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Bernam v. Daines

September 2, 2010


The opinion of the court was delivered by: John Gleeson, United States District Judge


New York regulations generally guarantee the right to a fair hearing when a social services agency denies or reduces medical services sought by an individual. See N.Y. Comp. Codes R. & Regs. tit. 18, § 358-3.1(b). The regulations do not, however, provide a right to a fair hearing when the agency acts on the orders of the individual's treating physician. See id. §§ 358-3.1(f)(2), 505.23(f).

Plaintiff Meyer Bernam brings this suit through his daughter and next friend, Marina Bernam, individually and on behalf of a putative class of people who have been or will be denied a hearing to challenge a certified home health agency's denial of or reduction in their Medicaid-funded home health services because the agency maintains that it acted on the orders of their treating physicians. Bernam claims that the New York regulations, by disclaiming fair hearing rights when agencies act with the approval of an individual's treating physician, violate federal law and other provisions of New York law, which he asserts do not condition these rights upon a disagreement between a treating physician and an agency.

Bernam seeks as relief a class-wide injunction requiring that the defendants, Richard Daines, the Commissioner of the New York State Department of Health, Elizabeth Berlin, the Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and Family Care Certified Services, his home health services provider, provide notice and a fair hearing whenever they seek to deny or reduce medical benefits, even if they do so pursuant to a treating physician's order. He also seeks a preliminary injunction requiring the defendants to ensure his continued receipt of home health services, 24 hours a day in two 12-hour shifts, seven days a week, for the pendency of this action.

This memorandum and order addresses only the application for a preliminary injunction. For the reasons discussed below, the application is denied.


To participate in Medicaid, the federally subsidized program through which the federal and state governments administer health care to the needy, a state must comply with federal law and regulations governing the program. See Caldwell v. Blum, 621 F.2d 491, 494 (2d Cir. 1980).Federal law requires that a participating state provide, among other services, home health care services. See 42 U.S.C. § 1396d(a)(7). These services range from assistance with bathing to administering medications and are prescribed by an individual's doctor, who may direct care on a spectrum from brief visits to around-the-clock monitoring.

Only certified home health agencies, or "CHHAs", may provide Medicaid-funded home health services in New York. See N.Y. Pub. Health § 3614(1); N.Y. Comp. Codes R. & Regs. tit. 18, § 505.23(b)(1). As their name suggests, CHHAs are licensed and regulated by the state and must comply with both state and federal law. See Catanzano v. Dowling, 60 F.3d 113, 115 (2d Cir. 1995). CHHAs employ nurses who independently determine the necessity and appropriateness of home health services for each patient; they are not required to provide the level of care prescribed by a patient's treating physician. But if a CHAA does not wish to provide the prescribed level of care -- because, for example, it believes the care is medically unnecessary and therefore ineligible for Medicaid reimbursement -- it may not unilaterally reduce or terminate its services. Instead, it must either (1) provide the prescribed level of care until it can transfer the case to another CHAA willing to do so, or (2) refer the case to the local social services district, notify the patient and treating physician that it has done so, and provide the prescribed level of care until instructed otherwise by the district. See N.Y. Comp. Codes R. & Regs. tit. 18, § 505.23(f) (Catanzano Implementation Plan § 208). Upon referral, the district's local professional director determines whether services should be provided according to the treating physician's order. See id. § 505.23(f) (Catanzano Implementation Plan § 209(b)). If the director determines that they should, she so notifies the CHHA, which must abide by her decision. See id. § 505.23(f) (Catanzano Implementation Plan§ 210(b)). If the director determines that they should not, she must notify the patient and provide an opportunity to request a fair hearing. See id. § 505.23(f) (Catanzano Implementation Plan§ 210(a)). If the patient requests a fair hearing, the CHHA must continue to provide the prescribed level of care (aid-continuing) pending a decision, and the state must reimburse the CHHA for that care. See id. § 505.23(f) (Catanzano Implementation Plan§ 211(a)). By contrast, if a CHHA provides services in accordance with the orders of a patient's treating physician -- including orders that direct a reduction in, or termination of, services -- the patient has no right to a fair hearing to challenge those orders. See id. § 358-3.1(f)(2).

The plaintiff Meyer Bernam is 84 years old. He suffers from congestive heart failure, diabetes, muscle weakness, hypertension, and dementia. Two years ago, he suffered a stroke that left him partially paralyzed. He uses a walker inside his home and a wheelchair outside. Although he lives alone, he cannot bathe or dress himself, has difficulty remembering to take his medications, and needs help to use the toilet or prepare meals. He relies on the services of a home health aide to help him with these tasks. As of November 2009, Bernam was receiving around-the-clock care by aides working in 12-hour shifts pursuant to his doctor's orders. His care was paid for by Medicaid and provided by the defendant Family Care, a certified home health agency.

On November 25, 2009, Maritza Kirkpatrick, a Family Care nurse, visited Bernam in his apartment to evaluate his need for home health services. (CHHAs are required to periodically reassess a patient's need for home health services.) In a progress note dated the same day, Kirkpatrick observed that Bernam could walk slowly with a rolling walker, use the toilet with minimum assistance, and, as he demonstrated for her, monitor his blood pressure and glucose level. She also reported that he had a commode at his bedside. She noted that she had discussed with Bernam a possible reduction in his home health services and that he had indicated that he understood and agreed. At the end of the progress note, she wrote that the "plan" was to reduce Bernam's services to 12 hours per day upon installation of a personal emergency response system,*fn1 and to then reevaluate, at some unspecified time, whether his services could be further reduced to 8 hours per day. At the end of the note, she wrote, "HCCM [Home Care Case Manager] to discuss with patient and MD."

In another progress note dated December 4, 2009, Kirkpatrick recommended that Bernam receive 12 hours of home health services per day, with access to a personal emergency response system, because he appeared to be able to control his bowel and bladder movements, use his commode, dress his lower body with moderate assistance, and walk using a rolling walker. She stated that Bernam's case had been discussed with branch manager Joanne Perrone and that his "MD" had agreed to the reduction in services. She also noted that Family Care had informed Bernam by telephone of the reduction, effective that day.

Although Kirkpatrick did not identify which of Bernam's doctors had agreed to the reduction, one of them, Dr. Polina Feygin, signed a "Physician Order" proposed by Family Care that clearly directed a reduction in Bernam's home health services to "7 DAYS X 12 HOURS X 60 DAYS EFFECTIVE 12/04/2009." Feygin also signed a "plan of care" for the period from December 24, 2009 to February 21, 2010 that provided for 12 hours of care per day.*fn2

Marina Bernam learned of the reduction in care when her father called her sometime in early December, panicked, to tell her that an aide had not reported for the evening shift. She tried, but failed, to negotiate with Family Care a restoration of her father's 24-hour care. Four of her father's doctors, including Feygin, opined in written statements submitted to Family Care that he required full-time care, but Family Care still refused to revisit the reduction.*fn3

In late December, she sought the assistance of her father's present counsel, who requested a hearing to challenge the reduction in care and asked that 24-hour care be restored pending the outcome of the hearing. The state granted the request and a hearing was held on March 17, 2010 before an ...

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