follow-up care" violates federal and state law.
Plaintiffs ask the court to issue an injunction ordering defendants "to provide necessary, adequate, and timely care" to patients at Kings County Hospital; "to establish and implement an effective plan to insure that [patients] receive and continue to receive necessary, adequate, and timely care at Kings County Hospital pursuant to law;" and to appoint a special master to evaluate the proposed plan, make recommendations to the court as to the steps necessary to ensure that patients receive "necessary, adequate, and timely care at Kings County Hospital," and then to monitor implementation of the plan.
D. The Hospital's History of Problems Providing Health Care
Concern with the level of care afforded by Kings County Hospital did not originate with plaintiffs' lawsuit. Since 1986, surveys of the Hospital conducted by the State Department of Health, the New York agency responsible for monitoring institutions participating in the State's Medicare and Medicaid plans, have noted serious deficiencies. The 1989 survey found that Kings County Hospital failed to comply with Medicaid eligibility requirements in a number of areas: (1) physical environment, (2) quality assurance, (3) medical staff, and (4) emergency services. Although the hospital did endeavor to correct most of the cited deficiencies, the Health Care Financing Administration of HHS insisted that the State Department of Health closely monitor the Hospital's proposed plan of correction.
In January 1991, the State Department of Health again declared Kings County Hospital out of compliance with Medicaid standards. Fifty-six pages of deficiencies were cited, including inadequacies in the Hospital's Departments of Medicine, Pediatrics, Rehabilitation Medicine, and Orthopedics. Errors in the administration of medication and failures in the maintenance of patient charts, the sanitization of equipment, and the dietary assessment of high-risk patients were among the myriad of problems noted. On March 19, 1991, HHS advised the Hospital that because the state survey revealed it to be out of compliance with 42 C.F.R. §§ 482.12 (regarding its governing body), 482.21 (regarding quality assurance), 482.22 (regarding medical staff), 482.41 (regarding physical environment), and 482.55 (regarding emergency services), it was being terminated from further participation in the Medicaid program, effective May 19, 1991. The Hospital was, however, given the opportunity to apply for a re-survey before the termination date if it "corrected the deficiencies."
A re-survey, conducted on April 11-19, 1991 by the State Department of Health, revealed that the Hospital had achieved "Condition level compliance" with respect to the defects in its governing body, its quality assurance, its medical staff, and its emergency services. Accordingly, on May 8, 1991, HHS rescinded its earlier order of termination, permitting the Hospital "to correct the remaining deficiencies in accordance with a plan of correction" to be submitted to the State Department of Health. Because the Hospital had been unable to sustain compliance with federal standards in the period between 1989 and 1991, HHS did require it to remain subject to periodic reviews of its eligibility for federal funds.
In the summer of 1991, the City of New York, confronted with serious budget problems, proposed cutting $ 89.2 million from the funds allocated to its Health and Hospitals Corporation. Among the services at Kings County Hospital to be reduced were inpatient nursing, housekeeping, maintenance, and dietary controls. More significantly, the budget cuts would require the Hospital to eliminate its walk-in clinics and evening and weekend outpatient clinics, which relieved pressure on the heavily-burdened emergency room. Defendant Bernard Rose, in deposition testimony in this case, acknowledged that at then-current funding levels, the Hospital was struggling to comply with applicable federal and state health care standards. With the proposed cuts, it would "be very difficult" for the Hospital to maintain compliance.
Plaintiffs in this action therefore sought a preliminary injunction barring the City defendants from implementing the budget cuts at Kings County Hospital. After numerous conferences and, at the court's request, a review of the effects of the budget cuts on health care services by the State Department of Health, the matter was resolved informally.
Plaintiffs nevertheless submit that the specter of budget cuts only aggravates the problems at issue in this lawsuit.
Later in 1991, Kings County Hospital was the subject of further public criticism. A special investigation, ordered by New York City Mayor David Dinkins after a number of patients died at the hospital, criticized "miscommunication, mismanagement, and chaos" at the Hospital. See Lisa Belkin, More Suspicious Deaths Cited at Brooklyn Hospital, N.Y. Times, Nov. 6, 1991, at B3; Mitch Gelman & Gale Scott, Special Counsel: Hospital Gravely Ill, Newsday, Nov. 6, 1991, at 8. The State Department of Health also noted a host of problems, ranging from residents working longer hours than allowed by law, doctors performing procedures for which they had not been certified, nurses failing to notify doctors of important changes in patients' conditions, and staff failing to conduct proper diagnostic tests. See Lisa Belkin, Disorder Involved in Deaths at Kings County, Study Says, N.Y. Times, Nov. 8, 1991, at B3.
In April 1992, the Joint Commission on Accreditation for Health Care Organizations, a private group that annually reviews more than 5,000 of the nation's hospitals, gave Kings County Hospital only a conditional accreditation. While certain areas of performance, including emergency services, apparently passed inspection, others were criticized for inadequate internal controls. See Lisa Belkin, Lincoln Fails After Review of Hospitals, N.Y. Times, April 16, 1992, at B2.
Most recently, in December 1992, yet another commission appointed by Mayor Dinkins released a report suggesting reforms of the City Health and Hospitals Corporation itself. Specifically, the report recommends a strengthening of the powers of both the Board of Directors of the Health and Hospitals Corporation and the executive directors of individual hospitals, and an expansion of the cooperative relationship between the City's hospitals and various medical schools. See Mitch Gelman, HHC Reform Urged, Newsday, December 8, 1992, at 25.
The legal issue before this court is simply stated: can a class of patients eligible for Medicaid assistance maintain a cause of action under § 1983 against these City defendants for alleged deficiencies in the standard of care afforded at Kings County Hospital, an accredited health care provider under New York's approved Medicaid plan. The issue arises, of course, in a disturbing and complex factual context: (1) Kings County Hospital is an institution that daily strains to cope with a staggering number of medical demands; (2) it is unlikely that the Hospital could survive without Medicaid funds; (3) no party thinks that the community would benefit from the closing of the Hospital; (4) in recent years, the Hospital has either fallen short of, or barely satisfied, various federal, state, and private standards of care; and (5) federal and state agencies and private entities have regularly surveyed the Hospital and repeatedly cautioned administrators about perceived deficiencies.
I. Preclusive Effect of Accreditation
The City defendants submit that dismissal of this action is appropriate because the continued accreditation of Kings County Hospital by the Joint Commission on Accreditation of Health Care Organizations necessarily evidences compliance with Medicaid's standards of care. See Concerned Citizens for Creedmoor, Inc. v. Cuomo, 570 F. Supp. 575, 576 (E.D.N.Y. 1983). The court is not persuaded that accreditation by the Joint Commission is determinative. Although courts generally accord considerable deference to the findings of the Joint Commission, its accreditation serves only as "prima facie" evidence of compliance with Medicaid standards. A plaintiff may still rebut this showing of compliance by specific evidence to the contrary. See Woe v. Cuomo, 729 F.2d 96, 106-07 (2d Cir.), cert. denied, 469 U.S. 936, 83 L. Ed. 2d 274, 105 S. Ct. 339 (1984). In this case, where plaintiffs have cited specific deficiencies in their complaint, where it is undisputed that the Hospital has long struggled to meet the standards set for Medicaid providers, and where the Joint Commission's accreditation has been only "conditional," this court cannot say as a matter of law that no set of facts could be adduced to evidence noncompliance.
II. Section 1983 Actions to Enforce Statutory Rights: The Relevant Supreme Court Authority
42 U.S.C. § 1983 provides a private cause of action against any person who under color of state law deprives another of "any rights, privileges, or immunities, secured by the Constitution and laws [of the United States]." Although the cause of action dates back over 120 years, originating in Section 1 of the Civil Rights Act of 1871, 17 Stat. 13 (commonly referred to as "the Ku Klux Klan Act"), it is only in the last fifteen years that litigants have invoked it as a vehicle to vindicate federal statutory, as opposed to constitutional, rights.
The Supreme Court's sanctioning of § 1983 actions based on statutory rights has not come without considerable debate. One need only look to the thoughtful discussions of the legislative history of § 1983 in the concurring opinions in Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979), to understand how reasonable people might differ in their conclusions. Justice Powell's meticulous review of the statute's lineage leads him to find that "the phrase 'and laws' was intended as no more than a shorthand reference to the equal rights legislation enacted by [the Reconstruction] Congress." Id. at 625. On the other hand, Justice White's equally painstaking analysis supports his opinion that § 1983 applies to "all rights secured by federal statutes unless there is clear indication in a particular statute that its remedial provisions are exclusive or that for various other reasons a § 1983 action is inconsistent with congressional intent." Id. at 672.
The following year, the Court seemingly resolved the issue in Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980). Focusing on the "plain language" of the "and laws" clause, it concluded simply that the statute "means what it says." Id. at 4-6. Its scope is not "limited to civil rights or equal protection laws." Id. at 6. Rather, it applies to "any right secured by any law of the United States." Id. at 7.
While it is thus beyond dispute that a § 1983 action can be maintained to vindicate purely statutory rights, the courts have continued to struggle with the question of what constitutes a statutory "right" and whether there are any limits to the cause of action. It is a debate that actively engages the Supreme Court to this day and yields opinions sometimes difficult for lower courts to reconcile.
For example, in Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981), the Court held that "rights" recognized by Congress in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq. (1976 ed. & Supp. III 1979), were not enforceable under § 1983 because they were not express conditions for the receipt of federal funds. The Developmentally Disabled Act, like the Medicaid Act, provides financial assistance to the states to aid them in creating certain programs. Participating states are required (1) to submit a plan for the approval of the Secretary of HHS, 42 U.S.C. § 6009, and (2) to provide the Secretary with "satisfactory assurances that each program . . . which receives funds from the State's allotment . . . has in effect for each developmentally disabled person who receives services from or under the program a habilitation plan," 42 U.S.C. § 6011(a) (emphasis added). Congress spoke to the question of habilitation in the statute's "bill of rights," 42 U.S.C. § 6010, the section at issue in Pennhurst.
Congress makes the following findings respecting the rights of persons with developmental disabilities:
. . . .