AGG Attorneys Obtain Temporary Restraining Order Protecting Skilled Nursing Facility’s Provider Agreements Pending Pre-Termination Administrative Hearing

On Friday, August 1, 2014, Alan C. Horowitz and Jerad Rissler obtained a Temporary Restraining Order (“TRO”) prohibiting the termination of a skilled nursing facility’s Medicare and Medicaid provider agreements, which had been scheduled for Sunday August 3, 2014. The TRO will remain in effect until August 15, 2014 (unless extended by the Court for good cause) and will prevent the termination of the facility’s Medicare and Medicaid Provider agreements pending a pre-termination administrative hearing.

The threatened termination was premised on a survey of the facility concluded on July 11, 2014. Upon receiving notice of the alleged deficiencies, the facility immediately took corrective action, including hiring highly-qualified consultants who have served as federal monitors overseeing long-term care facilities on multiple occasions. These independent consultants analyzed and assessed the sufficiency of the corrective measures taken in connection with the deficiencies alleged in the survey and determined that the facility was in substantial compliance with program requirements. Despite the independent review indicating that the facility was in substantial compliance, the facility’s requests for a revisit survey were denied, meaning that the scheduled termination would go forward on Sunday August 3, 2014, without any agency determination whether the facility had reached substantial compliance with program requirements prior to that date.

On Thursday, July 31, 2014, AGG filed an administrative appeal with the Departmental Appeals Board challenging the underlying basis for the threatened termination. On the morning of Friday, August 1, 2014, AGG filed a Verified Complaint seeking injunctive relief that would prevent termination of the provider agreement pending completion of the administrative appeals process. On the afternoon of Friday August 1, 2014, the Court granted a TRO, finding that the facility had met the requirements for that relief. The Court found “a reasonable likelihood that [the plaintiff] will succeed on the merits of its claims against Defendants.” (TRO at 2.) The Court found that the plaintiff “has shown a meaningful risk of irreparable harm in the absence of a [TRO].” (Id.) Additionally, the Court found that “[t]he public interest will be served by the issuance of a [TRO].” (Id.)

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