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Blossom South, LLC v. Sebelius

United States District Court, W.D. New York

December 17, 2013

BLOSSOM SOUTH, LLC, Plaintiff,
v.
KATHLEEN SEBELIUS, as Secretary of the United States Department of Health and Human Services, MARILYN TAVENNER, as Administrator of the Centers for Medicare and Medicaid Services, NIRAV SHAH, M.D., as Commissioner of Health of the State of New York, Defendants

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[Copyrighted Material Omitted]

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For Blossom South, LLC, Plaintiff: Howard S. Fensterman, LEAD ATTORNEY, PRO HAC VICE, Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, Lake Success, NY; Sarah Carol Lichtenstein, PRO HAC VICE, Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, Lake Success, NY; Sharon P. Stiller, Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, Rochester, NY.

For Kathleen Sebelius, as Secretary of the United States Department of Health and Human Services, Marilyn Tavenner, as Administrator of the Centers for Medicare and Medicaid Services, Defendants: Joel J. Lerner, LEAD ATTORNEY, U.S. Attorney's Office, WDNY, Buffalo, NY; Mary Pat Fleming, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.

For Nira V Shah, MD, as Commissioner of the Health of the State of New York, Defendant: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.

OPINION

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DAVID G. LARIMER, United States District Judge.

DECISION AND ORDER

Plaintiff Blossom South, LLC (" Blossom South" ) commenced this action against Kathleen Sebelius, as Secretary of the United States Department of Health and Human Services (" Secretary" ), Marilyn Tavenner, as Administrator of the Centers for Medicare & Medicaid Services (" CMS" ), and Nirav Shah, M.D., as Commissioner of Health of the State of New York. Plaintiff asserts claims under the Social Security Act, 42 U.S.C. § 301, et seq., the Medicare Act, 42 U.S.C. § 1395 et seq., and other statutes, seeking to enjoin defendants from terminating Blossom South's Medicare and Medicaid provider agreement without a pretermination hearing and other administrative review procedures.

On August 13, 2013, this Court issued a Decision and Order, 2013 WL 4679275, familiarity with which is assumed, granting plaintiff's motion for a preliminary injunction and enjoining defendants from terminating plaintiff's provider agreement or taking steps toward that end, pending further order of this Court. On November 4, 2013, the Court heard oral argument on defendants' motions to dismiss the complaint (Dkt. #23, #24). The following constitutes the Court's decision on those motions.[1]

INTRODUCTION

According to the complaint, the factual allegations of which are accepted as true, Blossom South is a limited liability company that operates a skilled nursing facility on Monroe Avenue in Rochester, New York. Blossom South participates in Medicare, which is a federally funded and administered health insurance program for the eligible elderly and disabled established by title XVIII of the Social Security Act. Under Medicare Part A, qualified providers of health services can receive reimbursement from the government for their provision of health services to Medicare-qualified patients. See Palomar Medical Center v. Sebelius, 693 F.3d 1151, 1155 (9th Cir. 2012).[2]

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To qualify for payments under the program, a facility must meet certain requirements under federal law. See Golden Living Center-Frankfort v. Secretary Of Health And Human Services, 656 F.3d 421, 424 (6th Cir. 2011). Compliance with those requirements is typically assessed by ...


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