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K & A RADIOLOGIC TECH. SERVS. v. WING

April 1, 1998

K & A RADIOLOGIC TECHNOLOGY SERVICES, INC. and DIAGNOSTIC X-RAY SERVICES, INC., Plaintiffs,
v.
BRIAN J. WING, individually and as Acting Commissioner of Social Services of the State of New York, Defendant.



The opinion of the court was delivered by: SCULLIN

MEMORANDUM- DECISION AND ORDER

 Introduction

 This action was brought pursuant to 42 U.S.C. § 1983 seeking to remedy a deprivation of the Plaintiffs' right to receive payments under the Medicaid Act, 42 U.S.C. § 1396a(a)(10) and (a)(37), and the Medicare Act, 42 U.S.C. § 1395ccc(a)(2)(A), for services rendered to Medicaid and Medicare recipients. The Plaintiffs, K&A Radiologic Technology Services, Inc. ("K&A") and Diagnostic X-Ray Services, Inc. ("Diagnostic X-Ray"), are two small businesses which provide, upon the request of a physician, portable x-ray and other services to individuals who reside in New York and who are Medicare and/or Medicaid recipients. *fn1" The Defendant, Brian J. Wing, is the Acting Commissioner of the Department of Social Services of the State of New York ("DSS"), which is the state agency in charge of the state Medicaid program. *fn2" The Plaintiffs are suing the Defendant both in his individual capacity and official capacity.

 In their Second Amended Complaint, the Plaintiffs request that the Defendant be enjoined from withholding the 20% Medicare co-insurance payments for portable x-ray services rendered to Qualified Medicare Beneficiaries ("QMBs") and for an order directing the Defendant to reimburse all Medicare co-insurance amounts for past-rendered portable x-ray services to QMBs, as well as a declaration that such x-ray services are covered under the Medicaid Act.

 Statutory Background

 This case concerns the interplay between the Medicare Act and the Medicaid Act, which set up two separate federal health care programs. The Medicare Act, 42 U.S.C. §§ 1395-1395ddd, was enacted to provide medical care to individuals sixty-five years of age or older and certain disabled individuals. All Medicare-eligible individuals are automatically enrolled in Medicare Part A. *fn3" Medicare Part B provides Medicare-eligible individuals with the option of receiving supplementary insurance for medical services Part A does not cover. To enroll in Part B, the individual must pay insurance premiums. See id. §§ 1395o-1395s. Once enrolled, the federal government pays 80% of the reasonable costs and charges for the service, and the individual patient pays the remaining 20% of the Medicare services they receive plus an annual deductible, or the "co-insurance" amount. See 42 U.S.C. § 1395cc(a)(2)(A).

 The Medicaid Act, 42 U.S.C. §§ 1396-1396v, is a joint federal and state funded program which provides medical care for poor people, regardless of age. A state is not mandated to participate in the joint system. However, if the state chooses to participate, the state must adopt a Medicaid plan which meets enumerated minimum requirements. See 42 U.S.C. § 1396d.

 Certain individuals meet the eligibility criteria for both Medicare and Medicaid, and thus are termed "dual eligible." See New York City Health & Hosps. Corp. v. Perales, 954 F.2d 854, 856 (2d Cir. 1992). Individuals who qualify for Medicare and who have incomes below the federal poverty line but are not poor enough to qualify for Medicaid are referred to as "pure QMBs." Both "pure QMBs" and "dual eligible" are considered to be QMBs under the Medicare Act. See 42 U.S.C. § 1396d(p)(1). A state must make funds available for the 20% co-insurance amounts on behalf of such QMBs. See 42 U.S.C. § 1396a(a)(10)(E).

 Procedural Background

 This lawsuit was filed on January 16, 1996. On February 14, 1996, the parties entered into a court-approved settlement ("Stipulation") in which the Defendant agreed to be permanently enjoined from withholding the 20% co-insurance payments for all portable x-ray services that the Plaintiffs would render to QMBs prospectively as of February 12, 1996. As a result of this settlement, only two claims remained: (a) the Plaintiffs' request for an order directing Defendant to reimburse them for the services rendered prior to February 12, 1996, both in his official and/or individual capacity; and (b) the Plaintiffs' request for an order declaring that portable x-ray services were covered under the Medicaid Act and that they are entitled to be enrolled as Medicaid providers. Presently before the Court are cross-motions for summary judgment on these remaining claims, and the Plaintiffs' renewed motion to hold the Defendant in contempt of the Stipulation.

 I. Cross-Motions for Summary Judgment

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence submitted in the light most favorable to the non-moving party, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). A genuine issue of fact is one that could be decided in favor of either party. See Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where, as here, the Court is faced with cross-motions for summary judgment, a court is not obligated to grant either motion. Instead, each motion must be evaluated on its own merits, "'taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Heublein Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (quoting Schwabenbauer v. Board of Educ., 667 F.2d 305 (2d Cir. 1981)).

 A. Reimbursement for Prior Services

 As stated, the Plaintiffs seek payment from the Defendant in his official capacity and individual capacity for the portable x-ray services they rendered to QMBs ...


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