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April 19, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


Table of Contents

I.    Procedural Background .............................. 605
II.   Legal Standard for a Permanent Injunction .......... 607
III.  Discussion ......................................... 607
      A.  Plaintiffs' Medicaid Claim ..................... 608
            1.  Legal Standard for a Private Right of
                Action Under 42 U.S.C. § 1983 ............
            2.  Application of Standard .................. 611
                a.  42 U.S.C. § 5 1396a(a)(10)(B) .......... 611
                b.  Medicaid Act Regulations ............. 612
            3.  The Merits of Plaintiffs' Medicaid
                Claims ................................... 613
                a.  42 U.S.C. § 1396a(a)(10)(B) ..........
                b.  Plaintiffs' Regulatory Claims ........ 614
      B.  Plaintiffs' Claims Under the Americans With
              Disabilities Act and the Rehabilitation
              Act ........................................ 614
            1.  Applicability of Anti-Discrimination
                Statutes to This Case .................... 615
            2.  The Merits of Plaintiffs' ADA and § 504
                Claims ................................... 618
                a.  "Qualified Individual" With a
                    Disability ........................... 618
                b.  Plaintiffs Are Excluded From Benefits
                    Because of Discrimination Based on
                    Disability ........................... 619
                c.  Reasonable Accommodation ............. 619
                    i.  Essential Nature of Program ...... 619
                    ii. Undue Burden ..................... 621
      C.  Irreparable Harm ............................... 623

IV. Conclusion ........................................... 624

This class action, involving the level of care provided to mentally impaired individuals, arises out of a challenge to New York State's design and implementation of its task-based assessment ("TBA") programs. TBA programs are used throughout the State to determine the amount of personal care services hours provided to eligible Medicaid applicants and recipients. Plaintiffs, New York State Medicaid home care applicants and recipients, suffer from mental disabilities, such as Alzheimer's disease, that cause them to require assistance with the activities of daily living ("ADL"). Defendants are Barbara A. DeBuono, Commissioner of the New York State Department of Health, and Brian Wing, Acting Commissioner of the New York State Department of Social Services, ("the State"), and the respective Departments of Social Services of the City of New York (the "City"), Nassau County ("Nassau"), Westchester County ("Westchester") and Suffolk County ("Suffolk") (collectively with the State, "Defendants").*fn1

Plaintiffs allege that defendants' refusal to include "safety monitoring" as an independent task discriminates against otherwise eligible cognitively impaired individuals in violation of: (1) the Medicaid Act, 42 U.S.C. § 1396 et seq. and its regulations; (2) § 504 of the Rehabilitation Act; and (3) the Americans with Disabilities Act ("ADA"). Plaintiffs now move for permanent injunctive relief on all three grounds. For the reasons that follow, plaintiffs' motion is granted.

I. Procedural Background

Over two years ago, plaintiffs filed a class action complaint and an order to show cause to preliminarily enjoin the State's operation of TBA programs.*fn2 Following a two week hearing, this Court entered an Amended Order ("August 25 Order"), granting in part and denying in part, plaintiffs' request for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.").*fn3 See Rodriguez v. DeBuono, supra. The plaintiffs' motion for a preliminary injunction was also granted in part, based on a finding that plaintiffs had demonstrated a substantial likelihood of success on the merits of: (1) their safety monitoring claim pursuant to the Medicaid Act, 42 U.S.C. § 1396a(a)(10)(B), and its regulations, 42 C.F.R. § 440.240(b); and (2) plaintiffs' claim that due process requires the City's notices of TBA determinations for applicants and recipients to include the number and allocation of authorized hours. See id. at 157, 164-65.*fn4 However, the Court found that plaintiffs failed to make the required showing with regard to their "span of time"*fn5 claims against the City and Nassau County as well as with the remainder of their notice claims. See id. at 161-63, 165, 167. The Court declined to address plaintiffs' ADA and § 504 claims at that time because the preliminary injunctive relief was based on plaintiffs' other claims. See id. at 161 n. 23.

In September 1997, defendants appealed and sought an order staying the portion of the preliminary injunction requiring them to provide safety monitoring relief pending appeal. This Court granted defendants' motion for a stay. On November 16, 1998, the Second Circuit vacated the preliminary injunction, without reaching the merits of the appeal, finding that "imminent irreparable harm," an essential requirement for interim relief, had not been shown in light of the District Court's stay pending appeal. See Rodriguez v. DeBuono, 162 F.3d 56, 62 (2d Cir. 1998), opinion amended and superseded by Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1999).

On remand, the parties requested further discovery and settlement negotiations regarding plaintiffs' span of time claim.*fn6 See Transcript of December 2, 1998 ("Dec. 2 Tr.") at 16-17. However, all parties sought a swift resolution of the remaining claims. The parties and the Court agreed that the litigation would take "two tracks" — one being a final resolution of the safety monitoring claim, and the other a settlement track for the span of time claim. See id. at 11. Accordingly, the span of time claim was bifurcated from the safety monitoring claim, and the parties moved for final resolution of the safety monitoring claim pursuant to Fed.R.Civ.P. 54(b).

Rule 54(b) provides in relevant part:

  When more than one claim for relief is presented
  in an action, whether as a claim, counterclaim, or
  third-party claim, or when multiple parties are
  involved, the court may direct the entry of a
  final judgment as to one or more but fewer than
  all of the claims or parties only upon an express
  determination that there is no just reason for
  delay and upon an express direction for the entry
  of judgment.

Fed.R.Civ.P. 54(b). While the language of the rule does not require the trial court to make either formal findings of fact or conclusions of law in order to certify the judgment under Rule 54(b), I shall nontheless state the reasons justifying the entry of a final order on the safety monitoring claim. See 10 Moore's Federal Practice, § 54.23[2] (Matthew Bender 3d ed. 1999).

First, "a certification under Rule 54(b) should be granted only if there are `interest[s] of sound judicial administration' and efficiency to be served." Harriscom Svenska AB v. Harris Corp., 947 F.2d 627 (2d Cir. 1991) (quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). A court should not enter final judgment on fewer than all the claims in an action if the same or closely related issues remain to be litigated. See Nat'l Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir. 1988) (per curiam). Second, "[n]ot all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims." Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. 1460. The district court must determine that the final decision on certain claims is ready for appeal, taking into account the equities involved as well as judicial administrative interests. See id.

Plaintiffs' counsel expressed strong support for Rule 54(b) certification. See Transcript of April 15, 1999 ("Apr. 15 Tr."), at 7-10 (safety monitoring claim is "separable issue factually distinct" from span of time claim; they are "separate questions . . . not closely related"; "[o]nce the Court of Appeals addresses the issue of whether the defendants are obligated to provide [safety monitoring], that is not going to be an issue again"). Counsel for defendants the State of New York and Westchester and Nassau Counties agree that it would be "in the interests of justice and the interest of judicial economy" to proceed under Rule 54(b) for a final determination of the "sufficiently separable" safety monitoring claim. Apr. 15 Tr., at 10-11. The City defendants, however, take no position with regard to the Court's authority under 54(b) to issue a final judgment on the safety monitoring claim. See id. at 14-15, 100 S.Ct. 1460.

I find that the safety-monitoring claim is separable from plaintiffs' span of time claim. Both claims arise from defendants' implementation of the TBA program. The claim adjudicated in this opinion, however, involves defendants' refusal to provide safety monitoring as an independent task to otherwise qualified mentally impaired Medicaid applicants and recipients. The span of time claim, on the other hand, concerns defendants' alleged failure to authorize sufficient hours of care to cover the span of time during which unscheduled or recurring needs occur. While the claims share some of the same underlying legal issues, for example, Medicaid comparability law, the safety monitoring and span of time claims are factually distinct.

The parties have now briefed the safety monitoring issue twice, and the Court has conducted two weeks of hearings. At this juncture, no further evidence is required. Moreover, the parties themselves are ready to resolve this issue. Finding no just reason for delay, a Rule 54(b) certification is appropriate.

II. Legal Standard for a Permanent Injunction

Generally, to obtain a permanent injunction, a party must show the absence of an adequate remedy at law and irreparable harm if the relief is not granted. See New York State, National Organization for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989) (citing Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57, 95 S.Ct. 2069, 45 L.Ed.2d 12 (1975)). The standard for a permanent injunction is essentially the same as for a preliminary injunction, except that the plaintiff must actually succeed on the merits. See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). However, entry of a permanent injunction requires a less stringent standard than that for a preliminary injunction.*fn7 Although a showing of irreparable harm is required for the imposition of any injunctive relief, preliminary or permanent, see Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir. 1982), the imminent aspect of the harm is not crucial to granting a permanent injunction.See Rodriguez 175 F.3d at ___ n. 9.

The law in this Circuit requires a showing that irreparable damages are likely, not merely possible. See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990); Jackson Dairy. Inc. v. H.P. Hood & Sons. Inc., 596 F.2d 70, 72 (2d Cir. 1979). Irreparable injury is one that cannot be redressed through a monetary award. Where money damages are adequate compensation, a preliminary injunction will not issue. See JSG Trading Corp., 917 F.2d at 79.

In addition, where, as here, "`public consequences' are implicated, it is incumbent upon a district court in exercising its discretion to `balance [ ] the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.'" Sierra Club, 695 F.2d at 649 (quoting Weinberger v. Romero-Barcelo, 456 U.S. at 305, 311, 102 S.Ct. 1798 (1982)).

III. Discussion

A. Plaintiffs' Medicaid Act Claim

Medicaid is a cooperative federal-state program through which the federal government provides financial assistance to states so that they may furnish medical care to those whose income and resources are insufficient to procure such services for themselves. States are not required to participate in all aspects of the Medicaid program, but if they do participate in a given program they must comply with the federal Medicaid statute and regulations in administering that program. See 42 U.S.C. § 1396a; Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); Himes v. Shalala, 999 F.2d 684, 686 (2d Cir. 1993).

The Medicaid Act, 42 U.S.C. § 1396 et seq., 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. "Medical assistance" is defined to include "personal care services furnished . . . in a home or other location." 42 U.S.C. § 1396d(a)(xi)(24); N.Y. Soc. Serv. L. § 365-a(2)(e) New York State has chosen to include the federal option for home care services, including "personal care services", in its State Medicaid plan. See N.Y. Soc. Serv. L. § 365-a(2)(e); 42 C.F.R. § 440.170(f). "Personal care services" include assistance with tasks associated with the ADL, such as bathing, toileting, assistance with medications, personal hygiene, dressing, feeding and light housekeeping and shopping. See 18 N.Y.C.R.R. §§ 505.14(a)(6)(i)(a), (ii)(a). Such assistance must be medically necessary and "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), (4).*fn8

Plaintiffs argue that defendants' implementation of TBA violates the Medicaid comparability provision, 42 U.S.C. § 1396(a)(10)(b), which requires that a state plan provide:

  that the medical assistance made available to any
  individual described in sub-paragraph (A) —
  (i) shall not be less in amount, duration, or
  scope than the medical assistance made available
  to any other such individual, and
  (ii) shall not be less in amount, duration, or
  scope than the medical assistance made available
  to individuals not described in subparagraph (A).

42 U.S.C. § 1396a(a)(10)(B)(i) and (ii).

In holding that plaintiffs were entitled to a preliminary injunction based on the likelihood of success on the merits of their comparability claim, the Court found an enforceable private right of action under § 1396a(a)(10)(B). While the Second Circuit did not reach the merits of this claim on appeal, it did suggest that defendants and the District Court had erroneously characterized the private right of action as a jurisdictional issue rather than as a question of whether plaintiffs have failed to state a claim upon which relief can be granted. See Rodriguez, 175 F.3d at ___. Consequently, I will now address defendants' renewed arguments against permitting a private right of action on the comparability claims. I will also address the question of whether the Medicaid Act regulations, 42 C.F.R. §§ 440.230(b) and 440.230(c), provide a private right of action.*fn9

  1. Legal Standard for a Private Right of Action Under
          42 U.S.C. § 1983

Section 1983 imposes liability on anyone who, acting under color of state law, deprives a person of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. Section 1983 can be used to vindicate violations of federal statutory rights, Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), and its coverage is to be "broadly construed." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989). However, not every violation of a federal law amounts to a violation of a federal right. See Golden State, 493 U.S. at 106, 110 S.Ct. 444.

To determine whether a private right of action exists under a federal statute, plaintiffs must show that the statute is: (1) "intended to benefit" the plaintiffs seeking to enforce it; (2) a "binding obligation on the governmental unit," rather than "merely a congressional preference for a certain kind of conduct;" and (3) not so "vague and amorphous" as to be "beyond the competence of the judiciary to enforce." Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quotation marks and citations omitted).

Once plaintiffs have satisfied this test, they are entitled to a rebuttable presumption that their statutory right is enforceable under § 1983. Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). The burden then shifts to the defendants to demonstrate that Congress "by express provision or other specific evidence from the statute itself . . . intended to foreclose such private enforcement." Wilder, 496 U.S. at 520-21, 110 S.Ct. 2510 (quoting Wright v. City of Roanoke Redev. and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)).

In 1992, the Supreme Court departed from earlier precedent finding that no private right of action existed to enforce § 671(a)(15) of the Adoption Assistance Act. Suter v. Artist M., 503 U.S. 347, 364, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). There, the Court found that § 671(a)(15) was too vague and amorphous to create the private remedy sought by the plaintiffs. See id. at 362-64, 112 S.Ct. 1360. Defendants argue that this holding superimposed an additional threshold inquiry upon the standards established in Golden State and Wilder. This so-called Suter-overlay would require that when Congress acts pursuant to its spending power, any condition imposed on federal monies must be set forth "unambiguously." Suter, 503 U.S. at 355-56, 112 S.Ct. 1360. A determination of what is a "mandatory" condition requires an examination of "exactly what is required of states" by the statutory provision sought to be enforced. See id. at 358, 112 S.Ct. 1360.

Subsequently, Congress expressed its disapproval of Suter, amending the Social Security Act in 1994 to state:

42 U.S.C. § 1320a-2 (hereinafter "Amendment"). Plaintiffs argue that this Amendment shows Congress' intent to reject the Supreme Court's reasoning in Suter and to require courts to return to the pre-Suter approach when deciding whether to recognize a private right of action to enforce provisions other than § 671(a)(15). Defendants, on the other hand, argue that courts should continue to apply a Suter-overlay to any analysis of the existence of a private right of action. In support of their position, defendants point to the fact that ...

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