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January 30, 1997

EVELYN V., HUBERT B., ROBERT S., JILL B., DANIEL H., and SARA R., individually and on behalf of all others similarly situated, Plaintiffs, against KINGS COUNTY HOSPITAL CENTER; JAMES BUFORD, as Executive Director of Kings County Hospital Center; NEW YORK CITY HEALTH AND HOSPITALS CORPORATION; J. EMILIO CARRILLO, as President of the Board of Directors of the New York City Health and Hospitals Corporation; THE BOARD OF DIRECTORS OF THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION; GREGORY KALADJIAN, as Acting Commissioner of the New York State Department of Social Services, and MARK CHASSIN, as Commissioner of the New York State Department of Health, Defendants.

The opinion of the court was delivered by: RAGGI

 RAGGI, District Judge:

 For the second time in this case, the court is asked to decide whether patients who seek and obtain medical care at New York's Kings County Hospital Center can maintain an action pursuant to 42 U.S.C. § 1983 (1994) for alleged violations of Title XIX of the Social Security Act, more commonly referred to as Medicaid, 42 U.S.C. § 1396 et seq. (1994). *fn1" In 1993, this court dismissed plaintiffs' § 1983 claim against Kings County Hospital, its Executive Director, its Board of Directors, and the President of its Board, finding that the sections of the Medicaid Act invoked by plaintiffs did not unambiguously confer on them statutory rights enforceable as against these city defendants. Evelyn V. v. Kings County Hosp. Ctr., 819 F. Supp. 183 (E.D.N.Y. 1993) (hereinafter referred to as "Evelyn V. I"). Familiarity with that decision is presumed. Now, defendants Mary E. Glass, Commissioner of the New York State Department of Social Services, and Barbara A. DeBuono, Commissioner of the New York State Department of Health (referred to collectively herein as the "State defendants"), move for summary judgment against plaintiffs on the § 1983 claim brought against them. Plaintiffs oppose this motion and themselves seek summary judgment on their § 1983 claim. The court has reviewed the submissions of the parties and considered their oral arguments. It concludes that summary judgment is appropriately entered in favor of the State defendants.

 Factual Background

 1. 42 U.S.C. § 1396a(a)(9) -- The Source of the Asserted Federal Statutory Right

 The court will not here repeat those facts about plaintiffs, Kings County Hospital, or the Medicaid program that were detailed in its decision in Evelyn V. I. It notes simply that the crux of plaintiffs' claim against the State defendants is that these entities have historically failed to take the steps reasonably necessary to ensure that Kings County Hospital complies with established state health standards. Plaintiffs submit that 42 U.S.C. § 1396a(a)(9) gives them a federal right to such enforcement of state standards by the defendants. That section states in pertinent part:

A state plan for medical assistance must -- (9) provide -- (A) that the State health agency, or other appropriate State medical agency (whichever is utilized by the Secretary for the purpose specified in the first sentence of section 1395aa(a) of this title), shall be responsible for establishing and maintaining health standards for private or public institutions in which recipients of medical assistance under the plan may receive care or services.

 Subpart (9) of § 1396a(a) is one of 62 subparts setting forth the required contents for state Medicaid plans. Plans must be approved by the Secretary of Health and Human Services ("HHS") before a state can receive Medicaid funds. 42 U.S.C. § 1396a(b). It is undisputed that New York State's Medicaid Plan has been approved by HHS. The plan is encompassed in New York Social Services Law § 363 et seq. (McKinney 1992 & Supp. 1996) and regulations promulgated thereunder. The New York State Department of Social Services is the agency that administers New York's plan. See 42 U.S.C. § 1396a(a)(5) (single state agency must be chosen to administer Medicaid plan). But it is the State Department of Health that is charged with "establishing and maintaining standards for" hospitals participating in the Medicaid program. 42 U.S.C. § 1396a(a)(9); N.Y. Soc. Serv. L. § 364(2)(a). General standards for health care facilities are specified in Department of Health regulations at 10 NYCRR Parts 400 and 401. Specific standards for hospitals are specified at 10 NYCRR Part 405.

 As evidence that the State defendants are failing to meet their obligations pursuant to 42 U.S.C. § 1396a(a)(9) with respect to Kings County Hospital, plaintiffs point to various surveys of the hospital over the years revealing noncompliance with health standards. Before the court reviews these surveys, it must note that the Department of Health surveys hospitals in order to ensure compliance with both federal and state law.

 42 U.S.C. § 1395aa(a), expressly referred to in § 1396a(a)(9), provides for the Secretary of HHS to contract with state health agencies to certify those institutions qualifying for Medicaid participation. This law states:

The Secretary shall make an agreement with any State which is able and willing to do so under which the services of the State health agency or other appropriate State agency (or the appropriate local agencies) will be utilized by him for the purpose of determining whether an institution therein is a hospital or skilled nursing facility, or . . . a home health agency, or . . . a hospice program or . . . a rural health clinic, [or] a rural primary care hospital, . . . or a comprehensive outpatient rehabilitation facility.... To the extent that the Secretary finds it appropriate, an institution or agency which such a State (or local) agency certifies is a hospital, skilled nursing facility, rural health clinic, comprehensive outpatient rehabilitation facility, home health agency, or hospice program (as those terms are defined in section 1395x of this title) may be treated as such by the Secretary.

 Further, 42 U.S.C. § 1395aa(c), provides for the Secretary to use state health agencies to conduct surveys of hospitals participating in the Medicaid program. It states:

The Secretary is authorized to enter into an agreement with any State under which the appropriate State or local agency which performs the certification function described in subsection (a) of this section will survey, on a selective sample basis (or where the Secretary finds that a survey is appropriate because of substantial allegations of the existence of a significant deficiency or deficiencies which would, if found to be present, adversely affect health and safety of patients), hospitals which have an agreement with the Secretary under 1395cc of this title and which are accredited by the Joint Commission on Accreditation of Hospitals. The Secretary shall pay for such services in the manner prescribed in subsection (b) of this section.

 42 C.F.R. § 488.26(c)(1) describes the survey process as "the means to assess compliance with Federal health, safety and quality standards." These federal standards are detailed at 42 C.F.R. § 482.1-482.66. *fn2"

 The Secretary of HHS has entered into an agreement with the New York State Department of Health to perform the certifications and surveys provided for in these statutes and regulations. It is expressly recognized in the agreement that, in performing its contractual duties, "the State acts on behalf of the Secretary," who remains "the real party in interest in ...

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