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YARETSKY v. BLUM

June 30, 1978

William YARETSKY et al., Plaintiffs, and Mary Foley et al., Plaintiffs-Intervenors,
v.
Barbara BLUM et al., Defendants



The opinion of the court was delivered by: MOTLEY

Memorandum Opinion

This is an action by residents of various health care facilities in New York State. They claim that the transfer procedures among the various levels of health care facilities violate their constitutional right to due process of law. Specifically, plaintiffs allege that as regards transfers to facilities offering lower levels of care, the transfer process lacks adequate criteria, fails to comply with legal requirements and procedural safeguards necessary for plaintiffs' protection and deprives plaintiffs of a meaningful opportunity to contest proposed transfers and reductions in assistance. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343(3) and (4).

 On January 5, 1978 a preliminary injunction was issued granting certain of the relief requested by plaintiff. A class action was certified on January 11, 1978.

 Plaintiffs move for partial summary judgment with respect to a pendent state law issue. They request a declaratory judgment, 28 U.S.C. § 2201, to the effect that certain memoranda issued by the Department of Health are without legal effect. Plaintiffs contend that the memoranda are actually "rules" for the purposes of the New York State Constitution and the New York State Administrative Procedure Act (SAPA). It is not disputed that the defendants have not followed the Constitution's filing requirement for rules or the rulemaking requirements of SAPA. Plaintiffs also request injunctive relief. The motion for a declaratory judgment is granted. The motion for injunctive relief is denied.

 FACTS

 Between January 31, 1977 and February 11, 1977 the New York State Department of Health issued three "Hospital Memoranda" (memoranda) which were designed to assist hospitals, health related facilities (HRF) and skilled nursing facilities (SNF) in determining the appropriate level of care placement for patients in these facilities. Specifically, these memoranda establish a numerical scoring system to be used in conjunction with the pre-existing Long Care Placement Form (DMS-1). The form is a fairly detailed one on which the patient's physical and mental conditions are extensively described. The memoranda assign numerical values to certain problems experienced by the patient. If the total DMS-1 score is 180 or greater, the patient is presumptively entitled to be placed in a Skilled Nursing Facility (SNF). If the score is 60 or greater, the patient is entitled to be placed in a Health Related Facility (HRF) which provides a lower level of care than the SNF. If the score is less than 180 or 60, a doctor's certificate is required for placement in the SNF or HRF.

 Plaintiffs argue that the memoranda are rules under both the New York Constitution and SAPA. Article 4, § 8 of the New York Constitution reads:

 
No rule or regulation made by any state department . . . except such as relates to the organization or internal management of a state department . . . shall be effective until it is filed in the office of the department of state. The legislature shall provide for the speedy publication of such rules and regulations, by appropriate laws.

 SAPA § 102(2) defines "rule". The pertinent portion of the definition and the relevant exceptions are as follows:

 
(a) "Rule" means (i) the whole or part of each agency statement, regulation or code of general applicability that implements or applies law, or prescribes the procedure or practice requirements of any agency, including the amendment, suspension or repeal thereof . . . .
 
(b) Not included within paragraph (a) of this subdivision are:
 
(i) rules concerning the internal management of the agency which do not directly and significantly affect the rights of or procedures or practices available to the public;
 
(iv) forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory;

 Defendants make three arguments in opposition to this motion: (1) that the instant claim is not in the complaint; (2) that this court should abstain from deciding this motion; and (3) that, on the merits, the memoranda are not "rules" since they come within the ...


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