Saint Francis Memorial Hospital et al v. Leavitt

Filing 46

ORDER RE: JOINT STATUS REPORT. The parties' joint request that the stay be extended through June 4, 2012 is granted, and the parties are directed to file a Joint Status Report no later than June 4, 2012. Signed by Judge Maxine M. Chesney on May 16, 2012. (mmclc1, COURT STAFF) (Filed on 5/16/2012)

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MELINDA HAAG (CABN 132612)
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]
LAW OFFICES OF GARY E. GLEICHER
GARY E. GLEICHER
433 N. Camden Dr., Ste. 515
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]
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.
)
)
KATHLEEN SEBELIUS, Secretary,
)
U.S. Department of Health and Human
)
Services,
)
)
Defendant.
)
)

JOINT STATUS REPORT - Case No. CV 08-1440 MMC

No. CV 08-1440 MMC
JOINT STATUS REPORT
AND ORDER THEREON

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The Court’s Order entered on April 9, 2012 (docket entry no. 44) directed the parties to file a

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Joint Status Report no later than May 4, 2012. The parties, by and through their undersigned

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counsel, respectfully submit this Joint Status Report.

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1. In their previous Joint Status Reports, the parties have advised this Court that:

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(a) The Provider Reimbursement Review Board (“PRRB”) had issued its decision dated

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January 26, 2009 in the case of Quality 89-92 Hospital Based SNF, Group Appeal No. 98-1376G

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(the “Group Appeal”). See Docket Entry Nos. 30, 31, 33, 34, 35, 36, 37, 39, 41, 43 (all advising

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this Court of this development).

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(b) In a decision dated March 20, 2009, the Administrator of the Centers for Medicare and

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Medicaid Services reversed the decision of the PRRB. The March 20, 2009 decision of the

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Administrator of the Centers for Medicare and Medicaid Services constituted the final decision

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of the Secretary regarding the Group Appeal. See 42 U.S.C. § 1395oo(f). See Docket Entry Nos.

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31, 33, 34, 35, 36, 37, 39, 41, 43 (advising the Court of this development).

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(c) The hospitals participating in the Group Appeal, which include the Plaintiffs in the

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instant case (but for different fiscal years than in the instant case), filed a Complaint in the United

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States District Court for the District of Columbia on April 6, 2009, as amended on April 9, 2009.

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Glendale Memorial Hospital and Health Center et al. v Sebelius, Case No. 1:09-cv-637 (D.D.C.

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2009) (“Glendale Memorial Hospital”). See Docket Entry Nos. 31, 33, 34, 35, 36, 37, 39, 41, 43

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(advising the Court of this development).

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(d) The parties ultimately settled the Glendale Memorial Hospital District of Columbia case

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and on September 15, 2011, they filed a Stipulation of Settlement and Dismissal which was

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incorporated into an Order the Court entered on October 11, 2011. See Glendale Mem'l Hosp.

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and Health Ctr., et al., v. Sebelius, Case No. 1:09CV00637 (D.D.C. 2009), Docket Entry Nos. 43

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and 44.

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(e) On or about November 15, 2011, the settlement agreement in the Glendale Memorial
Hospital District of Columbia action was fully implemented. See Docket Entry No. 37.

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2. On November 23, 2011 and January 17, 2012, the parties to this action filed Joint Status

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Reports in which they reminded the Court of all of these developments. See Docket Entry Nos.
37 and 39. The parties, however, requested the opportunity to confer further and explore the
JOINT STATUS REPORT - Case No. CV 08-1440 MMC

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possibility of settling this action. Id.

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3. In an order dated January 23, 2012, the Court granted the parties’ request that they be

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given an opportunity to discuss settlement and to thereafter file another Joint Status Report, and

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directed the parties to file a Joint Status Report no later than February 17, 2012. See Docket

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Entry No. 40.

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4. On February 17, 2012, the parties to this action filed a Joint Status Report in which they

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reminded the Court of all of the aforementioned developments, advised the Court of the status of

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their settlement negotiations, and indicated that they “require additional time to continue

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settlement negotiations, and if a settlement is reached, to begin the process of formally

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recommending approval of the proposed settlement.” Accordingly, the parties jointly requested

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that they be given an additional forty-five (45) days, through April 4, 2012 to submit a Joint

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Status Report advising the Court of the status of their settlement negotiations. See Docket Entry

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No. 41.

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5. In an order dated February 23, 2012, the Court granted the parties’ request that they be

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given an opportunity to discuss settlement and to thereafter file another Joint Status Report, and

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directed the parties to file a Joint Status Report no later than April 4, 2012. See Docket Entry

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No. 42.

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6. On April 4, 2012, the parties to this action filed a Joint Status Report in which they

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reminded the Court of all of the aforementioned developments, and advised the Court of the

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following: “Since February 23, 2012, the parties have made significant progress. After engaging

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in settlement negotiations, they agreed to the terms of a proposed settlement, subject to

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agreement between the parties on the principal amount in controversy and subject to final CMS

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approval and approval of the U.S. Department of Justice (“DOJ”). The parties will now work to

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reach agreement on the principal amount in controversy. Agency counsel will also now work

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expeditiously to finalize a formal settlement recommendation memorandum. Once that

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memorandum is completed it will be sent to DOJ for its review and approval or disapproval.”

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7. Accordingly, the parties jointly requested that the stay in this case be extended for an
additional thirty (30) days, through May 4, 2012, and that they be given until that date to submit a

JOINT STATUS REPORT - Case No. CV 08-1440 MMC

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new Joint Status Report to enable the parties to reach agreement on the principal amount in

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controversy and to allow agency counsel to begin work on the settlement recommendation

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memorandum, obtain the remaining necessary internal approvals, and to allow DOJ to begin its

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review the settlement recommendation memorandum for final approval. See Docket Entry No.

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43.

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8. In an order dated April 9, 2012, the Court granted the parties’ request and directed the
parties to file a Joint Status Report no later than May 4, 2012. See Docket Entry No. 44.

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9. Because of the recent (unexpectedly early) birth of his child, the undersigned agency

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counsel, Jonathan Brumer, was out of the office on paternity leave between April 16-April 26,

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2012. Consequently, he was not able to work on this matter during that two week period.

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10. Now that agency counsel is back in the office, he intends to work expeditiously on

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finalizing the settlement recommendation memorandum for this case and obtaining the remaining

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necessary internal approvals. Once that memorandum is completed, it will be sent to DOJ for its

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review and approval or disapproval, and DOJ will endeavor to review the memorandum and

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render a decision on whether or not to approve the recommendation on an expedited basis.

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11. Accordingly, the parties jointly request that the stay in this case be extended for an

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additional thirty (30) days, through June 4, 2012, and that they be given until that date to submit

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a new Joint Status Report concerning their progress, to allow agency counsel to finalize the

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settlement recommendation memorandum, obtain the remaining necessary internal approvals,

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and to allow DOJ to begin its review the settlement recommendation memorandum for final

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approval. If, before June 4, 2012, either party reasonably believes that settlement will not be

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achieved, it shall notify the other party, and within the earlier of five days thereafter or June 4,

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2012, the parties shall file a Joint Status Report advising the Court of that fact and submit a

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proposed case management plan.

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The filer of this document, attests that concurrence in the filing of this document has
been obtained from each of the other signatories.

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JOINT STATUS REPORT - Case No. CV 08-1440 MMC

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Respectfully submitted,

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LAW OFFICES OF GARY E. GLEICHER

MELINDA HAAG
United States Attorney

_/s/______________________
Gary E. Gleicher
433 N. Camden Dr., Ste. 515
Beverly Hills, CA. 90210
Tel.: [phone]
Fax: [phone]

_/s/______________________
Julie A. Arbuckle
Assistant United States Attorney
450 Golden Gate Avenue, 9th Floor
San Francisco, CA 94102
Tel.: [phone]
Fax: [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]

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

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Attorneys for Plaintiffs

Attorneys for Federal Defendant

Dated: May 4, 2012

Dated: May 4, 2012

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ORDER
The parties' joint request that the stay be extended through June 4, 2012 is GRANTED,
and the parties are DIRECTED to file a Joint Status Report no later than June 4, 2012.

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IT IS SO ORDERED.

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Dated: May 16, 2012

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__________________________________
United States District Judge

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JOINT STATUS REPORT - Case No. CV 08-1440 MMC

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