maintain their condition or to not get worse.

“The improvement standard never actually existed,” said Joshua. “It never was a thing and people were denied coverage for this made-up standard. We are still fighting that problem.”

One of the unexpected byproducts of this writing project was that Joshua came up with a term for the problems that had no name. His name: Constructive Removal, meaning that something readily available on paper—like Medicare benefits and plan promises—is practically not available to the people who need it.

“I finally have a word for a phenomenon that's been driving me crazy for a decade,” Joshua said. “You have all these different circumstances that are caused by the same underlying problem. Ultimately, Constructive Removal is saying that ‘Medicare, you can't get away with letting the people you contract with do whatever they want. If they work under you, their actions are considered state action and government action for due process.’ The fact that they contract with a government agency means I can tie them into a constitutional violation.”

Joshua hopes to have his paper published in a prominent legal journal, then submit it to a national Medicare advocacy group for further legal action.