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June 23, 1978


The opinion of the court was delivered by: DUFFY



 Plaintiffs Albert Schwartzberg and Sigmund Lefkowitz, owners and operators of Kings Harbor Care Center ("Kings Care") have moved pursuant to Rule 9(m) of the General Rules for the Southern District of New York and Fed. R. Civ. P. 59(e) to reargue the motions disposed of by my memorandum decision of June 7, 1978. The principal ground for plaintiffs' motion is their assertion that I misapplied the balancing test set forth in Case v. Weinberger, 523 F.2d 602 (2d Cir. 1975). Specifically they urge that I failed to consider the interest of plaintiffs' patients, gave inadequate weight to plaintiffs' interest in having a due process hearing at a meaningful time and gave undue consideration to the determination of the Secretary of the United States Department of Health, Education and Welfare (HEW) that the alleged deficiencies at Kings Care pose a threat to the health and safety of plaintiffs' patients.

 At the outset I note that plaintiffs are simply wrong in their assertion that I failed to consider the patients' interest when I granted defendants' motion for summary judgment. These aged and infirm patients, who are entitled to a high level of care and treatment, were, in fact, paramount in my considerations when I determined that HEW's interest in their health and safety outweighed the plaintiffs' interest in continuing to receive moneys from the Medicare and Medicaid programs.

 Apparently it is the Secretary's determination that patients in Kings Care are not receiving the care to which they are entitled. This decision was reviewed and reconfirmed following a reinspection by two allegedly impartial investigators. As I indicated in my earlier opinion, plaintiffs have been aware for quite some time of the charged deficiencies and have been given ample opportunity to correct them. Additionally, since the review afforded plaintiffs in the instant case was very similar to that sanctioned in Case, I believe I am bound by the Second Circuit's ruling therein.

 Plaintiffs have suggested that Case is distinguishable from the situation at bar in that the serious nature of the alleged deficiencies was uncontested by Mrs. Case. A careful reading of the facts of Case reveals, however, that while all parties agreed that some uncorrectible Life Safety Code violations existed, Mrs. Case continuously urged that these deficiencies "were not serious enough to endanger the health and safety of the patients." Id. at 609. Yet, notwithstanding this dispute, the Court found the informal review session sufficient to comply with due process. Balancing the interests of the parties, the Court determined that the government's interest in patient safety outweighed the anticipated damage to Mrs. Case. Similarly, in the case at bar, I find that the same interest in patient safety overrides the possibility that plaintiffs' nursing home will cease operations.

 Plaintiffs also argue that unnecessary transfer of patients from Kings Care might result in "transfer trauma" or even the death of many patients. This speculation must be considered in light of the deficiency of care which HEW has found at Kings Care. Since HEW is aware of the phenomenon of "transfer trauma", *fn1" / it undoubtedly believes that the danger to health and safety imposed upon patients remaining at Kings Care outweighs the possible trauma attendant upon leaving it.

 Neither Hathaway v. Mathews, 546 F.2d 227 (7th Cir. 1976) nor Klein v. Mathews, 430 F. Supp. 1005 (D.N.J. 1977) compels a result different than that reached in my earlier opinion. In Hathaway, the state joined the nursing home owner in opposing HEW's determination, while no such dispute between the state and federal government is presented in the case at bar. More significantly, plaintiffs herein have at all relevant times been aware of HEW's charges and were accorded informal reconsideration. In Hathaway, by contrast, no such relief was available to the nursing home's owner.

 Klein v. Mathews is also distinguishable since that was an action brought by patients protesting their own transfer. In the instant case, although the patients did have a representative who spoke on their behalf on one occasion, *fn2" / he took no position on the seriousness or veracity of HEW's charges. Moreover, the patients have not attempted to join in this action, nor have they filed amicus briefs or supporting affidavits.

 Accordingly, upon reconsideration, I adhere to my earlier decision.




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