(Defendants' Exhibit 31), prompting resubmissions by the hospital in June and July 1993. (Defendants' Exhibits 32, 33.) In July 1993, the Department of Health conducted a monitoring visit of the hospital. Not surprisingly, various deficiencies were again noted. (Defendants' Exhibit 35.) Nevertheless, in August 1993, the department accepted the hospital's most recent plan for correction. (Defendants' Exhibit 34.)
In November 1994, Kings County Hospital was scheduled to be reviewed by the JCAHO. Having operated for some time with only a "conditional accreditation," the hospital understood that it would have to pass the JCAHO review or lose its accreditation and, thereby, its status as a Medicare/Medicaid provider. To assist the hospital in preparing for the review, New York City's Health and Hospitals Corporation arranged for a mock survey to be conducted in May 1994. In July 1994, the results were announced: numerous problems existed with respect to the hospital's assessment of patients, pharmaceutical services, patient rights, information management, leadership, discharge planning and other social work, nursing care, dietary services, emergency services, physical rehabilitation services, medical records, and plant and safety management. (Plaintiffs' Exhibit 7.) Dr. Bruce Siegel, then-President of the Health and Hospitals Corporation, publicly stated that Kings County Hospital could not be accredited in its then-existing condition. David Firestone, Interim Director Is Named At Kings County Hospital, N.Y. Times, July 22, 1994, at B3. Ed Larkins, the hospital's then-Executive Director was replaced with Jean Leon, an administrator who had helped both Harlem and Metropolitan Hospitals prepare for and pass JCAHO accreditation surveys. Id. The Health and Hospital Corporations also authorized a one-time allocation of $ 1,141,348 to Kings County Hospital to address various needs that would be pertinent to the JCAHO review. (Plaintiffs' Exhibit 14.) Apparently, these efforts proved successful. Kings County Hospital was again accredited by the JCAHO.
Plaintiffs in this case assert that 42 U.S.C. § 1396a(a)(9) confers on them a federal right enforceable through 42 U.S.C. § 1983 to have the New York State Department of Social Services and the New York State Department of Health take reasonable steps to ensure that hospitals operating as Medicaid providers comply with state standards of operation. In moving for summary judgment in their favor, the State defendants submit (1) that plaintiffs have failed to state a claim since 42 U.S.C. § 1396a(a)(9) does not confer the right asserted by plaintiff; and (2) that, even if the court were to find such an enforceable federal right, their actions suffice to satisfy their legal obligations. This court agrees that plaintiffs' have failed to state a claim upon which relief can be granted.
In Evelyn V. I, this court discussed in detail the case law relevant to considering a § 1983 claims based on a federal statute. Evelyn V. v. Kings County Hosp. Center, 819 F. Supp. 183, 190-94 (E.D.N.Y. 1993). The applicable principles of analysis have not changed. A court must begin with the two-step test first articulated in Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106-07, 107 L. Ed. 2d 420, 110 S. Ct. 444 (1989), and thereafter followed in Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509-10, 110 L. Ed. 2d 455, 110 S. Ct. 2510 (1990), and Livadas v. Bradshaw, 512 U.S. 107, 129 L. Ed. 2d 93, 114 S. Ct. 2068, 2083 (1994). In the first step, a court must decide if a case really involves a federal "right," as opposed to simply a claimed violation of federal law. On this point, plaintiffs bear the burden. Factors pertinent to resolution of this issue include (1) whether the statutory provision in question creates obligations binding on the governmental unit as opposed to stating a congressional preference for certain conduct, (2) whether the interest plaintiffs assert is sufficiently specific and definite to be within the competence of the judiciary to enforce, and (3) whether the provision in question is intended to benefit the plaintiffs. If the court is satisfied that plaintiffs have asserted an enforceable right, the second step of the inquiry requires consideration of whether Congress has foreclosed its enforcement under § 1983. Defendants bear the burden of establishing foreclosure and would have to point to a remedial scheme so comprehensive that allowing plaintiffs to sue under § 1983 would be inconsistent with Congress's carefully tailored scheme. See Evelyn V. v. Kings County Hosp. Center, 819 F. Supp. at 192. In applying the Golden State/Wilder test, courts must be mindful of the cautionary note struck in Suter v. Artist M, 503 U.S. 347, 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992). Courts must look carefully at the precise language of any statute relied on by the plaintiffs as the source of the right they seek to enforce, and courts must find that the right at issue is unambiguously conferred by the statute. See Evelyn V. v. Kings County Hosp. Center, 819 F. Supp. at 193; see also Marshall v. Switzer, 10 F.3d 925, 928 (2d Cir. 1993) (reconciling Wilder and Suter); Chan v. City of New York, 1 F.3d 96, 104 (2d Cir.), cert. denied, 510 U.S. 978, 126 L. Ed. 2d 423, 114 S. Ct. 472 (1993) (finding that plaintiffs § 1983 claim was actionable under either the Wilder or Suter analysis).
Applying these principles to plaintiffs' claim pursuant to 42 U.S.C. § 1396a(a)(9), the court notes that two of the three prongs of the first test in Golden State are easily satisfied. The terms of the statute are mandatory not precatory: "A State plan for medical assistance must. . . provide. . . ." (Emphasis added). Moreover, "logic dictates that the intended beneficiaries of such a requirement are the 'recipients of medical assistance under the plan' expressly mentioned therein." Evelyn V. v. Kings County Hospital, 819 F. Supp. at 194 (citation omitted).
The problem in this case is in deciding precisely what it is Congress has mandated in § 1396a(a)(9) for the benefit of Medicaid recipients. Congress requires state Medicaid plans to provide for a state health agency to "be responsible for establishing and maintaining health standards for " institutions such as Kings County Hospital, which operate as Medicaid providers. (Emphasis added). The parties agree that the New York plan provides for the Department of Health to serve this statutory function. They agree that the Department of Health has "established" standards for state hospitals. 10 NYCRR Parts 400, 401, 405. Where the parties disagree is in their interpretation of the statute's requirement with respect to "maintaining health standards." A thing is "maintained" when it is kept "in a state of repair, efficiency, or validity," when it is "preserved from failure or decline." Webster's Third New International Dictionary 1362 (1986). Defendants submit that the statute thus obligates them to review their health standards and, when necessary, update them to ensure that they remain valid and consistent with current medical practice. Plaintiffs submit that the statutory obligation is broader: the State defendants must also use reasonable efforts to ensure that state hospitals participating in the Medicaid program, and particularly Kings County Hospital, operate in compliance with established state standards. The court rejects plaintiffs' construction.
Preliminarily, the court notes that, although § 1983 has been used as a vehicle to enforce federal rights embodied in federal regulations as well as statutes, see Wright v. Roanoke Redevelopment and Housing Auth., 479 U.S. 418, 431-32, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987), it would be quite remarkable for Congress to federalize a whole body of unspecified state rules and regulations and thereby make the state's enforcement of its own standards a federal right that parties could pursue through private § 1983 actions. See Oberlander v. Perales, 740 F.2d 116, 119 (2d Cir. 1984) (rejecting attempt to enforce state Medicaid regulation through § 1983); Concourse Rehabilitation & Nursing Center Inc. v. Wing, 945 F. Supp. 740, 741 (S.D.N.Y. 1996) (alleged violation of state Medicaid plan fails to state federal claim enforceable under § 1983). In fact, the language of § 1396a(a)(9) does not suggest such a sweeping Congressional intent. The statute requires simply that a state agency be responsible for establishing and maintaining health standards "for" participating institutions. An agency can maintain appropriate standards for institutions without having any enforcement powers over those institutions. Indeed, the importance of maintaining current health standards for health care institutions is obvious. Few fields have changed as rapidly in this century as medicine. Surgical procedures, professional training requirements, medication protocols, methods for handling and storing blood, have all evolved considerably, such that standards considered exemplary when § 1396a(a)(9) was first enacted would not be deemed adequate today. Thus, it is entirely sensible to conclude that Congress wished to ensure that states did not view their § 1396a(a)(9) obligation as static. Rather, they would be expected to maintain, i.e., review and update, the health standards they established to ensure that they remained consistent with modern medical practice.
If Congress had wished to mandate enforcement of the state standards, as plaintiffs urge, it could easily have expressed this intent by drafting § 1396a(a)(9) to require maintenance of health standards "at" participating institutions, rather than simply "for" participating institutions. Indeed, as the parties have noted, when the federal government did wish to impose an enforcement obligation on the states with respect to standards for nursing homes, this was plainly expressed. 42 U.S.C. § 1396a(a)(26) requires states to have "medical review teams" conduct "periodic inspections" of such facilities. From 1978 to 1994, 42 C.F.R. § 449.33(5)(iii) required states to review the reports of such medical teams "as they reflect on health and safety requirements and as necessary take appropriate action to achieve compliance or withdraw certification." (Emphasis added). No such survey or compliance obligation has ever been imposed on states with respect to hospitals. In the absence of any language in § 1396a(a)(9), or anywhere else in the Medicare/Medicaid statute or regulations, unambiguously conferring on plaintiffs the right to enforcement of state standards at participating hospitals, this court must grant summary judgment in favor of the State defendants.
In an effort to avoid this result, plaintiffs submit that it makes no sense to think that Congress simply wished to require state agencies to promulgate standards and update them from time to time without also contemplating their enforcement. The legislative history reveals that Congress did "contemplate" local enforcement of state standards, but it did not "mandate" such enforcement. In discussing § 1396a(a)(9), the Senate Report indicates that Congress wished to encourage states to improve health care standards while interfering as little as possible in a state's actual articulation or supervision of those standards. See S. Rep. No. 404 (1965), reprinted in 1965 U.S. Code Cong. & Admin. News 1943, 2015-16.
Your committee expects that these provisions [requiring States to have an agency . . . responsible for establishing and maintaining standards for the types of institutions included under the State plan] will be used to bring about progressive improvement in the level of institutional care and services provided to recipients of medical assistance. Standards of care in many medical institutions are not now at a satisfactory level and it is hoped that current standards applicable to medical institutions will be improved by the State's standard-setting agency and that these standards will be enforced by the appropriate State body.
Id. at 2016 (emphasis added). Congressional "expectations" and "hopes" do not, however, create unambiguous federal rights enforceable through § 1983. See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 19, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981) (Congressional "preferences" do not create enforceable statutory rights).
The overall scheme for review of hospitals participating in Medicare/Medicaid is also at odds with plaintiffs' claim of a federal right to sue State defendants to compel enforcement of state health care standards with respect to hospitals. C.f., Lividas v. Bradshaw, 512 U.S. at , 114 S. Ct. at 2083 (plaintiff's asserted right to complete the collective bargaining process and agree to an arbitration clause is implicit in the structure of the National Labor Relations Act, even if not provided for in so many words). There is simply no federal requirement that state agencies ever survey hospitals to assess compliance with their own standards. Instead, the focus of the statute and regulations is on the promulgation and enforcement of federal standards. It is the Secretary of HHS who has sole responsibility for promulgating federal health, safety, and quality standards applicable to hospitals participating in Medicare/Medicaid programs, see 42 U.S.C. § 1395x(e)(9), and who is charged with enforcing these standards by threatening termination, see 42 U.S.C. § 1395cc(b)(2). Not insignificantly given the cooperative aspect of these programs, the statute contemplates considerable consultation between federal and state authorities as the Secretary carries out these mandates. For example, the Secretary is required to confer with "appropriate State agencies and recognized national listing or accrediting bodies" in setting federal standards for participating hospitals. § 42 U.S.C. § 1395z. Moreover, "in the case of any State . . . which imposes higher requirements on institutions . . . under a State plan . . . the Secretary shall impose like requirements as a condition to the payment for services . . . in such institutions in such State . . . ." Id.6 Thus, should the Department of Health establish and maintain standards for New York hospitals higher than those set in the federal regulations, these will be enforced with respect to Medicare/Medicaid participants, but by the Secretary of HHS pursuant to 42 U.S.C. § 1395z, not by the state agency pursuant to 42 U.S.C. § 1396a(a)(9). The law also contemplates that state health agencies will, by contractual arrangement with the Secretary, conduct on-site surveys to assess hospital compliance with applicable federal standards. 42 U.S.C. § 1395aa(c); 42 C.F.R. § 488.26(c)(1). But the federal government pays for these surveys, 42 U.S.C. § 1395aa(c), and, as the Secretary's contract with the Department of Health expressly states: the agency "acts on behalf of the Secretary" in conducting any survey to determine Medicare/Medicaid compliance, and it is the Secretary who is "the real party in interest in administering the program established by the Act." (Defendants' Exhibit I, Art II. P F.) When such a survey reveals deficiencies in compliance with federal standards, it is the Secretary who must determine the action to be taken, i.e., whether a plan for correction can be agreed upon or whether termination proceedings must be commenced. 42 C.F.R. § 488.28; 42 U.S.C. § 1395cc(b)(2).
The focus of this statutory and regulatory scheme on the responsibilities of the Secretary of HHS for the promulgation and enforcement of federal standards of health care necessarily supports the conclusion that a state agency satisfies its § 1396a(a)(9) obligations to "establish and maintain" local standards for health care providers simply by promulgating and then updating these standards. In this way, Congress certainly hoped to encourage better standards of local health care and even their enforcement. But sensitive to differences in regional capabilities, Congress did not create a federal right to any particular state standard or to any level of local enforcement. The core responsibility for ensuring that Medicare/Medicaid providers meet some minimum standard of care remains exclusively with the federal government.
Because plaintiffs have no federal right to state enforcement of state standards of health care at hospitals participating in the Medicaid program, summary judgment is granted in favor of the State defendants.
Plaintiffs invoke 42 U.S.C. § 1396a(a)(9) as the source of a federal right to state agency enforcement of state standards of health care at hospitals participating in the federal Medicaid program. Because this court finds that § 1396a(a)(9) does not guarantee any such federal right, it grants judgment in favor of the State defendants on the single claim brought against them pursuant to 42 U.S.C. § 1983. Final judgment is hereby entered in favor of Mary E. Glass, the Commissioner of the New York State Department of Social Services, and Barbara A. DeBuono, the Commissioner of the New York State Department of Health.
Dated: Brooklyn, New York
January 30, 1997
UNITED STATES DISTRICT JUDGE