The opinion of the court was delivered by: DAVID G. LARIMER
This is an action brought under Title XIX of the Social Security Act, commonly known as the Medicaid Act, 42 U.S.C. §§ 1396 et seq. Plaintiffs seek declaratory and injunctive relief against the Commissioner of the New York State Department of Social Services and the Director of the Monroe County Department of Social Services for violations of the Medicaid Act, federal regulations implementing the Medicaid Act and various New York State statutes and regulations. Specifically, plaintiffs claim that two recently enacted New York State statutes relating to home health care services, N.Y. Soc. Serv. Law § 365-a(2)(d) and § 367-j [fiscal assessment] and N.Y. Soc. Serv. Law § 367-0 [instruments for home care assessment], and their implementing regulations, violate the requirements of the Medicaid Act. Plaintiffs claim that this Court should enjoin the State and its subdivisions and direct that they comply with the requirements of federal law when dealing with Medicaid-funded home health care services for the poor.
Before the Court are plaintiffs' motion for preliminary injunction and defendant Michael Dowling's cross motion for summary judgment. Because I believe that serious violations of federal law have occurred, and continue to occur, an injunction must issue to guarantee that those who are less fortunate and must rely on Medicaid for health services, receive the full panoply of rights guaranteed to them under federal law before losing their health care benefits. Therefore, plaintiffs' motion for a preliminary injunction is granted and Dowling's motion is denied.
This action was commenced on August 25, 1989, as a class action against the Director of the Monroe County Department of Social Services and the Director of the Monroe County Department of Health ("County defendants"). The original complaint alleged that the County defendants had failed to comply with federal and state laws and regulations pertaining to home health care services, especially concerning the treatment of plaintiff, Michelle Catanzano. The original complaint alleged that the County defendants had failed to provide written notices of changes in Catanzano's home health care services without the approval of her treating physician, thereby violating plaintiffs' due process rights under 42 U.S.C. § 1396a(a)(3), 42 CFR §§ 431.206, 431.210, 431.220, 435.912 and 435.919(a), N.Y. Soc. Serv. Law § 22, and 18 NYCRR §§ 358-3.1(b)(2)(iv), (b)(6), 358-3.3(a)(2), and 505.14(b)(5)(v) and (viii).
On October 17, 1989 ("1989 Decision"), I granted Michelle Catanzano's motion for a preliminary injunction and ordered the County defendants to provide her with the level of home health care prescribed by her treating physician, unless and until a contrary directive was issued pursuant to state regulations concerning home health care services or the fair hearing process mandated by N.Y. Soc. Serv. Law § 22.
On April 25, 1990 ("1990 Decision"), plaintiffs were certified as a class for purposes of this action pursuant to Fed. R. Civ. P. 23(a) and (b)(2). The class was defined as all recipients of Medicaid in Monroe County who receive home health care, and who now or in the future receive less home health care than that level of care ordered by their treating physician.
On October 9, 1990, an amended third-party complaint was filed against the Commissioner of the New York State Department of Social Services and the Commissioner of the New York State Department of Health ("State defendants").
In April 1992, the state once again revised the home health care laws ("the 1992 Amendments"), this time mandating the adoption of "instruments" for use throughout the state for determining eligibility and screening of applicants for and recipients of home health care. N.Y. Soc. Serv. Law § 367-o.
As a result of the 1991 Amendments and the 1992 Amendments, plaintiffs sought leave to file an amended complaint. I granted plaintiffs' leave to file an amended complaint on April 1, 1993 ("1993 Decision"), and suggested that their class definition be modified in light of the proposed amended complaint. I suggested that the new class definition encompass recipients of and applicants for home health care in New York State who have been or will in the future be deprived of their federal constitutional rights through the operation of the 1991 and 1992 Amendments to the laws and regulations governing Medicaid-funded home health care in New York State.
An amended complaint was filed on April 7, 1993, defining the class as suggested in my 1993 Decision.
On December 16, 1993, the pending motion for a preliminary injunction was filed by plaintiffs because of recent actions taken against several named recipients of Medicaid whose home health care services were modified or terminated without receiving what plaintiffs believe to be proper notice and a right to a hearing under the Medicaid Act and its implementing regulations. Plaintiffs maintain that the 1991 and 1992 Amendments, on their face and as implemented, violate their constitutional due process rights as well as rights provided by the Medicaid Act and its implementing regulations.
The next day, on December 17, 1993, I issued a temporary restraining order directing defendants, pending determination of the preliminary injunction motion, "to provide written notices conforming to the requirements of 42 C.F.R. sections 431.210, 431.206(b), 431.211, and 435.919, and an opportunity for a fair hearing to every applicant and recipient class member for whom home health care services are denied or adversely determined following a fiscal assessment."
On December 30, 1993, plaintiffs filed a motion to hold the State defendants in contempt for willful failure to comply with the terms of the temporary restraining order and to compel the State defendants to comply with the Court's order.
The Court held a hearing on the motion for a preliminary injunction on January 11, 1994 and additional materials were submitted at that time on the motions.
Defendants oppose the motion for a preliminary injunction and the State defendants have filed a cross-motion for summary judgment. Defendants deny that the notice and hearing rights advocated by plaintiffs are required and, in the alternative, defendants maintain that the 1991 and 1992 Amendments provide adequate notice and fair hearing rights where required. In addition, the State defendants contend that plaintiffs lack standing to challenge the 1991 and 1992 Amendments and that since plaintiffs have failed to properly modify their class definition, the present motion for injunctive relief is improper.
This general rule applies equally to class actions by requiring that "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U.S. 488, 494, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974).
Generally, a plaintiff satisfies the standing requirement if he has "a personal stake in the outcome of the controversy, as measured by a distinct and palpable injury, which is causally connected to the conduct being charged against the defendant." Comer v. Kemp, 824 F. Supp. 1113, 1120 (W.D.N.Y. 1993) (citing Allen v. Wright, 468 U.S. 737, 770, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)). See also Whitmore v. Arkansas, 495 U.S. 149, 155, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990) (plaintiff must allege an injury which is distinct and palpable, actual or imminent, and fairly traceable to the challenged action).
The State defendants maintain that none of the named plaintiffs in this action have suffered an injury as a result of the 1991 and 1992 Amendments. They contend that Michelle Catanzano is exempt from the provisions of the 1991 and 1992 Amendments because she is a special education student and that the other named plaintiffs, Mary Jane Smith and Charles Smith ("the Smiths"), have not alleged any injury at all. As a result of this lack of "injury in fact," the State defendants maintain that the named plaintiffs have no standing to proceed with this action, and therefore, no injunction should issue.
The gravamen of plaintiffs' amended complaint is that defendants' practices and policies deprive them of their federal and constitutional rights. (Amended Complaint P 1). Specifically, plaintiffs contend that as recipients of Medicaid they do not receive adequate notice of adverse actions taken concerning their level of care, that they do not receive proper notice of the right to challenge the action by way of a fair hearing and that they do not continue to receive their existing level of care and services pending the outcome of the hearing ("aid-continuing"). Plaintiffs allege that these rights and procedures are mandated by the Constitution and by federal law and federal regulations. (Amended Complaint P 121-125).
While the amended complaint does address the 1991 and 1992 Amendments, plaintiffs' claims in the amended complaint are not limited solely to those recent enactments. Plaintiffs also contend that defendants provide less home health care services than ordered by the patients' treating physicians without providing adequate notice, hearing rights and aid-continuing. (Amended Complaint P 8). The 1991 and 1992 Amendments are an example of defendants' practices and policies which plaintiffs claim violate their rights.
Plaintiffs have alleged that they are being provided with less home health care services than ordered by their treating physicians, that this reduction was done without adequate notice, without the opportunity for a fair hearing and without the opportunity for aid continuing. (Amended Complaint P 24, 29, 31, 68, 70, 71, 72, 84, 85, 86). These allegations are more than sufficient to confer standing on the named plaintiffs.
To the extent that Catanzano and the Smiths have not been injured as a result of the 1991 and 1992 Amendments, this does not prohibit them from representing the class or having standing. Catanzano and the Smiths have a personal stake in the outcome of this litigation and have been injured by the conduct being charged against the defendants. Those allegations are sufficient to confer standing. Whitmore, supra; Comer, supra.
It is not necessary for plaintiffs to allege that they have suffered actual injury in order to have standing to challenge a statute. Butts v. City of N.Y, 779 F.2d 141, 149 n.5 (2d Cir. 1985), cert. denied, 478 U.S. 1021 (1986). Plaintiffs have standing to challenge a statute based solely on its anticipated effects, Id., as long as it is sufficiently alleged that these anticipated effects will lead to actual injury which can be fairly traceable to the challenged statute. See Heldman v. Sobol, 962 F.2d 148, 154 (2d Cir. 1992) (plaintiff must allege personal injury or threat of injury); Santiago v. Miles, 774 F. Supp. 775, 788 (W.D.N.Y. 1991) ("To establish standing, a litigant must show actual or threatened injury."); Rovira v. AT&T, 760 F. Supp. 376, 379 (S.D.N.Y. 1991).
By alleging that the 1991 and 1992 Amendments will be applied to them and would likely deprive them of their federal and constitutional rights when applied, the Smiths have standing to challenge these amendments, and I have already so ruled in my 1993 Decision. See 1993 Decision at 12 ("Plaintiffs have adequately alleged the likelihood of direct injury traceable to the implementation of the 1991 and 1992 amendments").
In addition, a favorable decision in this action would benefit the Smiths by requiring defendants to provide adequate notice, hearing rights and aid-continuing should implementation of the 1991 and 1992 Amendments require a termination, reduction or suspension of their home health care services. See Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 112 S. Ct. 2130, 2136 (1992) (standing conferred when it is likely that plaintiffs will be redressed by a favorable decision).
In any event, it is not necessary that "each and every issue be raised by each and every member of the class or class representatives . . ." United Nat'l Records, Inc. v. MCA, Inc., 101 F.R.D. 323, 328 (N.D.Ill. 1984) (quoting Vulcan Society of Westchester County v. Fire Dep't of White Plains, 82 F.R.D. 379, 401 (S.D.N.Y. 1979)).
In sum, plaintiffs are challenging what they believe to be unconstitutional procedures utilized by defendants relative to adverse actions taken with respect to plaintiffs' home health care services. Catanzano and the Smiths have standing to represent the class.
A class was certified in this action on April 25, 1990. It was defined as "all recipients of Medicaid in Monroe County who receive home health care, and who now or in the future receive less home health care then most recently ordered by their treating physicians." 1990 Decision at 13.
On August 21, 1992, plaintiffs moved for leave to file an amended complaint and to modify the class definition to permit the class representatives to represent a state-wide class of applicants for and recipient's of Medicaid-funded home health care services.
Fed. R. Civ. P. 23(c)(1) states:
As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.
Class certification decisions by their nature are conditional, and a court has the power to alter or modify the class description if subsequent events suggest that it is appropriate to do so. Levy ...