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HIMES v. SULLIVAN

November 13, 1992

CRAIG HIMES, et al, Plaintiffs,
v.
LOUIS W. SULLIVAN, M.D., et al, Defendants.



The opinion of the court was delivered by: DAVID G. LARIMER

 Pending before the Court are the parties' cross-motions for summary judgment. *fn1"

 BACKGROUND

 The factual background of this action is more fully set forth in my prior decision denying plaintiffs' motion for a preliminary injunction, Himes v. Sullivan, 779 F. Supp. 258 (W.D.N.Y. 1991), aff'd, 956 F.2d 1159 (2d Cir. 1992) ("Himes I"), familiarity with which is assumed. In that decision, I considered all of the issues now raised by plaintiffs and determined that a preliminary injunction was not warranted, principally because plaintiffs could not demonstrate a likelihood of success on the merits. The Second Circuit affirmed my denial of a preliminary injunction in a lengthy, seventeen-page decision, entered as a summary order.

 After the Second Circuit's decision, the parties have engaged in discovery and they have now cross-moved for summary judgment. In their motion for summary judgment, plaintiffs essentially rely on the same arguments that they did previously in their motion for a preliminary injunction. Similarly, defendants, for the most part, rely on the same arguments that they set forth in opposition to the motion for a preliminary injunction.

 Although plaintiffs make the same arguments that they did in seeking preliminary relief, they contend that the result should be different now because of certain facts obtained during discovery which plaintiffs claim warrant judgment in their favor as well as additional case authority on certain points which plaintiffs believe supports their cause.

 I have carefully considered all of the matters submitted on the motions for summary judgment and I conclude that defendants are now entitled to summary judgment and plaintiffs' complaint must be dismissed.

 DISCUSSION

 The facts surrounding the initiation of this lawsuit and the statutory and legislative history of the relevant statutes were set forth and discussed at length in my decision denying a preliminary injunction. See Himes I. Because familiarity with that decision is assumed, it will serve no purpose to repeat that which is contained there. To the extent that different factual or legal matters are relevant, those items will be discussed below in connection with the applicable legal discussion.

 Plaintiffs' claims, which are essentially the same claims made on the application for a preliminary injunction, are as follows:

 First, plaintiffs' claim that the defendants are in violation of the clear requirements of the federal Medicaid statute, 42 U.S.C. § 1396a(a)(17)(B), by counting court-ordered support payments and mandatory payroll deductions when calculating "available income" in determining Medicaid eligibility for medical assistance. Plaintiffs contend that the Secretary of the Department of Health and Human Services' ("Secretary") interpretation of what constitutes "available income" and the New York State statute effective January 1, 1991, which comports with that interpretation violate federal law.

 Plaintiffs argue that the Secretary's interpretation of the statute should be given no deference because it is a recent interpretation which, according to plaintiffs, conflicts with the Secretary's earlier interpretation of what constitutes "available income." Plaintiffs want the Court to rule as a matter of law that defendants' interpretation of the Medicaid statute is in error and that neither court-ordered support payments nor payroll deductions should be counted as available income in determining Medicaid eligibility.

 Second, plaintiffs contend that defendant, New York State Department of Social Services ("NYDSS"), failed to give proper and timely public notice before implementing the changes mandated by the New York State Legislature's amendment of New York Social Services Law § 366(2)(a)(5) and 366(2)(a)(7), eliminating court-ordered support payments and payroll deductions as exemptions from determining income.

 Third, plaintiffs claim that defendants also violated both state law and federal regulations by failing to consult with a properly constituted Medical Care Advisory Committee ("MCAC") prior to implementation of the above changes in New York law.

 I. Secretary's Interpretation Concerning Available Income

 I discussed this argument at length in Himes I in my decision denying preliminary relief. I now incorporate by reference and adopt here my analysis of this issue in Himes I. I see no reason to duplicate my writing on this point because I believe I covered it sufficiently in Himes I. Plaintiffs have not suggested anything which would change my earlier analysis.

 In fact, since my decision in Himes I, two circuits have addressed the issue of whether the Secretary's inclusion of child support payments in the definition of "available income" under 42 U.S.C. § 1396a(a)(17)(B), is a permissible construction of the statute. In Peura v. Mala, 977 F.2d 484 (9th Cir. 1992), the Ninth Circuit held that the legislative history of § 1396a(a)(17)(B) did not foreclose the Secretary's interpretation and that deference was owed to the Secretary's interpretation. Peura, 977 F.2d 484. In Emerson v. Steffen, 959 F.2d 119 (8th Cir. 1992), the Eighth Circuit held that the statute did not rule out an interpretation of "available income" which included court ordered support payments and that the Secretary's interpretation was a permissible construction of the statute. Emerson, 959 F.2d at 121-22.

 Based on the analysis in Himes I, and my analysis on this point in that decision and recent caselaw on point, I find that the Medicaid statute itself does not on its face prohibit the Secretary's actions and I find the Secretary's interpretation of what constitutes available income to ...


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