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Jason B. v. Novello

February 19, 2009

IN THE MATTER OF JASON B. (ANONYMOUS), RESPONDENT,
v.
ANTONIA COELLO NOVELLO, & C., ET AL., APPELLANTS.



The opinion of the court was delivered by: Ciparick, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

In this appeal, we are asked to determine whether the doctrine of res judicata precludes the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) from reassessing an earlier decision that an applicant is eligible for benefits as a result of a developmental disability as defined by Mental Hygiene Law § 1.03(22). We conclude that it does not.

The Medicaid Act, administered by the Secretary of the Department of Health and Human Services, is a cost-sharing arrangement under which the federal government reimburses a portion of the expenditures incurred by states that elect to provide medical assistance to individuals who lack the resources to cover the costs of their medical care. Medicaid eligibility usually depends upon a strict financial means test. Those who receive institutional care can ordinarily satisfy this test. The Act allows the Secretary to grant a Home and Community Based Waiver giving the states the option to provide home or community-based services to certain individuals who would otherwise require nursing home or other institutional care (see 42 USC §§ 1396a[a][10][A][ii][VI] and 1396n[c]).

New York State, through OMRDD, is authorized to operate such programs, each designed to assist individuals who meet specific eligibility requirements. These programs provide home and community based services targeted to a limited number of individuals with developmental disabilities in order to assist them to be active and to participate in their communities. For an individual to be eligible for such waiver programs, 14 NYCRR 635-10.3 requires that the applicant must have a developmental disability and would be placed in an Intermediate Care Facility for the Developmentally Disabled but for the provision of waiver services. These waiver services allow the Medicaid eligible applicant to remain in the community by choosing to reside in an appropriate living arrangement instead of placement in a facility.

OMRDD, under the oversight of the New York State Department of Health (DOH), provides waiver services which can include in-home care, counseling, vocational training, rental subsidies, transportation and respite services for families and caretakers*fn1. In order to qualify for OMRDD-funded services, an applicant must show the disability:

"(a) (1) is attributable to mental retardation, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia or autism;

(2) is attributable to any other condition of a person found to be closely related to mental retardation because such condition results in similar impairment of general intellectual functioning or adaptive behavior to that of mentally retarded persons or requires treatment and services similar to those required for such person; or (3) is attributable to dyslexia resulting from a disability described in subparagraph (1) or (2) of this paragraph;

(b) originates before such person attains age twenty-two;

(c) has continued or can be expected to continue indefinitely; and

(d) constitutes a substantial handicap to such person's ability to function normally in society." (Mental Hygiene Law § 1.03[22]).

OMRDD, through its thirteen regional Developmental Disabilities Services Offices, establishes eligibility for these services on the basis of the applicant's developmental disability within the definition of Mental Hygiene Law § 1.03(22). Generally, OMRDD bases its eligibility determination upon the documentation provided by the applicant. At any point during the eligibility determination process, however, OMRDD may request more information or further assessment of an individual. These further assessments can be performed by the referral source, the individual's other current providers or by an independent qualified practitioner*fn2. If an applicant is found not to meet the requirements of Mental Hygiene Law § 1.03(22), the denial is automatically reviewed by designated clinicians and an independent OMRDD committee composed of licensed practitioners. Approvals, however, are made without an administrative hearing and once a regional office determines an individual is eligible, no further clinical or committee review is required.

In 2003, petitioner Jason B. applied for OMRDD support services through the Hudson Valley regional office. He was found eligible for services and began receiving from OMRDD a rent subsidy and an in-home aide through a private service provider, Taconic Innovations, Inc. The aide was to assist him with his daily living skills, such as laundry, cooking, shopping and further provide Jason B. with transportation and money management training.

Over the next couple of years, as Taconic provided the support services to Jason B., it began to question whether he was developmentally disabled, citing his repeated behavioral problems and requested that OMRDD reevaluate him. In 2006, after a break in service caused by Jason B.'s arrest and incarceration, Taconic again asked OMRDD to reconsider his eligibility for services. In 2006, the Hudson Valley regional office reassessed Jason B.'s medical records and its eligibility committee concluded that its initial grant of services in 2003 was in error. Subsequently, two independent OMRDD committees, composed of licensed physicians, psychologists and social workers, reviewed the same medical information that had ...


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