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No. 3:08-CV-1148 (AHN) (D.Conn.), filed July 31, 2008

Issue: Whether the use of a "stability" test to terminate home health coverage on the ground that the patient no longer needs skilled nursing care violates the Medicare statute and regulations.

Relief Sought: Declaratory judgment, and temporary and permanent injunctive relief on behalf of an individual Medicare beneficiary.

Updated: November 12, 2014

Status: The day after the complaint was filed, a temporary restraining order (TRO) hearing was held, and the Court granted the motion. Coverage for home health care was restored pursuant to the TRO, and has been repeatedly continued, most recently through early February 2009. The plaintiff has also moved for a preliminary injunction, and the government has moved to dismiss, both of which motions have been essentially tabled while coverage has been continued.

After the judge hearing the case resigned, it was reassigned to a new judge. At her request, the parties agreed to take the pending motions off calendar.  Ms. Prendergast died in December 2010.

In June 2011, plaintiff successfully moved to have the case restored to the court’s active docket, and then substituted the administrator of the estate as the plaintiff. On plaintiff's motion, the court dismissed the complaint as moot.  Plaintiff then filed a motion for attorneys' fees under the Equal Access to Justice Act.  On October 26, 2011, the magistrate judge to whom the motion was referred rejected all five of the defendant's reasons for denying fees altogether, but reduced the amount of fees requested by over 50%.  2011 WL 5078240.  Each party then filed an Objection to the magistrate judge's recommended ruling.  Both Objections were fully briefed, and the fee motion was submitted to the district judge after oral argument on May 14, 2012.

On March 29, 2013, the district judge rejected the government’s five reasons for denying fees. 2013 WL 1336838.  She also largely agreed with plaintiff’s objections to the magistrate judge’s determination of the amount of the fee award, deducting only 15% for work done in 2008 and awarding fees for all the other work done.

Because of several calculation errors or oversights in the decision, plaintiff filed a motion for reconsideration, which was granted on May 2, 2013, thereby increasing the award by several thousand dollars.

On the Secretary’s appeal, the Court of Appeals reversed on September 17, 2014, holding that plaintiff was not the prevailing party because the TRO did not alter the status quo (a conclusion based on the court’s understanding of the term "status quo").  768 F.3d 116.  Although rehearings are very rarely granted by the Second Circuit, plaintiffs filed a petition for rehearing or rehearing en banc, primarily on the ground that the decision conflicts with previous decisions of the same court.

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