and to continue receiving home health care services pending the hearing. 18 NYCRR § 505.23(d)(2).
C. State Defendants' Compliance With Federal Statutes and Regulations.
The State Defendants do not contend that they are not obligated to comply with federal law as a participating state in the federal Medicaid program. Their position appears to be that the statutory and regulatory procedures relating to fiscal assessments are adequate to satisfy those rights guaranteed by federal law and regulation. I must disagree. In my view, a review of the federal statute and regulations concerning notice and hearing rights demonstrates that the fiscal review statute, § 367-j, as written, and the implementing regulations, 18 NYCRR 505.23, do not comply with federal law. Furthermore, it is clear from Administrative Directives ("ADM") issued by the Commissioner of Social Services to county Social Services officials that the statute and the implementing regulations are not being interpreted and carried out in a fashion to provide recipients with those rights mandated by federal law.
It is true that under certain circumstances a recipient of home health care is entitled to a fair hearing prior to termination or reduction of benefits. It is also clear, however, that these rights are not afforded to all recipients who face modification or suspension of their home health care benefits because of an adverse action precipitated by the fiscal assessment process.
As discussed above, there is no statutory provision for a patient to receive either notice of the adverse decision or an opportunity to request a hearing if his home health care services are reduced because both the CHHA and the Social Services district agree on the recommended reduction. N.Y. Soc. Serv. Law § 367-j(1)(i)(ii). The state regulation, at 18 NYCRR § 505.23(c)(11)(iii)(b)&(c), adds a requirement that the recipient's physician must be consulted prior to effecting the home health care modification. However, on the facts submitted to me on this motion, it appears that the State is not complying with this regulation and routinely fails to consult the treating physician prior to effecting the home health care services modification. In any event, even if the treating physician is "consulted" that does not comply with federal requirements that a Medicaid recipient must himself receive notification of an adverse action and proper notification of his right to contest that decision at a hearing.
The statute, N.Y. Soc. Serv. Law § 367-j, on its face, fails to provide for any notice or right to a hearing to a recipient whose home health care is reduced because the CHHA and the Social Services district agree to that course of action.
On the papers submitted to me on the motion, this circumstance affects, or could affect, a large number of recipients. This is especially the case since at least in some parts of the state, in effect, CHHA's are making the actual determination concerning reduction of home health care services since some Social Services districts seem to have routinely acquiesced in CHHA decisions. See Declaration of Valarie Bogart, Attorney for Legal Services for the Elderly, at P 11. Under such circumstances, due to the Social Services districts' apparent abrogation of their responsibility, a CHHA could unilaterally reduce home health care services without affording the patient any notification or any hearing. This practice contravenes the clear directive of federal law and basic due process rights delineated in Goldberg v. Kelly, supra, that prior to any adverse action, the patient must receive a notice indicating the action to be taken, the reasons for the action and the regulations that support such action. 42 C.F.R. §§ 431.210 and 431.211.
It does appear that if the CHHA and the Social Services district disagree then the matter must be referred to the local professional director for a final determination. Under these circumstances, the statute, N.Y. Soc. Serv. Law § 367-j(1)(j), does provide for a "fair hearing" when the patient disagrees with the final determination of the local professional director. The fair hearing is required to be conducted in accordance with § 22 of Title 18, N.Y. Soc. Serv. Law, and regulations enacted pursuant to that section, 18 NYCRR § 358.
The State defendants contend that the process comports with federal requirements because "under state law a . . . recipient's case is always referred to an independent physician (the local professional director) when his treating physician disagrees with any proposed adverse action. (State Defendants' Memorandum of Law at 16) (emphasis in original). Although the statute does not provide for any reference to the treating physician, the state relies on 18 NYCRR § 505.23(c)(11)(iv) which does provide that the case must be referred to the local professional director when either the Social Services official, the CHHA or "a recipient's physician" disagree as to the term of home health care.
First of all, federal rules do not speak in terms of notifying the treating physician, but speak to notification of the patient himself. But, regardless of what the state regulations purport to provide, in fact, on the evidence before me, it does not appear that notification is routinely given to the recipient's treating physician. See Affidavit of Maryjane Wurth, Vice-President of Healthcare Association of New York State, at P 10.
Implementing directives from the Department of Social Services provide damning evidence that the State defendants do not recognize that a fair hearing is required if the treating physician disagrees.
An Administrative Directive, referred to as 92 ADM 50, issued December 1, 1992, describes the only circumstances under which a recipient may obtain a fair hearing. It reads as follows:
A recipient of home health services is entitled to a fair hearing only when the recipient's home health services have been discontinued or the amount, scope, or duration of the home health services has been reduced as a result of the final determination of the local professional director or his or her designee.
92 ADM 50, at p. 26.
This ADM provides that the matter should be referred to the local professional director only under circumstances set forth in statute, that is, when the Social Services director and the CHHA disagree as to the extent to which home health care services should be provided. 92 ADM 50 at p. 21.
The proof before me demonstrates that recipients receiving Medicaid have in the recent past been threatened with the reduction of home health care services based solely on a determination of the CHHA without the recipient receiving any advance notification of such action or any opportunity for a fair hearing as mandated by federal statutory law and federal regulation.
Further proof of the policy of the State defendants on this issue is a hearing decision provided to the Court from an administrative law judge of the Department of Social Services. Under a subheading entitled "Applicable Law" the administrative law judge states:
Specifically, a home health services recipient is entitled to notice, aid-continuing, and an opportunity for a fair hearing only under the following scenario: a certified home health agency (CHHA) has conducted a fiscal assessment pursuant to § 505.23(c), the CHHA has notified the Social Services districts of the results of the fiscal assessment, including whether the CHHA has determined that the recipient's home health care services are appropriate, must be reduced, or must be continued, the district disagrees with the CHHA's determination, the district forwards the recipient's case to the local professional director, and the local professional director determines that the recipient's home health services must be discontinued or reduced. In re Appeal of Mattie Dais, N.Y.S. Dep't of Soc. Serv., FH# 2056034J (Dec. 21, 1993) at p. 2. (Emphasis added).