Encompass Health Rehabilitation Hospital of Desert Canyon, LLC v. Becerra
Opinion
] ||E. Leif Reid NV Bar No. 5750 2 || LEWIs ROCA ROTHGERBER CHRISTIE LLP One East Liberty Street, Suite 300 3 |!Reno, NV 89501 Tel: (775) 823-2900 4 lreid@lewisroca.com 5 ||Adam L. Bird, (pro hac vice) D.C. Bar No. 1005485 6 ||} CALHOUN BHELLA & SECHREST LLP 2121 Wisconsin Avenue N.W., Suite 200 7 || Washington, D.C. 20007 Tel: (202) 804-6031 8 ||abird@cbsattorneys.com 9 || Attorneys for Plaintiffs Encompass Health Rehabilitation Hospital of Desert Canyon, LLC; 10 ||Encompass Health Rehabilitation Hospital of Las Vegas, LLC; and Encompass Health Rehabilitation 11 }|\Hospital of Henderson, LLC 12 UNITED STATES DISTRICT COURT 14 || ENCOMPASS HEALTH REHABILITATION | Case No.: 2:22-cv-01912-JAD-BNW > HOSPITAL OF DESERT CANYON, LLC; = 15 || ENCOMPASS HEALTH REHABILITATION HOSPITAL OF LAS VEGAS, LLC; and UNOPPOSED MOTION FOR LEAVE 16 || ENCOMPASS HEALTH REHABILITATION |7oQ FILE AMENDED COMPLAINT HOSPITAL OF HENDERSON, LLC, 17 Plaintiffs, 18 v. 19 XAVIER BECERRA, SECRETARY OF THE 20 || UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, 21 Defendants. 22
23 Plaintiffs, Encompass Health Rehabilitation Hospital of Desert Canyon, LLC,
24 |} Encompass Health Rehabilitation Hospital of Las Vegas, LLC, and Encompass Health 25 || Rehabilitation Hospital of Henderson, LLC (collectively “Encompass Health”), by and 26 || through their undersigned counsel, hereby seek leave to file an amended complaint to 27 || incorporate additional final agency decisions rendered by Defendant since Plaintiffs filed 28 121445000.1
1 || their original complaint. The Defendant, through counsel, has indicated that he does not 2 || oppose the relief sought herein. 4 1. This is an action for judicial review of 189 final agency decisions involving 5 || various Medicare reimbursement disputes issued by the Medicare Appeals Council 6 | (“Council”) on behalf of Xavier Becerra in his official capacity as the Secretary of the U.S. 7 || Department of Health and Human Services (“the Secretary”). Encompass Health filed a 8 || consolidated Complaint for Judicial Review on November 11, 2022. 9 2. Encompass Health served the Secretary with the consolidated complaint on 10 |] or about January 9, 2023. 11 3. On March 10, 2023, the Secretary filed an Unopposed Motion to Stay the 12 || Case until July 10, 2023 to allow sufficient time for Council staff to prepare the underlying 13 || administrative records. See 42 U.S.C. § 405(g) (incorporated by reference into the Medicare 2 14 || statute at 42 U.S.C. § 1395ff(b)). 2 15 4. Since Plaintiffs filed their complaint in this matter, the Council has continued 16 || to issue adverse reimbursement determinations as to Encompass Health’s pending appeals. 17 || Each of those determinations carries federal district court appeal rights pursuant to 42 18 |] U.S.C. § 1395ff(b). As of the date of this submission, Encompass Health has received 19 || approximately 44 such determinations. 21 5. Plaintiffs wish to exercise their appeal rights as to the Council’s most recent 22 || unfavorable decisions. The bases for those decisions are substantially similar to the agency 23 || determinations included with Encompass Health’s original complaint. 24 6. Instead of filing a new complaint and subsequent motion to consolidate that 25 || case with the instant matter, Encompass Health proposes to file an amended complaint that 26 || incorporates the Council’s most recent decisions. 27 7. Federal Civil Rule 15 governs the process for amending pleadings. There is 28 || a strong public policy in favor of permitting amendment, and the Ninth Circuit has made 121445000.1 -2-
1 |} clear that Rule 15(a) should be applied with “extreme liberality.” Underwood v. O’Reilly 2 || Auto Enter., LLC, 342 F.R.D. 338, 342 (D. Nev. 2022) (quotation omitted). 3 8. When weighing a motion for leave to amend, courts typically consider the 4 || following factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) 5 || futility of the amendments; and (5) whether the plaintiff has previously amended the 6 || complaint. Jd. 7 9. None of the foregoing factors is present here. There is no bad faith because 8 || Encompass Health is simply exercising its statutory appeal rights. The Secretary’s counsel 9 || has not informed Plaintiffs that addition of the new agency decisions to the pending matter 10 || will result in undue delay. The amended pleading would not be futile, and Encompass 11 |} Health has not previously amended its complaint. 12 10. Absent a showing of undue prejudice or a strong showing as to any of the 13 |] remaining factors, there is a presumption that leave to amend should be granted. /d. 2 14 11. | Encompass Health was unable to amend the existing complaint as a matter 2 15 |] of right under Rule 15(a)(1)(A) because the Council’s most recent decisions were issued 16 |} between mid-April and mid-May, which was more than 21 days after Encompass Health 17 || served the Secretary. 18 12. | Encompass Health similarly cannot wait until the Secretary files his Answer 19 || after July 10, 2023 to amend pursuant to Rule 15(a)(1)(B) because that would be more than 20 || 60 days after Plaintiffs received the Council’s most recent decisions. See 42 C.F.R. § 21 || 405.1130 (a party must file a complaint in federal court contesting a Council decision within 22 || 60 days of receiving such decision). 23 13. Granting Encompass Health’s motion would promote efficiency and judicial 24 || economy because it would eliminate the need for Plaintiffs to file a second complaint, serve 25 || the Secretary, and then file a motion to consolidate the new case with the instant matter. 26 || /// 27 | /// 28 | /// 121445000.1 -3-
2 There is no evidence of prejudice, delay, bad faith, or futility. Encompass Health has 3 || not previously been given an opportunity to amend its complaint, and the Secretary does not 4 || oppose the relief sought herein. Therefore, the presumption in favor of leave to amend has 5 || not been overcome, and the Court should grant Encompass Health’s motion and provide 6 || Plaintiffs with 10 days from the date of the Court’s order to file an amended complaint. 7 Dated this 12" day of June, 2023. 9 ROTHGERBER CHRISTIE LLP
10 By: /s/_E. Leif Reid E. Leif Reid 11 NV Bar No. 5750 One East Liberty Street, Suite 300 12 Reno, NV 89501 Tel: (775) 823-2900 13 lreid@lewisroca.com
14 Adam L. Bird, (pro hac vice) > D.C. Bar No. 1005485 = 15 CALHOUN BHELLA & SECHREST LLP 2 2121 Wisconsin Avenue N.W., Suite 200 16 Washington, D.C. 20007 Tel: (202) 804-6031 17 abird@cbsattorneys.com 18 Attorneys for Plaintiffs Encompass Health Rehabilitation Hospital of Desert Canyon, 19 LLC; Encompass Health Rehabilitation Hospital of Las Vegas, LLC; and 20 Encompass Health Rehabilitation Hospital of Henderson, LLC 22 IT IS SO ORDERED: 23 24 gm Lea wre bat, UNITED STATES DISTRICT COURT JUDGE 25 ne 13, 202 DATED: _ “Une 19: 2028 26 TTT 27 28 121445000.1 -4-
2 Pursuant to Federal Rule of Civil Procedure 5(b), I certify that I am an employee o 3 || Lewis Roca Rothgerber Christie LLP, and that on the 12th day of June, 2023, I caused th 4 || foregoing UNOPPOSED MOTION FOR LEAVE TO FILE AMENDED COMPLAIN 5 || to be served by electronically filing the foregoing with the CM/ECF electronic filing system 6 || which will send notice of electronic filing to: 7 Jason M. Frierson 8 United States Attorney, District of Nevada Summer A. Johnson 9 Assistant United States Attorney Stephen R.
Free access — add to your briefcase to read the full text and ask questions with AI
Encompass Health Rehabilitation Hospital of Desert Canyon, LLC v. Becerra (Encompass Health Rehabilitation Hospital of Desert Canyon, LLC v. Becerra) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.