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January 7, 1994

RUTH A. GRANATO, Individually, and on Behalf of All Other Persons Similarly Situated,1 Plaintiff,
MARY JO BANE, as Commissioner of the New York State Department of Social Services; DONALD W. YAGER, JR., as Acting Commissioner of the Cortland County Department of Social Services, and CORTLAND COUNTY, NEW YORK, Defendants. 3

Scullin, Jr.

The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.


 Plaintiff, a Medicaid recipient, initiated this suit alleging, inter alia, violations of her due process rights and rights under certain Medicaid regulations. The matter is presently before the court on Defendants' motions for summary judgment and Plaintiff's cross-motion for partial summary judgment. The Court heard oral argument on November 13, 1992 in Syracuse, New York, and reserved decision on the motions. This constitutes the Order and Decision of the court.


 Plaintiff Ruth A. Granato ("Plaintiff") was seventy-eight years old and maintained her own residence in Cortland County, New York when she commenced this action. At that time, Plaintiff was a recipient of Supplementary Security Income ("SSI") and Medicaid benefits, and remained a recipient at all times relevant to this action.

 From approximately August 4, 1988 until October 19, 1988, Plaintiff received home health/personal care services for eight hours per day, seven days per week. On October 19, 1988, Plaintiff was admitted to Cortland Memorial Hospital ("Hospital") for emergency treatment of a self-induced overdose of a prescribed medication. On October 22, 1988, Plaintiff's treating physician determined that Plaintiff was ready to be discharged from the Hospital and on October 24, 1988, Plaintiff requested that the Cortland County Department of Social Services ("County DSS") reinstate her home health/personal care services, as she desired to return home.

 On November 4, 1988, Plaintiff received notice that the County DSS was discontinuing her home health care services effective October 28, 1988. *fn4" Plaintiff alleges that the County DSS made this decision without having obtained a second medical opinion and without adhering to established procedures. *fn5" The written notice received by Plaintiff advised her that the County DSS was discontinuing Plaintiff's services because, "your safety is threatened if alone, impaired judgment." *fn6" The notice further advised Plaintiff that if she wished her services to continue unchanged (if she desired "aid continuing") pending a fair hearing decision, she had to request a fair hearing prior to the notice's effective date (October 28, 1988). *fn7"

 On November 9, 1988, Plaintiff requested that the State Department of Social Services ("State DSS") provide an expedited fair hearing seeking administrative review of the County DSS's November 4, 1988 determination, and asked that her home health/personal care be reinstated (she requested "aid continuing") pending completion of the fair hearing process. The State DSS granted Plaintiff's expedited fair hearing request, but denied her request for "aid continuing."

 When Plaintiff's counsel contacted the State DSS to inquire as to the reason for denial of the request for "aid continuing," the State DSS informed him that the denial was based upon its determination that Plaintiff's home health/personal care services terminated upon her admission to the hospital. *fn8" Therefore, according to the State DSS, Plaintiff's October 24, 1988 request for "reinstatement" of the home health/personal care services was in reality a new application for these services, and the County DSS was not obligated to grant Plaintiff's "aid continuing" request pursuant to the pertinent regulations. *fn9"

 Plaintiff's counsel responded that since the County DSS had failed to provide Plaintiff with adequate or timely notice advising Plaintiff of its intent to terminate her aide service, it was improper to deem her request a "new application." *fn10" The State DSS answered by explaining that the State's policy was to

 deny aid-continuing status to any fair hearing request where there was an "intervening medical condition," that it was further the State's policy that an "intervening medical condition" eliminated the need to provide either adequate or timely notice; and that each request for continuation of a service after an "intervening medical condition" should be treated as a new application for service, irrespective of whether the "intervening medical condition" continued to impose further medical restrictions on the individual, or imposed any additional restrictions. *fn11"

 Her request for reinstatement of home health care having been denied, Plaintiff continued to receive in-patient hospital services pending her fair hearing. *fn12" Consequently, Plaintiff claims that she was "forced to continue as a patient at Cortland Memorial Hospital [from October 22, 1988 until December 1, 1988], despite the fact that no medical or psychological condition required my hospitalization." *fn13"

 On November 22, 1988, Plaintiff's fair hearing was held before State DSS Administrative Law Judge Carl E. Snitzer (the "ALJ"). The precise issue before the ALJ was the propriety of the County DSS's failure to provide home health/personal care services to Plaintiff in accordance with her physician's recommendation. On December 1, 1988, the ALJ issued his decision, reversing the County DSS's determination and directing that the County DSS reinstate Plaintiff's home health/personal care services. *fn14" The ALJ determined that the County DSS's failure to order the resumption of the home health care services in conformance with her doctor's recommendation could not be supported, as the County "failed to provide medical evidence to support its position [that Plaintiff would fare better in a different residential setting where she would not be left alone for substantial periods of time]." *fn15"

 His conclusion notwithstanding, the ALJ concurred with the County DSS's position that Plaintiff's previously approved home health care services ended upon her admission to the Hospital on October 19, 1988, and therefore her October 24 request for these services constituted a new application. *fn16" The ALJ explained that, upon her admission to the Hospital,

 On November 16, 1988, while awaiting her fair hearing, Plaintiff initiated this lawsuit, alleging that Defendants have violated: (1) her due process rights; (2) her rights under certain Medicaid regulations, to wit, 42 C.F.R. §§ 431.211 and 431.231; (3) the Supremacy Clause, Article VI, Section 2 of the U.S. Constitution; *fn18" and, by virtue of (1)-(3), (4) 42 U.S.C. § 1983. Plaintiff apparently seeks injunctive and declaratory relief against all Defendants, and compensatory damages against Defendant Cortland County ("County"). *fn19"

 Plaintiff's claims for declaratory and injunctive relief are essentially that the DSS Defendants' notices and notice procedures, whereby Plaintiff's home health care services were terminated without advance notice, should be declared violative of her right to due process and her federal rights under Medicaid, and that Defendants should be enjoined from employing such notices and procedures. Likewise, Plaintiff asks that Defendants' failure to reinstate her home health care services pending administrative appeal be declared violative of these rights and also enjoined. Lastly, Plaintiff seeks compensatory damages of $ 25,000.00 against ...

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