Hospice Savannah, Inc. v. Burwell et al
Filing
6
TEMPORARY RESTRAINING ORDER granting 3 Motion for TRO. This TRO shall remain in effect until the earlier of 14 days or until the Clerk's determination of whether it should be converted into a preliminary injunction. The hearing for the preliminary injunction is 9/30/15 at 10:00 am before the Honorable Brian K. Epps, 1st floor Courtroom located at 125 Bull Street, Savannah, GA 31401. Signed by Judge J. Randal Hall on 9/21/15. (cmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
HOSPICE SAVANNAH, INC.,
a Georgia Not for Profit Corporation,
Plaintiff,
v.
Case No. 4:15-cv-00253-JRH-GRS
SYLVIA MATHEWS BURWELL,
Secretary of the United States Department
of Health and Human Services,
TEMPORARY RESTRAINING
ORDER
and
ANDREW SLAVITT,
Acting Administrator for the Centers for
Medicare & Medicaid Services,
and
PALMETTO GBA,
Defendants.
Upon consideration of the Verified Complaint of Hospice Savannah, Inc. ("Hospice
Savannah" or "Plaintiff) as well as Plaintiffs Motion for Temporary Restraining Order, all
supporting declarations, and supporting Memorandum of Law, the Court finds that Plaintiff has
demonstrated (1) a substantial likelihood of success on the merits; (2) that the moving party will
suffer irreparable harm unless the injunction issues; (3) the threatened harm to the movant
outweighs the potential damage the proposed injunction may cause the opposing party; and (4) if
issued, the injunction would not be adverse to the public interest. Four Seasons Hotels &
Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003). "Of these four
requisites, the first factor, establishing a substantial likelihood of success on the merits, is most
important. . . ." ABC Charters, Inc. v. Bronson, 591 F. Supp. 2d 1272, 1294 (S.D. Fla. 2008).
Specifically, Plaintiff has shown that:
Hospice Savannah is a not-for-profit organization providing hospice service to
terminally-ill patients and their families throughout Chatham, Bryan, Effingham, Liberty, and
Long Counties.
The Centers for Medicare and Medicaid Services ("CMS") through its contractual agent
AdvanceMed, is seeking to recoup $8.6 million in alleged overpayments from Hospice Savannah
based on (1) review of a sample of 100 claims for 95 beneficiaries for which there is an alleged
overpayment of $152,000.00; and (2) a questionable extrapolation across Hospice Savannah's
universe of patient claims that Hospice Savannah owes CMS $8.6 million.
Hospice Savannah has appealed AdvanceMed's allegations through two initial levels of
administrative review.
The next statutory level of administrative appeal that is available to Hospice Savannah
involves an administrative law judge ("ALJ") of the federal Office of Medicare Hearings and
Appeals ("OMHA").
By statute, the ALJ hearing is to occur within 90 days, but an
administrative backlog at OMHA will likely preclude Hospice Savannah from receiving its
hearing before an ALJ for as long as three to five years. Despite this backlog, Defendants intend
to invoke self-help to recoup 100% of Hospice Savannah's current and future Medicare
payments (approximately 80% of Hospice Savannah's total revenues), even though the services
underlying those payments have never been challenged.
Hospice Savannah has shown a likelihood of success onthe merits.
If not enjoined, Hospice Savannah will lose 80% of its total revenues and be irreparably
harmed by being forced to close and being unable to provide ongoing care to current hospice
patients who by definition are terminally ill and disabled.
Moreover, while the risk of not granting immediate injunctive relief to Hospice Savannah
and its patients is great, there is little or no corollary risk to Defendants. Defendants do not allege
fraud and do not allege any facts to suggest that Hospice Savannah is diverting or secreting
assets or will do so while it pursues its administrative appeals. Thus, Defendants, at worst, will
only be deferred in their ability to pursue collection efforts against Plaintiff.
Finally, the public has an interest in seeing that terminally-ill patients continue to have
access to Hospice Savannah's services.
As required by Fed. R. Civ. P. 65(b)(1)(B), counsel for Plaintiff has certified in writing
efforts made to give notice to Defendants, including e-mailing copies of the complaint and notice
of intent to seek a restraining order to representatives of CMS, Palmetto GBA, and to the United
States Attorney for the Southern District of Georgia.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Motion is GRANTED. Defendants Sylvia
Mathews Burwell, Secretary of the United States Department of Health and Human Services,
and Andrew Slavitt, Acting Administrator for the Centers for Medicare & Medicaid Services,
and Palmetto GBA and any persons in active concert or participation with any of them, are
ENJOINED from withholding, recouping, offsetting, or otherwise failing to pay Hospice
Savannah any current Medicare receivables, including approximately $589,306.04 scheduled for
payment on September 22-26, 2015.
Generally, before a court may issue a preliminary injunction, a bond must be posted. See
BellSouth v. MCI Metro Access, 425 F.3d 964, 971 (11th Cir. 2005). It is well established,
however, that "the amount of security required by [Rule 65] is a matter within the discretion of
the trial court ... and the court may elect to require no security at all." See id. (citation and
quotation omitted); see also Baldree v. Cargill, Inc., 758 F. Supp. 704 (M.D. Fla. 1990), affd,
925 F.2d 1474 (11th Cir. 1991) (district court has discretion to waive bond requirement imposed
by Rule 65(c)).
The Court waives the bond requirement for Hospice Savannah because the
Defendants will not suffer any harm in deferring their collection efforts.
IT IS FURTHER ORDERED that this Temporary Restraining Order shall remain in
effect until the earlier of fourteen (14) days from the date of this Order, or until the Court's
determination of whether this Temporary Restraining Order should be converted into a
preliminary injunction, the hearing for which is scheduled for Wednesday, September 30, 2015,
at 10:00 a.m. before The Honorable Brian K. Epps, United States Magistrate Judge in First Floor
District Courtroom of the United States District Courthouse located at 125 Bull Street, Savannah,
Georgia 31401.
Signed this *\' day of September, 2015, at JO! S^ a.m.
Honorable J. Randal Jftall, Judge
United Slates Distri/t Court
Southepi District of Georgia
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