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MHH Defeats DOH’s Motion To Dismiss Article 78 Proceeding

MHH was retained by EverCare Choice Inc. (“EverCare”), a managed long term care plan, to challenge the decision by the New York State Department of Health (“DOH”) to freeze the risk score it uses to determine the partial capitation and nursing home transition rates (“Rates”) charged to its members.  Led by Peter Zlotnick, Ted Berkowitz, Stephen Ginsberg, and Alexander Litt, MHH filed an Article 78 Proceeding alleging that the DOH’s determination of EverCare’s Rates was unconstitutional; determined in an arbitrary and capricious manner; and therefore should be declared invalid and appropriately readjusted resulting in a payment of more than $20 million by DOH to EverCare.  In response, DOH filed a motion to dismiss, arguing that EverCare’s Article 78 proceeding was not timely filed within the four-month statute of limitations and/or the Court lacks jurisdiction over EverCare’s monetary claims.  In a well-reasoned and thorough decision, the Court denied DOH’s motion to dismiss and held that the parties’ subsequent communications to adjust the Rates after the DOH issued its decision determining the Rates tolled the the four-month statute of limitations.  The Court has directed DOH to file an Answer and for the parties to appear for oral argument on EverCare’s Petition.  This was a tremendous victory for MHH and its client, EverCare.