Espinosa v. Shah et al, No. 1:2009cv04103 - Document 130 (S.D.N.Y. 2014)

Court Description: OPINION & ORDER re: 115 FIRST MOTION to Approve proposed final order . filed by Jeffrey Espinosa, 110 MOTION to Approve Defendants' Proposed Order . filed by Nirav R. Shah, M.D., Kristin M. Proud. For the reasons di scussed above, Plaintiff's motion to approve its proposed order [dkt. no. 115] is DENIED. Defendants' motion to approve its proposed order [dkt. no. 110] is GRANTED in part, with the alteration to the notice provision described above. AC CORDINGLY, IT IS HEREBY ORDERED THAT: 1. Beginning no later than the effective date of this Order, Defendants shall provide final administrative action in compliance with the timeliness provisions set forth in 42 C.F.R. § 431.244(f) (1) for fair hearings requested by Class Members. 2. In calculating whether final administrative action was provided in compliance with paragraph one of this Order, the calculation of days from the date of the request for a fair hearing to the date of the DAFH s hall exclude any days of an adjournment of a fair hearing requested by the Class Member or of any adjournment not requested by the Class Member which was granted by OAH for the benefit of all fair hearing participants, such as for severe weather cond itions, other conditions potentially affecting the health or safety of fair hearing participants, or other circumstances rendering the fair hearings operations inoperable. Fair hearings requested by members of classes certified in Shakhnes and Varsh avsky, shall be excluded from paragraph one of this Order. 3. For fair hearing requests made on or after the first day of the first calendar month after the entry of this Order ("reporting month"), Defendants shall provide to Class Counsel on a monthly basis, by the twentieth day of the succeeding month, a report of all DAFHs for Class Members issued during the reporting month for a period of twenty-four reporting months. This report shall contain at a minimum: (a) the identifying numb er associated with each fair hearing request; (b) the date the fair hearing was requested; (c) the date(s) fair hearing(s) were held; (d) the date of issuance of the DAFH; and (e) the number of days excluding the adjournments described in paragraph t wo above from the date of the fair hearing request to the date of issuance of the DAFH.4. If Class Counsel believes that Defendants have failed to comply with this Order, Class Counsel shall notify Defendants' counsel in writing of the nature and specifics of the alleged failure to comply with this Order and shall specify the monitoring reports, if any, upon which such belief is based, at least thirty business days before any motion is made for enforcement of this Order. Unless otherw ise resolved, counsel for the parties shall meet within thirty business days following notice to Defendants' counsel to attempt in good faith to arrive at a resolution of the claims. If no such resolution is reached within thirty business day s following notice to Defendants' counsel, the class shall have leave tomove this Court for an order for all appropriate relief. In any such motion, the Court will first look to relevant statistics indicating Defendants' compliance with th is Order. 5. Class Counsel will not file a motion to enforce this Order with respect to individual untimely administrative action, unless such individual untimely administrative action demonstrates systemic noncompliance with the terms of this Order. 6. Plaintiff is entitled to reasonable attorney's fees, costs and disbursements as provided by 42 U.S.C. § 1988. The amount of attorney's fees, costs, and disbursements is reserved for later determination upon application to the Court within ninety days after the entry on the docket sheet of a "So Ordered" copy of this Order or within a later date as the parties may stipulate to in writing. 7. The Court will retain jurisdiction for a period of twenty-four months from the month of entry of this Order, or such later time as agreed to by the parties or ordered by this Court, for purposes of enforcing this order. The parties may make application to amend this Order within six months of the effective date of this Order. (Signed by Judge Loretta A. Preska on 12/4/2014) (lmb)