Saint Francis Memorial Hospital et al v. Leavitt

Filing 29

ORDER APPROVING STIPULATION TO STAY ACTION; ORDER DIRECTING PARTIES TO FILE JOINT STATUS REPORT. The parties are directed to file a joint status report no later than July 10, 2009. Signed by Judge Maxine M. Chesney on December 11, 2008. (mmclc1, COURT STAFF) (Filed on 12/11/2008)

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JOSEPH P. RUSSONIELLO (CABN 44332) United States Attorney JOANN M. SWANSON (CABN 88143) Chief, Civil Division JULIE A. ARBUCKLE (CABN 193425) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: [phone] Fax: [phone] E-mail: [e-mail] U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES OFFICE OF THE GENERAL COUNSEL JONATHAN C. BRUMER 330 Independence Ave., S.W., Room 5344 Washington, D.C. 20201 Telephone: [phone] Attorneys for Federal Defendant LAW OFFICES OF GARY E. GLEICHER GARY E. GLEICHER 433 N. Camden Dr., Ste. 730 Beverly Hills, CA. 90210 Telephone: [phone] Fax: [phone] HONIGMAN MILLER SCHWARTZ AND COHN LLP KENNETH R. MARCUS 660 Woodward Avenue 2290 First National Building Detroit, MI 48226-3506 Telephone: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ST. FRANCIS MEMORIAL HOSPITAL ) AND FRANKLIN BENEVOLENT ) CORPORATION f/k/a DAVIES MEDICAL ) CENTER, ) ) Plaintiffs, ) ) v. ) ) MICHAEL O. LEAVITT, Secretary, ) U.S. Department of Health and Human ) Services, ) ) Defendant. ) ) No. CV 08-1440 MMC STIPULATION AND [PROPOSED] ORDER TO STAY ACTION

AND ORDER DIRECTING PARTIES TO FILE JOINT STATUS REPORT

STIPULATION AND [PROPOSED] ORDER TO STAY ACTION - Case No. CV 08-1440 MMC

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Defendant, Michael O. Leavitt, the Secretary of Health and Human Services ("the Secretary") and Plaintiffs, St. Francis Memorial Hospital and Franklin Benevolent Corporation f/k/a Davies Medical Center (the "Hospitals"), by and through their undersigned counsel, respectfully stipulate that this Court enter an order staying the proceedings in the abovecaptioned action pending the final administrative and judicial disposition of the case of Provider Reimbursement Review Board ("PRRB") Group Appeal No. 98-1376G (the "Group Appeal"). In support of this stipulation, the parties state as follows: 1. The parties previously informed the Court that they were discussing the possibility of staying this case as well as another case, Glendale Memorial Hosp. and Health Ctr. v. Leavitt, CV08-1747 (MMM) (AGRx) (C.D. Cal.), pending the final administrative and judicial disposition of the Group Appeal. By a "final judicial disposition," the parties mean to refer to a final non-appealable Court decision. 2. Counsel for the Hospitals have been informed that the Group Appeal is set for a record hearing. Although it is impossible to predict with any certainty when the decision of the PRRB will be issued, the parties are hopeful that the decision may be issued in the reasonably near future. 3. In this action, Plaintiffs challenge three jurisdictional decisions by the PRRB. See Complaint ¶¶ 50, 58, 66, and Exhs. 1-3 thereto. The sole legal issue before the Court is whether the PRRB's decisions declining jurisdiction over Plaintiffs' claims for certain fiscal years at issue in the Group Appeal were arbitrary, capricious, contrary to the law, or an abuse of discretion. 4. In anticipation of the PRRB's eventually issuing a decision in the Group Appeal, to allow for the possibility that the final administrative and judicial disposition of the Group Appeal may obviate the need for further proceedings in this action, and in the interest of conserving the resources of the Court and the parties, the Hospitals and the Secretary believe that proceedings in the instant case should be stayed, pending the final administrative and judicial disposition of the Group Appeal. 5. In the event the Providers do not prevail upon the final administrative and judicial

STIPULATION AND [PROPOSED] ORDER TO STAY ACTION - Case No. CV 08-1440 MMC

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disposition of the Group Appeal, the Hospitals will dismiss the instant case with prejudice within thirty days following the date of such final disposition. 6. In the event the Providers prevail upon the final administrative and judicial disposition of the Group Appeal, the parties will jointly move the Court to reinstate the instant case for proceedings and a determination regarding the PRRB's decision denying the Hospitals the right to participate in the Group Appeal within thirty days following such final disposition. 7. In the event the Hospitals first prevail upon the final administrative and judicial disposition of the Group Appeal, and then prevail in the final disposition in the instant case (including any postjudgment proceedings and appeals), the Secretary will pay to the Hospitals the underlying Medicare payment to which they would have been entitled had they participated in the Group Appeal, without the necessity for a remand to the Secretary for further proceedings and a decision on the merits, within ninety days following the date of such final disposition. 8. In the event the PRRB does not issue a decision in the Group Appeal within six months following the date of the Court's order staying the instant case the Hospitals will have the right at any time thereafter to move the Court to reinstate the instant case, which motion the Secretary will not oppose. In the event that the Secretary settles the Group Appeal while this action is stayed, the Hospitals will have the right to move the Court to reinstate the instant case, which motion the Secretary will not oppose. 9. This request is made in good faith and not for purposes of delay.

ACCORDINGLY, THE PARTIES hereby stipulate and agree that: 1. Proceedings in the instant case be stayed, pending the final administrative and judicial disposition of the Group Appeal; and 2. In the event the Providers do not prevail upon the final administrative and judicial disposition of the Group Appeal, the Hospitals will dismiss the instant case with prejudice within thirty days following the date of such final disposition; and 3. In the event the Providers prevail upon the final administrative and judicial disposition of the Group Appeal, the parties will jointly move the Court to reinstate the instant case for

STIPULATION AND [PROPOSED] ORDER TO STAY ACTION - Case No. CV 08-1440 MMC

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proceedings and a final determination regarding the PRRB's decision denying the Hospitals the right to participate in the Group Appeal within thirty days following such final disposition; and 4. In the event the Hospitals first prevail upon the final administrative and judicial disposition of the Group Appeal, and then prevail in the final disposition in the instant case (including any postjudgment proceedings and appeals), the Secretary will then pay to the Hospitals the underlying Medicare payment to which they would be entitled had they participated in the Group Appeal, without necessity for a remand to the Secretary for further proceedings and a decision on the merits, within ninety days following the date of such final disposition; and 5. In the event the PRRB does not issue a decision in the Group Appeal within six months following the date of the Court's order staying the instant case, the Hospitals will have the right at any time thereafter to move the Court to reinstate the instant case, which motion the Secretary will not oppose. In the event that the Secretary settles the Group Appeal while this action is stayed, the Hospitals will have the right to move the Court to reinstate the instant case, which motion the Secretary will not oppose. 6. In the event the Court denies this Stipulation to Stay Action, the parties agree that each of the deadlines in the current briefing schedule will be extended by 14 days from the date of the Court's order, and that upon receipt of any such order, they will promptly submit a Stipulation and [Proposed] Order to the Court reflecting this agreement The filer of this document, counsel for Federal Defendant, attests that concurrence in the /// /// /// /// /// /// /// ///

STIPULATION AND [PROPOSED] ORDER TO STAY ACTION - Case No. CV 08-1440 MMC

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/// filing of this document has been obtained from each of the other signatories.

Respectfully submitted, LAW OFFICES OF GARY E. GLEICHER _______/S/______________ Gary E. Gleicher 433 N. Camden Dr., Ste. 730 Beverly Hills, CA. 90210 Tel.: [phone] Fax: [phone] JOSEPH P. RUSSONIELLO United States Attorney ________/S/_____________ Julie A. Arbuckle Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 Tel.: [phone] Fax: [phone]

_______/S/______________ Kenneth R. Marcus Honigman Miller Schwartz and Cohn LLP 660 Woodward Avenue 2290 First National Building Detroit, MI 48226-3506 Tel.: [phone]

_______/S/______________ Jonathan C. Brumer U.S. Department of Health and Human Services Office of the General Counsel Centers for Medicare and Medicaid Services Division 330 Independence Ave., S.W., Room 5344 Washington, D.C. 20201 Tel.: [phone] Attorneys for Federal Defendant Dated: December 10, 2008

Attorneys for Plaintiffs Dated: December 10, 2008

PURSUANT TO STIPULATION, IT IS SO ORDERED. Further, the parties are directed to file a joint status report no later than July 10, 2009.

Dated:_De____ber_11,_2008 __ cem __ __ ____

__________________________ MAXINE M. CHESNEY United States District Judge

STIPULATION AND [PROPOSED] ORDER TO STAY ACTION - Case No. CV 08-1440 MMC