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CHILDREN'S HOSP. OF BUFFALO v. APFEL

March 29, 2000

THE CHILDREN'S HOSPITAL OF BUFFALO, PLAINTIFF,
V.
KENNETH S. APFEL, COMMISSIONER OF HEALTH AND HUMAN SERVICES,[FN1] AND THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Skretny, District Judge.

ORDER

1. On February 13, 1998, Hon. Richard J. Arcara, United States District Judge, referred this case, including jurisdiction to hear and report upon dispositive motions, to Hon. Leslie G. Foschio, United States Magistrate Judge.

2. On July 10, 1998, Defendant filed a motion for judgment on the pleadings.

3. On April 7, 1999, Magistrate Judge Foschio issued a Report and Recommendation concluding that defendants' motion should be granted.

4. On April 20, 1999, Magistrate Judge Foschio, upon agreement by the parties, deemed the April 7, 1999 Report and Recommendation as withdrawn and allowed the parties to submit additional pleadings.

5. On May 21, 1999, Plaintiff filed a cross-motion for summary judgment.

6. On July 6, 1999, Magistrate Judge Foschio issued a Report and Recommendation concluding that defendants' motion for judgment on the pleadings should be granted; that Plaintiffs cross-motion for summary judgment should be denied; and that this case should be dismissed.

7. On July 20, 1999, Plaintiff filed an objection to Magistrate Judge Foschio's July 6, 1999 Report and Recommendation.

8. On September 21, 1999, Judge Arcara issued an Order transferring this case to this Court.

9. On February 7, 2000, this Court heard oral argument on Plaintiffs objections and directed the parties to return on March 7, 2000 for decision.

10. On March 7, 2000, this Court issued a statement from the bench in which it, for the reasons stated on the record, denied Plaintiffs objections, accepted Magistrate Judge Foschio's July 6, 1999 Report and Recommendation, granted Defendant's motion for motion for judgment on the pleadings, and denied Plaintiffs cross-motion for summary judgment.

IT HEREBY IS ORDERED, that this Court ACCEPTS, for the reasons stated on the record, Magistrate Judge Foschio's July 6, 1999 Report and Recommendation;

FURTHER, that Defendant's motion for judgment on the pleadings is GRANTED;

FURTHER, that Plaintiffs cross-motion for summary judgment is DENIED.

FURTHER, the Clerk of the Court is directed to take the necessary steps to close this case.

SO ORDERED.

REPORT and RECOMMENDATION

JURISDICTION

This matter was referred to the undersigned on February 13, 1998 by the Hon. Richard J. Arcara for report and recommendation. It is before the court on Defendants' motion for judgment on the pleadings filed July 10, 1998 (Docket Item No. 8), and Plaintiffs cross-motion for summary judgment filed May 21, 1999 (Docket Item No. 13).

BACKGROUND

Plaintiff, The Children's Hospital of Buffalo, commenced this action pursuant to 42 U.S.C. § 405(g), 1395rr(g)(3) and 405.1877(a), and 5 U.SC. §§ 702 and 704, seeking judicial review of a decision by the Health Care Finance Administration's Administrator which rejected Plaintiffs request for an exception rate for Medicare reimbursement as untimely. Defendants filed an answer to the Complaint on February 10, 1998.

By order dated March 11, 1998, Defendants were given until July 10, 1998 to move for judgment on the pleadings and Plaintiff was to respond to such motion within two months of such filing. On July 10, 1998 Defendants filed a motion for judgment on the pleadings and a Memorandum of Law in support.

Pursuant to an order dated April 20, 1999, Plaintiff filed on May 21, 1999 a cross-motion for summary judgment, a statement of undisputed facts, and a memorandum of law. On June 9, 1999, Defendants filed a reply memorandum of law in further support of its motion for judgment on the pleadings. Oral argument was deemed unnecessary.

Based on the following, Defendants' motion for judgment on the pleadings should be GRANTED and Plaintiffs cross-motion ...


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