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Harry Davis, et al v. Nirav Shah

May 2, 2012

HARRY DAVIS, ET AL., PLAINTIFFS
v.
NIRAV SHAH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, DEFENDANT



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action brought by Medicaid recipients to challenge New York State's decision to provide Medicaid payment for prescription footw ear and compression stockings for certain medical conditions but not others. Specifically, Plaintiffs challenge New York State Social Services Law § 365-a(2)(g)(iii), w hich provides Medicaid payment only for prescription footw ear " used as an integral part of a low er limb orthotic appliance, as part of a diabetic treatment plan, or to address grow th and development problems in children," and Social Services Law § 365-a(2)(g)(iv), w hich provides Medicaid payment only for compression stockings " for pregnancy or treatment of venous stasis ulcers." Plaintiffs suffer from a variety of other illnesses that require the use of prescription footw ear or compression stockings, for w hich New York's Medicaid program previously provided coverage, but w hich are not covered by the above-quoted statutory provisions. Subsequent to Social Services Law § § 365-a(2)(g)(iii) & (iv) taking effect in 2011, Plaintiffs learned that their prescription shoes and compression stockings w ere no longer covered for their medical conditions, w hen they attempted to fill prescriptions for those items and w ere told by their medical suppliers that such items are now excluded from coverage. Prior to that, Plaintiffs had no notice of the change in coverage. Now before the Court is an application by three plaintiffs, Harry Davis (" Davis" ), Rita-Marie Geary (" Geary" ) and Patty Poole (" Poole" ) (collectively " Plaintiffs" ), for a preliminary injunction directing the New York State Department of Health to pay for their prescription shoes and compression stockings pending a resolution of their claims. The application is granted.

BACKGROUND

New York State participates in Medicaid, w hich " is a jointly funded Federal and state medical assistance program that w as established by Title XIX of the Social Security Act [(" SSA" )] (42 USC §§ 1396 et seq.)." Jennings v. Commissioner, N.Y.S. Dept. of Social Servs., 71 A.D.3d 98, 114, 893 N.Y.S.2d 103, 115 (2d Dept. 2010). In that regard, Title XIX of the Social Security Act, 42 U.S.C. [ §§ ] 1396 [et seq.], authorizes each state to participate in a cooperative federal-state program for medical assistance to the needy, know n as Medicaid, and to operate a medical assistance plan, subject to federal statutory and regulatory guidelines. If a state chooses to participate, it must adopt a statutory plan setting forth the coverage to be extended to recipients, including the terms upon w hich individuals w ill be eligible and it must extend benefits to those w ho are eligible for federally-funded financial assistance, such as recipients of Supplementary Security Income (SSI) for the aged, blind and disabled, know n as the " categorically needy." Caldw ell v. Blum, 621 F.2d 491, 494 (2d Cir. 1980).

For purposes of this Decision and Order it is undisputed that Plaintiffs are categorically needy persons, and that 42 U.S.C. § 1396a(a)(10)(A) and 42 U.S.C. § 1396d(a)(4) together require participating states to provide such persons w ith " medical assistance," including " nursing facility services." Furthermore, 42 U.S.C. § 1396a(a)(10)(D) requires participating states to provide " home health services" to any person entitled to receive " nursing facility services." Thus, New York is required to provide Plaintiffs w ith " home health services," among other things. See, 42 C.F.R. § 440.210(a)(1) and 42 C.F.R. § 440.70. Home health services include " [m]edical supplies, equipment, and appliances suitable for use in the home." 42 C.F.R. § 440.70(b)(3). For purposes of the instant Decision and Order, it is undisputed that prescription footw ear and compression stockings qualify as " medical supplies, equipment [or] appliances suitable for use in the home."

Title XIX requires states to establish " reasonable standards" for determining eligibility for medical assistance. See, 42 U.S.C.A. § 1396a(a)(17) (West 2012). Title XIX also contains a " comparability requirement," w hich provides that " the medical assistance made available to any individual . . . shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual[.]" 42 U.S.C.A. § 1396a(a)(10)(B)(I) (West 2012); see also, 42 C.F.R. § 440.240. Moreover, Title XIX's regulations further w arn that state Medicaid programs " may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherw ise eligible recipient solely because of the diagnosis, type of illness, or condition," but " may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures." 42 C.F.R. § 440.230(c)&(d).

New York's statutory plan for providing " medical assistance for needy persons" under the Medicaid program is set forth in Article 5, Title 11 of the New York Social Services Law (" NY Soc. Serv. Law " ), § 363 et seq. The instant case involves NY Soc. Serv. Law § 365-a(2)(g)(iii) & (iv), w hich purports to limit payments for prescription footw ear and compression stockings. Specifically, the statute states, in pertinent part:

2. " Medical assistance" shall mean payment of part or all of the cost of medically necessary medical, dental and remedial care, services and supplies, as authorized in this title or the regulations of the department, w hich are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere w ith such person' s capacity for normal activity, or threaten some significant handicap and w hich are furnished an eligible person in accordance w ith this title and the regulations of the department. Such care, services and supplies shall include the follow ing medical care, services and supplies, together w ith such medical care, services and supplies provided for in subdivisions three, four and five of this section, and such medical care, services and supplies as are authorized in the regulations of the department:

(g) . . . (iii) prescription footw ear and inserts are limited to coverage only w hen used as an integral part of a low er limb orthotic appliance, as part of a diabetic treatment plan, or to address grow th and development problems in children; and (iv) compression and support stockings are limited to coverage only for pregnancy or treatment of venous stasis ulcers;

McKinney's Soc. Serv. L. § 365-a(2)(g)(iii) & (iv) (West 2012) (emphasis added). The accompanying state regulations do " not allow exceptions to defined benefit limitations" concerning orthopedic footw ear and compression stockings:

(g) Benefit limitations. The department shall establish defined benefit limits for certain Medicaid services as part of its Medicaid State Plan. The department shall not allow exceptions to defined benefit limitations. The department has established defined benefit limits on the follow ing services: (1) Compression and surgical stockings are limited to coverage during pregnancy and for venous stasis ulcers. (2) Orthopedic footw ear is limited to coverage in the treatment of children to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle or foot; in the treatment of children to support a w eak or deformed structure of the ankle or foot; as a component of a comprehensive diabetic treatment plan to treat amputation, ulceration, pre-ulcerative calluses, peripheral neuropathy w ith evidence of callus formation, a foot deformity or poor circulation; or to form an integral part of an orthotic brace. 18 NYCRR § 505.5(g)(1) & (2).

Plaintiffs do not suffer from the conditions covered by Soc. Serv. L. § 365-a(2)(g)(iii) & (iv) or 18 NYCRR § 505.5(g). Instead, Plaintiffs suffer from conditions including multiple sclerosis, paraplegia, lymphedema, cellulitis, psoriatic arthritis,and trans-metatarsal amputation, for w hich their doctors have prescribed either orthopedic footw ear or compression stockings. Complaint [#1] at ¶ ¶ 2-7. For purposes of the subject motion, it is undisputed that,

[w ]ithout these medically necessary treatments, [Plaintiffs] face a high likelihood of hospitalizations to address life-threatening infections and other preventable conditions. As a result of Defendant's policy and regulation, [Plaintiffs] are likely to be institutionalized in nursing homes and rehabilitation centers in order to be treated for the very conditions the eliminated items w ould have prevented at much low er cost. Complaint [#1] at ¶ 11.*fn1

On March 14, 2012, Plaintiffs commenced the instant action. Plaintiffs maintain that Soc. Serv. L. § 365-a(2)(g)(iii) & (iv) or 18 NYCRR § 505.5(g) " violate federal Medicaid and disability discrimination law s." Complaint [#1] at ¶ 12. In that regard, Plaintiffs contend that the restrictions violate specific provisions of Title XIX, the Americans With Disabilities Act (" ADA" ), and Section 504 of the Rehabilitation Act (" Section 504" ). Plaintiffs maintain that New York State has violated four separate aspects of Title XIX: 1) the " reasonable standards" provision, 42 U.S.C. § 1396(a)(17); 2) the " comparability requirement," 42 U.S.C. § 1396a(a)(10)(B); 3) the requirement to provide home health services, 42 U.S.C. § § 1396a(a)(10)(A), 1396a(a)(10)(D) and 1396d(a)(4); and 4) the due process requirement, 42 U.S.C. § 1396a(a)(3). Plaintiffs further contend that the challenged provisions discriminate against them on the basis of disability, in violation of the ADA and Section 504. The action seeks declaratory and injunctive relief, attorney's fees, costs and disbursements. Defendant has filed an Answ ...


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