Encompass Health Rehabilitation Hospital of Desert Canyon, LLC v. Becerra

] ||E. Leif Reid NV Bar No. 5750 || LEWIs ROCA ROTHGERBER CHRISTIE LLP One East Liberty Street, Suite 300 |!Reno, NV 89501 Tel: (775) 823-2900 [email protected] ||Adam L. Bird, (pro hac vice) D.C. Bar No. 1005485 ||} CALHOUN BHELLA & SECHREST LLP 2121 Wisconsin Avenue N.W., Suite 200 || Washington, D.C. 20007 Tel: (202) 804-6031 ||[email protected] || Attorneys for Plaintiffs Encompass Health Rehabilitation Hospital of Desert Canyon, LLC; ||Encompass Health Rehabilitation Hospital of Las Vegas, LLC; and Encompass Health Rehabilitation }|\Hospital of Henderson, LLC UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA || 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 || ENCOMPASS HEALTH REHABILITATION |7oQ FILE AMENDED COMPLAINT HOSPITAL OF HENDERSON, LLC, Plaintiffs, v. XAVIER BECERRA, SECRETARY OF THE || UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.

23 Plaintiffs, Encompass Health Rehabilitation Hospital of Desert Canyon, LLC, |} Encompass Health Rehabilitation Hospital of Las Vegas, LLC, and Encompass Health || Rehabilitation Hospital of Henderson, LLC (collectively “Encompass Health”), by and || through their undersigned counsel, hereby seek leave to file an amended complaint to || incorporate additional final agency decisions rendered by Defendant since Plaintiffs filed 121445000.1 || their original complaint. The Defendant, through counsel, has indicated that he does not || oppose the relief sought herein.

3 BACKGROUND 4 1. This is an action for judicial review of 189 final agency decisions involving || various Medicare reimbursement disputes issued by the Medicare Appeals Council | (“Council”) on behalf of Xavier Becerra in his official capacity as the Secretary of the U.S. || Department of Health and Human Services (“the Secretary”). Encompass Health filed a || consolidated Complaint for Judicial Review on November 11, 2022.

9 2. Encompass Health served the Secretary with the consolidated complaint on |] or about January 9, 2023.

11 3. On March 10, 2023, the Secretary filed an Unopposed Motion to Stay the || Case until July 10, 2023 to allow sufficient time for Council staff to prepare the underlying || 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 || 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 |] U.S.C. § 1395ff(b). As of the date of this submission, Encompass Health has received || approximately 44 such determinations.

20 DISCUSSION 21 5. Plaintiffs wish to exercise their appeal rights as to the Council’s most recent || unfavorable decisions. The bases for those decisions are substantially similar to the agency || determinations included with Encompass Health’s original complaint.

24 6. Instead of filing a new complaint and subsequent motion to consolidate that || case with the instant matter, Encompass Health proposes to file an amended complaint that || incorporates the Council’s most recent decisions.

27 7. Federal Civil Rule 15 governs the process for amending pleadings. There is || a strong public policy in favor of permitting amendment, and the Ninth Circuit has made 121445000.1 -2- |} clear that Rule 15(a) should be applied with “extreme liberality.” Underwood v. O’Reilly || 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 || following factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) || futility of the amendments; and (5) whether the plaintiff has previously amended the || complaint. Jd.

7 9. None of the foregoing factors is present here. There is no bad faith because || Encompass Health is simply exercising its statutory appeal rights. The Secretary’s counsel || has not informed Plaintiffs that addition of the new agency decisions to the pending matter || will result in undue delay. The amended pleading would not be futile, and Encompass |} Health has not previously amended its complaint.

12 10. Absent a showing of undue prejudice or a strong showing as to any of the |] 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 |} between mid-April and mid-May, which was more than 21 days after Encompass Health || served the Secretary.

18 12. | Encompass Health similarly cannot wait until the Secretary files his Answer || after July 10, 2023 to amend pursuant to Rule 15(a)(1)(B) because that would be more than || 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 || 60 days of receiving such decision).

23 13. Granting Encompass Health’s motion would promote efficiency and judicial || economy because it would eliminate the need for Plaintiffs to file a second complaint, serve || the Secretary, and then file a motion to consolidate the new case with the instant matter.

26 || /// | /// | /// 121445000.1 -3- 1 CONCLUSION 2 There is no evidence of prejudice, delay, bad faith, or futility. Encompass Health has || not previously been given an opportunity to amend its complaint, and the Secretary does not || oppose the relief sought herein. Therefore, the presumption in favor of leave to amend has || not been overcome, and the Court should grant Encompass Health’s motion and provide || 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.

8 LEWIS ROCA 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 [email protected] 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 [email protected] 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 IT IS SO ORDERED: 24 gm Lea wre bat, UNITED STATES DISTRICT COURT JUDGE ne 13, 202 DATED: _ “Une 19: 2028 26 TTT 121445000.1 -4- 1 CERTIFICATE OF SERVICE 2 Pursuant to Federal Rule of Civil Procedure 5(b), I certify that I am an employee o || Lewis Roca Rothgerber Christie LLP, and that on the 12th day of June, 2023, I caused th || foregoing UNOPPOSED MOTION FOR LEAVE TO FILE AMENDED COMPLAIN || to be served by electronically filing the foregoing with the CM/ECF electronic filing system || 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. Hanson II 10 Assistant United States Attorney Las Vegas Boulevard, South, Suite 1100 Las Vegas, Nevada 89101 /s/ Melani Kim Rudkin 14 Employee of Lewis Roca Rothgerber Christie LLP Z 15 g

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