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MAYER v. WING

April 3, 1996

ANNA MAYER, MARIE DiBIASI, MURRAY ROSENBERG, SHIRLEY SAMBROFF, and KATE YABLON, individually and on behalf of all others similarly situated, Plaintiffs, -and- CONSUELO CASTRO, by her daughter and next friend, ALBERTINA REYNOSA, SABINE PARZEN, and MARY ANN PEREZ, individually and on behalf of all others similarly situated, Proposed-Plaintiff-Intervenors, against BRIAN WING, Acting Commissioner of The New York State Department of Social Services and MARVA HAMMONS, Administrator of the New York City Human Resources Administration, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 This is a class action challenging the manner in which New York City and State agencies have reduced home care services for Medicaid recipients. The individually named Plaintiffs are five recipients of home care services, each of whom received notice that the level of services he or she received was being reduced. The defendants are the Acting Commissioner of the New York State Department of Social Services ("State Defendant") and the Administrator of the New York City Human Resources Administration ("City Defendant"). Presently before the Court is Plaintiffs' motion for a preliminary injunction Preventing the City Defendant from reducing or terminating home care services without a change in the recipient's condition or circumstances, and requiring Defendants to automatically schedule a fair hearing -- with aid-continuing -- for any recipient whose level of care is reduced. Also before the Court is Plaintiffs' motion for class certification. For the reasons set forth below, Plaintiffs' motion for a preliminary injunction is granted in part and denied in part, and Plaintiffs' motion for class certification is granted. *fn1"

 I. Factual Background

 Medicaid, established under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seg., provides medical assistance to individuals whose income and resources are insufficient to meet the costs of medical care, and who are either age 65 or over, blind, disabled, or members of families with dependent children. In New York, the State Defendant is the state agency responsible for the implementation of the State's Medicaid plan. N.Y. Soc. Serv. L. § 363-a(1). The City Defendant administers the Medicaid program in New York City under the supervision of the State Defendant.

 "Medical assistance" is defined to include " personal care services furnished . . . in a home or other location." 42 U.S.C. § 1396 d(a) (24); N.Y. Soc. Serv. L. § 365-a(2)(e). "Personal care services" provided under the New York Medicaid program include assistance with personal hygiene, dressing, feeding and housekeeping. Such assistance must be "essential to the maintenance of the patient's health and safety in his or her own home." N.Y. Soc. Serv. L. § 365-a(2)(e); 18 N.Y.C.R.R. § 505.14(a)(1).

 In New York City, individuals requiring personal care services must apply to the City Defendant's Home Care Services Program. Eligibility is determined under procedures and standards set forth in State regulations and each applicant must undergo a rigorous assessment process. See 18 N.Y.C.R.R. § 505.14(b). The applicant's treating physician must submit a "physician's order" describing the applicant's medical condition and needs; a "social assessment" must be completed by one of the City Defendant's caseworkers; and a "nursing assessment" must be completed by a nurse. A number of factors are considered in these assessments, including the type and severity of medical and functional impairment, the availability of informal caregivers, and the applicant's living and housing situation. See id. On the basis of the various assessments, a medical review team determines the number of hours of care that an applicant will need. See Tr. 30. *fn2"

 Every recipient of home care services must be reauthorized at least once a year. See 18 N.Y.C.C.R. § 505.14(b)(5)(iii). When the recipient is due for reauthorization, the same procedures used for initial assessments are mandated, including a new physician's order, and nursing and social assessments. See 18 N.Y.C.R.R. § 505.14(b)(5)(ix) . Where, upon reauthorization, the City Defendant reduces a recipient's level of care, the recipient has the right to request a fair hearing within 60 days of the notice date. The recipient is entitled to receive "aid-continuing" pending the hearing if her request is made before the effective date of the notice, or, under certain circumstances, within 10 days of the agency's mailing of the notice. See 18 N.Y.C.R.R. Subpart 358-3.

 All of the named Plaintiffs and the intervenors are recipients of home care services who received notices informing them that their level of services was being reduced. All of these individuals requested administrative hearings which, in most cases, resulted in the proposed reductions being withdrawn or held in abeyance pending the outcome of the hearings. At least three of them actually suffered a temporary reduction in home care services. One suffered this reduction despite requesting a fair hearing prior to the effective date. See Affidavit of Plaintiff Shirley Sambroff ("Sambroff Aff."), dated March 15, 1996, P 5. Another experienced a reduction because she did not receive notice that her services were being cut until after the effective date. See Declaration of Michael Scherz, Attorney for Plaintiffs ("Scherz Dec."), dated February 23, 1996, P 6.

 Plaintiffs assert that the City Defendant is arbitrarily reducing home care services for Medicaid recipients rather than following the reauthorization procedures required by law. Plaintiffs argue that personal care services may only be reduced or terminated if it is found that the recipient's circumstances have changed sufficiently to warrant such an action, or if "the social services district reasonably expects that such services cannot maintain or continue to maintain the patient's health and safety in his or her home." N.Y. Soc. Serv. L. § 366-a(5); 18 N.Y.C.R.R. § 505.14(b)(5)(v)(a). *fn3" Plaintiffs contend that the City Defendant decided to reduce their aid despite the absence of either of these requirements. They seek injunctive relief enjoining Defendants from arbitrarily reducing home care services in the future.

 II. Standing

 As an initial matter, Defendants maintain that Plaintiffs lack standing to bring this action. To have standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). The relevant date for measuring whether a plaintiff has standing is the date on which the suit commenced. United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980). Defendants contend that because none of the Plaintiffs was actually experiencing a reduction in services at the time this suit was filed, Plaintiffs had no injury that could be redressed by the court. *fn4"

 Defendants' argument is predicated on an unreasonably narrow construction of the injury Plaintiffs claim to have suffered. Plaintiffs allege that Defendants have been arbitrarily sending out notices of reduction to recipients of home care services, deliberately placing the onus on a very frail and frightened class of persons to fight to retain services previously determined to be medically necessary to their welfare. They allege that the methods Defendants have employed for the reauthorization of home care services violate federal and state Medicaid laws as well as their Fourteenth Amendment right to due process.

 The fact that none of the Plaintiffs was experiencing a reduction of services on the date the complaint was filed is of no moment. Plaintiffs allege that when this suit was commenced, three of them were still awaiting hearings to determine whether their aid would be cut. See Complaint PP 20, 46, 52. These Plaintiffs, who had been informed that their services were being reduced and still faced the imminent prospect of such a fate, have standing to bring this action. See Cottrell v. Lopeman, 119 F.R.D. 651, 653 (S.D. Ohio 1987) (possibility that plaintiff would be denied unemployment benefits at a scheduled hearing is sufficient to meet injury in fact requirement). As the court stated in Cottrell,

 
At the time plaintiff initiated this action he was facing a hearing and hearing procedures which he claimed violated his constitutional rights. This is sufficient to constitute an injury in fact and to provide plaintiff with the requisite standing to initiate this action.

 Id. Because this is a class action, the fact that at least some of the named Plaintiffs have standing is sufficient to confer jurisdiction over Plaintiffs' claims. See Comer v. Cisneros, 37 F.3d 775, 788 (2d Cir. 1994) ("only one named plaintiff must have standing with respect to each claim").

 Moreover, even if Defendants were right that only an actual reduction in services can constitute an injury, Plaintiffs would still have standing. Typically, a plaintiff must be suffering a redressable injury when she commences suit; however, the injury requirement is also met "where the plaintiff has suffered [a past] injury and there is a substantial likelihood that he or she will again be subjected to the allegedly unlawful policy in the future." Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir. 1993) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983)). This is the case here. Three of the named Plaintiffs and intervenors have previously suffered a reduction in services. See Sambroff Aff. P 5; Scherz Dec. P 6; Affidavit of Albertina Reynosa ("Reynosa Aff."), Daughter of Intervenor Consuelo Castro, dated February 22, 1996, P 2. Because each recipient of home services must be reauthorized at least once a year, there is a "substantial likelihood" that these individuals will have their aid cut in the future.

 Defendants assert that the possibility that Plaintiffs will suffer future harm is purely speculative and thus insufficient to confer standing. See Lyons, 461 U.S. at 101-02. "The difference between a threatened injury and a conjectural one is a matter of degree, and since no precise test exists, each case must be considered on an individual basis." Alliance of American Insurers v. Cuomo, 854 F.2d 591, 596 (2d Cir. 1988).

 The threat of future injury here is quite real. Reauthorizations of home care services frequently result in notices of reduction being sent to recipients. Plaintiff Shirley Sambroff has received three such notices since February 1995. See Sambroff Aff. P 10. Intervenor Mary Ann Perez successfully challenged the City Defendant's decision to reduce her aid at a hearing in April 1995, only to receive another notice of reduction six weeks later. See Affidavit of Mary Ann Perez ("Perez Aff."), dated February 23, 1996, PP 8-9. Because notices of reduction are so common, and because the provisions enabling recipients to receive aid-continuing while awaiting a hearing often do not work, *fn5" the likelihood of future injury is great. Standing is therefore established. See Darryl H. v. Coler, 801 F.2d 893, 897 n.3 (7th Cir. 1986) (children had standing to challenge agency policy requiring them to disrobe during physical exams for child abuse because, "in any subsequent child abuse investigation they will again be subjected to the allegedly ...


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