decision unsupported by precedent and thus an abuse of the
Secretary's discretion. The court therefore finds that the
Secretary's decision in reversing the PRRB's decision was
neither arbitrary, capricious, an abuse of discretion, unlawful,
nor unsupported by substantial evidence and, as such,
Defendants' request for judgment on the pleadings should be
GRANTED and Plaintiffs cross-motion for summary judgment should
Based on the foregoing, Defendant's motion for judgment on the
pleadings (Docket Item No. 8) should be GRANTED and the case
should be DISMISSED; Plaintiffs cross-motion for summary
judgment (Docket Item No. 13) should be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with
the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be
filed with the Clerk of the Court within ten (10) days of
service of this Report and Recommendation in accordance with the
above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules
of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court's Order. Thomas v. Am, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health and
Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v.
Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to
the attorneys for the Plaintiff and the Defendants.
*fn2 The fact statement is taken from the pleadings and motion
papers filed in this action.
*fn3 End Stage Renal Disease is defined as "that stage of renal
[kidney] impairment that appears irreversible and permanent, and
requires a regular course of dialysis or kidney transplantation
to maintain life." 42 C.F.R. § 405.2102, 406.13(b).
*fn4 "Medicare Part A" provides reimbursement for hospital
medical services. "Medicare Part B" provides reimbursement for
non-hospital medical services, including physician services.
*fn5 "R" references are to the Administrative Record filed as
the factual basis for this action.
*fn6 According to Children's Hospital, in the Wawak Memorandum
dated February 22, 1991, ESRD treatment providers were advised
that a new 180-day exception cycle would open on March 1, 1991
and close on August 27, 1991. However, in a subsequent
Memorandum by Wawak dated July 30, 1991, Wawak calculated a
separate 180-day period regarding PRRB appeals and which began
on February 28, 1991 as also concluding on August 27, 1991.
Letter dated September 4, 1991 by Thomas M. Honan, Executive
Vice President, Finance, Children's Hospital, Exhibit F to
*fn7 Pursuant to 42 U.S.C. § 1395oo(f)(A), The Secretary is
authorized to reverse, affirm or modify a decision by the PRRB.
The HCFA Administrator, pursuant to its delegated responsibility
to administer the Medicare program on behalf of the Secretary,
42 C.F.R. § 401.101(a), was thus authorized to reverse the
*fn8 Effective September 15, 1997, 42 C.F.R. § 413.170(f)(4)
was substantially amended and redesignated as
42 C.F.R. § 413.180. 62 Fed. Reg. 43,657 (August 15, 1997). A copy of the
earlier relevant version of § 413.170(f)(4) is in the record.