changes in payment methods, not changes in Medicaid eligibility requirements.
III. Consultation with the Medical Care Advisory Committee
Plaintiffs contend that they are entitled to summary judgment because defendants failed to consult with a properly constituted MCAC in violation of 42 C.F.R. § 431.12 and N.Y. Soc. Serv. Law § 365-c before implementing the new eligibility requirements. Plaintiffs contend that my decision in Himes I was based on an incomplete factual record. They now claim that they have discovered matters during discovery which require judgment in their favor. Plaintiffs maintain that the new income disregards were implemented on January 1, 1991, the day the New York State statute containing the challenged amendments became effective. Defendants contend, however, and plaintiffs apparently agree, that MCAC was consulted six weeks prior to publication of the new Regulations in the New York State Register.
42 C.F.R. § 431.12 requires that the MCAC have the "opportunity for participation in policy development." The purpose of the MCAC is to advise the Commissioner of NYSDSS with respect to health and medical care services. N.Y. Soc. Serv. Law § 356-c.2. No where in the federal regulation, or in the state statute which codifies that regulation, is there a requirement that the MCAC be consulted prior to changes in a state statute. The MCAC is an advisory committee to the Commissioner of NYSDSS, not the New York State legislature.
Plaintiffs contention that the MCAC should have been consulted prior to the adoption and implementation of the state statute, seeks to give this advisory committee more power than was delegated to it by 42 C.F.R. § 431.12 or N.Y. Soc. Serv. Law § 365-c.
Plaintiffs rely on Becker v. Toia, 439 F. Supp. 324 (S.D.N.Y. 1977), for the proposition that a MCAC must be consulted prior to the implementation of a statute which affects NYSDSS policy.
In Becker, however, there was no MCAC in existence and there had not been a MCAC for at least three years. The absence of a MCAC is a direct violation of 42 C.F.R. § 431.12 and N.Y. Soc. Serv. Law § 365-c. Such a flagrant violation of a federal regulation and state statute certainly could lead a court to order the drastic remedy imposed in Becker. However, even in Becker, the court did not grant the relief requested by plaintiffs in this action. The Becker court enjoined the implementation of the state statute until a MCAC was constituted and consulted. The statute in question was not repealed or affected in any way and remains in effect today.
In this case, a MCAC was in existence and was consulted prior to the changes in NYSDSS regulations which implemented the new state statute. Becker, is therefore, distinguishable. I decline to require that the Commissioner of NYSDSS consult with a MCAC whenever she approaches the legislature on a policy matter. She is, however, required to consult with a MCAC whenever changes are made in NYSDSS regulations. See Budnicki v. Beal, 450 F. Supp. 546, 556 (E.D. Pa. 1978).
It is undisputed that defendants consulted with the MCAC prior to the implementation of the regulations concerning the income disregards. Defendants have thereby, complied with the requirements of 42 C.F.R. § 431.12 and N.Y. Soc. Serv. Law § 365-c.
Plaintiffs also argue that the MCAC was not properly constituted until June 27, 1991, when a Medicaid recipient was added to the committee. I held in Himes I that even if the Court were to assume that the MCAC was not properly constituted due to the absence of a Medicaid recipient on the Committee, plaintiffs nevertheless were not entitled to an injunction on that ground. Himes I at 272.
This MCAC complied in many respects with the regulation. While an improperly constituted MCAC may be grounds for granting an injunction, I find that it is not sufficient grounds to grant summary judgment. See New York City Health and Hosps. Corp. v. Blum, 708 F.2d 880, 886 (2d Cir. 1983) (Refusing to grant declaratory judgment based solely on the lack of consultation with MCAC); Hospital Ass'n of N.Y., Inc. v. Toia, 438 F. Supp. 866, 875 (S.D.N.Y. 1977) (Calling into question the magnitude of a remedy for violating the MCAC consultation requirement).
In addition, plaintiffs did not contest the makeup of the MCAC before these changes in the eligibility requirements. Although this may be due to lack of knowledge by plaintiffs, the appropriate remedy is a compliance proceeding, not summary judgment. Cf. Hospital Ass'n of N.Y., Inc. v. Toia, 473 F. Supp. 917, 940 (S.D.N.Y. 1979).
Several circuits have recognized that the question of relief for a violation of the MCAC consultation and composition requirement is a difficult one. See Mississippi Hosp. Ass'n, Inc. v. Heckler, 701 F.2d 511, 523 (5th Cir. 1983) ("We are reluctant to read more into a regulatory requirement than is clearly expressed"); and Burgess v. Affleck, 683 F.2d 596, 600, n.6 (1st Cir. 1982) ("The status quo ante cannot be restored; the most that can be ordered is that the state agency reconsider its decision after consultation with the committee"). No amount of additional consultation can cause a reconsideration of the regulations promulgated by NYSDSS here because NYSDSS was responding to changes in the N.Y. Soc. Serv. Law. The MCAC consultation requirement was not meant to address such legislative changes.
Defendants' motions for summary judgment are granted. Plaintiff's cross-motion for summary judgment is denied. The complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
November 13, 1992.