Free Motion for Summary Judgment - District Court of Delaware - Delaware

Case 1 :07-cv—00829-SLR Document 18 Filed 06/13/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
DELAWARE HEALTH *
CORPORATION,

Plaintiff,

v. * CIV. NO. 07-829-SLR
MICHAEL O. LEAVITT,

Defendant.
MOTION FOR SUMMARY JUDGMENT
FILED BY PLAINTIFF DELAWARE HEALTH CORPORATION
Now comes Delaware Health Corporation, doing business as Harbor Healthcare &
Rehabilitation Center ("Harbor"), Plaintifi by its undersigned counsel, and moves, pursuant to
Federal Rule of Civil Procedure 56, for summary judgment, on the grounds that there is no
genuine dispute as to any material issue of fact and Harbor is entitled to a reversal of the ruling
of the Secretary of the Department of Health and Human Services (collectively "DHHS"), as a
matter of law, and for reasons state:
l. This case arises out of an appeal from the decision of DHHS reversing a ruling by
the Medicare Provider Reimbursement Revision Board ("PRRB").
2. The parties, with the approval of the Court, have agreed to file cross motions for
summary judgment to resolve this administrative appeal.
3. The grounds for the motion are as follows:
3.1 The Intermediary (the Medicare Contractor which performs audits upon
submissions for reimbursement by Medicare providers) failed to provide timely
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Case 1:07-cv—00829-SLR Document 18 Filed 06/13/2008 Page 2 of 2
notice of intent to reopen within the time frame provided by the applicable
regulations and DHHS manuals.
3.2 DHHS’s reversal and afiirmance of the PRRB ruling was arbitrary, capricious and
lacked evidentiary support.
3.3 And for the reasons set forth in the accompanying Opening Brief of Plaintiff
Delaware Health Corporation in Support of its Motion for Summary Judgment,
which is incorporated by reference herein.
Respectfully submitted by:
SMITH, KATZENSTEIN & FURLOW LLP
Robert J. Katzengein (H) No. 378)
800 Delaware Avenue, 10th Floor
P.O. Box 410
Wilmington, DE 19899-0410
302.652.8400
302.652.8405 (facsimile)
Attorneys for Plaintiff
Delaware Health Corporation, doing business as
Harbor Healthcare & Rehabilitation Center
Of Counsel:
Barry Bach
Henry E. Schwartz
Hodes Pessin & Katz, P.A.
Henry E. Schwartz LLC
901 Dulaney Valley Road, Suite 400
Towson, MD 21204
410.938.8800
4l0.832.5640 (facsimile)
Dated: June 13, 2008
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Case 1:07-cv-00829-SLR Document 18-2 Filed 06/13/2008 Page 1 of 1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of June, 2008, a copy of Motion for
Summary Judgment filed by Plaintiff Delaware Health Corporation was served in the manner
indicated on the following:
BY E-FILE
Lesley Frieder Wolf, Esquire
Assistant United States Attomey
District of Delaware
1007 N. Orange Street
P.O. Box 2046
Wilmington, DE 19899
BY FIRST CLASS MAIL
Brett Bierer, Esquire
Mailstop C2-05-23
Office of General Counsel
U.S. Dpt. Of Health and Human Services
7500 Security Boulevard
Baltimore, MD 21244
Robert J. katzengtein (ID No. 378)
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