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Strouchler v. Shah

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


September 4, 2012

CHARLES STROUCHLER, SARA CAMPOS, BY HER NEXT FRIEND ANA SIMARD, AND AUDREY ROKAW, BY HER NEXT FRIEND NINA PINSKY, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
NIRAV SHAH, M.D., AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, AND ELIZABETH BERLIN, AS EXECUTIVE DEPUTY COMMISSIONER OF THE NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, AND ROBERT DOAR, AS ADMINISTRATOR OF THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION/DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS.

The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

I. INTRODUCTION

On behalf of themselves and a putative class, Charles Strouchler, Sara Campos, and Audrey Rokaw have brought this lawsuit against the Commissioner of the New York State Department of Health, in his official capacity ("DOH" or "the State") and the Administrator of the New York City Human Resources Administration, in his official capacity ("HRA" or "the City"). Plaintiffs are elderly and disabled recipients of 24-hour continuous home care services, administered by the State through its agent the City using Medicaid dollars. They now seek a preliminary injunction (and eventually a permanent injunction) preventing defendants from reducing or terminating these services without adequate notice and legitimate reasons that comply with federal and state law and the federal Constitution.*fn1 They also seek the restoration of services that have been wrongly reduced or terminated since October 4, 2011. On July 17, 26, and 27 I held a hearing to evaluate the parties' evidence. They have submitted both pre-and post-hearing briefs.*fn2

New York State, like many states whose tax revenues were severely reduced by recent economic circumstances, has faced a significant budget crunch in recent years. Simultaneously, medical care is consuming an ever-larger portion of the state's budget and it is understandable that state and local governments are exploring ways to reduce costs. Indeed, reforming our health care system has been a dominant topic of the nation's political discourse in recent years.

While these goals may be laudable, the evidence here establishes a substantial likelihood that defendants' actions have violated federal law and the Constitution's guarantee of due process. Any change in the provision of health care must result from the legislative and regulatory process. But administrators -- even when faced with major budget crises -- may not deprive citizens of the care to which they are legally entitled. Because plaintiffs have established a substantial likelihood of success on the merits and of imminent irreparable harm, their motion for a preliminary injunction is granted, although its scope is narrower than what they seek.

II. FINDINGS OF FACT

A. The Medicaid Program in New York City

As the Second Circuit recently explained,

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 needy individuals. The federal and state governments share the cost of Medicaid, but each state government administers its own Medicaid plan. State Medicaid plans must, however, comply with applicable federal law and regulations.

Any state that participates in Medicaid must designate "a single State agency" . . . to administer -- or to supervise the administration of -- the state's Medicaid plan. See 42 U.S.C. § 1396a(a)(5). Although the State agency may delegate to local entities the performance of certain responsibilities, see 42 C.F.R. § 431.10(e), the State agency must (1) "[h]ave methods to keep itself currently informed of the adherence of local [entities] to the State plan provisions and the agency's procedures for determining eligibility," and (2) "[t]ake corrective action to ensure their adherence," 42 C.F.R. § 435.903 (some quotations and citations omitted).*fn3

In New York State, DOH is the state agency responsible for the implementation of the State's Medicaid plan.*fn4 The City HRA administers the Medicaid program in New York City as the local agent of the State. As part of that program, plaintiffs and others receive help with personal hygiene, dressing, feeding, walking, and other activities of daily life, and are therefore able to continue living in their homes rather than in hospitals or other institutions. This assistance, known as "personal care services," is governed by federal and state regulations.*fn5

The State offers various types of personal care services, depending on a patient's need. The most expansive (and expensive) type is known as "split-shift care," because it involves multiple care givers each working a separate shift so that a patient can have up to 24 hours per day of care. The next type is known as "livein" or "sleep-in" care, whereby one attendant lives with the patient full time and is able to sleep during the night without waking up to provide care except on rare occasions.*fn6

In order to obtain personal care services, Medicaid recipients apply to the City, which conducts an assessment and determines the level of care that it believes is medically necessary.*fn7 Before split-shift care is authorized, the initial determination must be reviewed and approved by an independent physician called a "local medical director" or "LMD."*fn8 Authorizations of personal care services are reviewed either once or twice per year. Before reducing or terminating care, defendants must provide notice to the recipient detailing their reasons for doing so, must provide the recipient the opportunity for an administrative hearing to challenge the change in services, and must refrain from making the changes pending the outcome of that hearing.*fn9

B. Recent Developments

In 2011, the United States intervened on behalf of a City employee who had brought a false claims action alleging that "the City has maintained a policy . . . of reauthorizing split-shift services without any LMD determination," in violation of State regulations.*fn10 As part of the settlement terminating the lawsuit, the City committed "to obtain independent medical reviews in connection with reauthorizing 24-hour split-shift care."*fn11 Also in 2011, the State made certain amendments to its regulations governing personal care services although, according to subsequent clarifications by the State, the relevant changes to the regulations were only semantic, not substantive.

Beginning around April or May of 2011, the City began an initiative "to review all split-shift cases . . . that were being reauthorized."*fn12 This initiative was part of an effort by the City to "reduce or transfer split-shift cases" and to revisit all previous decisions in light of the Feldman settlement.*fn13 Plaintiffs argue that these actions were taken in order to reduce the cost of the program.*fn14

The City has responded by arguing that, because of the structure of the Medicaid program under New York law, it would not benefit financially from a reduction in the number of split-shift recipients.*fn15

Between January 1, 2010 and May 1, 2011, the number of patients on split-shift care fell from 1,356 to 1,274. From August 2011 through April 2012, the number of recipients fell from 1,135 to 945. As plaintiffs point out, "during this more recent period, [the City] reduced its split-shift census twice the amount in half the time."*fn16 Between August 1, 2011 and June 15, 2012, 270 recipients of split-shift care appealed the decision by the City to reduce or terminate their care. After conducting fair hearings, the State's Administrative Law Judges ("ALJs") reversed 262 of these decisions.*fn17 That is, the City's decisions were reversed by the State over ninety-seven percent of the time.

C. Regulations and Interpretations of Regulations Challenged by Plaintiffs Many of the City's termination or reduction notices rely on one or

more of the following reasons, which plaintiffs challenge as improper under state regulations and/or federal law:

1. "Some" Versus "Total" Assistance

Since 1987, New York State's Medicaid regulations have distinguished between a patient's need for "some assistance" with the activities of daily living and a patient's need for "total assistance" with those activities. The distinction is crucial because only those patients who require "total assistance" are entitled to split-shift care. The regulations define the terms as follows:

(i) Some assistance shall mean that a specific function or task is performed and completed by the patient with help from another individual.

(ii) Total assistance shall mean that a specific function or task is performed and completed for the patient.*fn18

The distinction is between those tasks that are completed by the patient with help and those that are completed for the patient. "[I]n the wake of the Feldman case," the administrative leadership at the HRA placed a new "focus" on these definitions to ensure that all split-shift recipients fit within the regulations.*fn19

Instead of ensuring proper implementation of the regulation, however, the City's renewed focus led it to adopt a strained interpretation of "total" and "some" assistance that conflicts with the plain language of the regulation.

According to Anita Aisner, its chief medical director, the City's new understanding of the regulation was this: "some assistance is when the task is completed with the assistance of the patient so that the patient at least minimally assists with the task."*fn20

Rather than focusing on who is the primary person performing the task -- i.e, whether the task is performed by the patient or for the patient -- the City has decided that if a patient can lend even minimal assistance in the performance of the task, she requires only "some assistance" with it. This interpretation resulted in certain unsupportable decisions. Most notably, according to Aisner, an incontinent patient who requires a diaper change needs only "some assistance" with that change if she is able to "help keep [her] body [on its side] by holding onto the side of the bed" so as to make it easier for the home attendant to change the diaper.*fn21

But such a scenario cannot possibly fit the definition of "some assistance," which requires that "a specific function or task is performed and completed by the patient with help from another individual." A patient is not changing her own diaper, with help, when she grabs hold of a bar on the side of a bed. Rather, the task is being "performed and completed for the patient."

On approximately twenty-six occasions since last fall, the State's ALJs have reversed the City's determination that an individual only needs "some" assistance and is thus not eligible for split-shift care.*fn22 In one illustrative case, the ALJ rejected the City's conclusion that an individual needed only "some" assistance with using the toilet:

[The City's conclusion is] not supported by the record at all . . . . Appellant has only partial limbs; no hands and no fingers . . . and she cannot assist in toileting because she cannot ambulate her body at all . . . This Appellant cannot even hold a spoon, nor sit up, nor even turn her head . . . [She is] unable to even turn her body even an inch.*fn23

Despite this individual's severe disability, the City made a determination that she could "perform the task" of using the toilet.*fn24 As the ALJ put it in that opinion, "Partial Assistance by definition means the patient does most of the task,"*fn25 and that was surely not the case here.

2. Care at Times that Cannot Be Predicted

Prior to October 4, 2011, split-shift services were available for a patient only if he or she "requires total assistance . . . at unscheduled times during the day and night."*fn26 After that date, the services were available only if the patient "requires total assistance . . . at times that cannot be predicted."*fn27 On April 9, 2012, the State issued an administrative directive clarifying that the new language "is not a substantive change from past practice."*fn28 This position was reiterated by the State in written testimony.*fn29

Although Aisner testified on behalf of the City that it never treated the change as substantive,*fn30 the City began to rely on the "predictability" of a person's nighttime needs to eliminate split-shift care and began to reduce care for dozens of patients because their need for care was predictable.*fn31 The City's interpretation of the regulation led to the following distinction. If a patient could verbally express her need for a diaper change during the night, she would be eligible for care because her need for the care was not predictable. However, if a patient could not call to his attendant when he needed a diaper change -- for example, because he had dementia -- then he would be ineligible for care. His diaper changes would be regularly scheduled, rather than as-needed, and therefore under the City's interpretation he would not be covered by the regulation.*fn32

In August 2011, a doctor for the City determined that Plaintiff Strouchler's need for catheterization two to three times a night and need to be turned every two hours were "unschedulable" and therefore merited split-shift care; but six months later, the same doctor denied reauthorization of Strouchler's care because those needs were predictable and could be scheduled. He determined that "a mistake occurred in the prior authorization."*fn33 His decision was reversed by an ALJ.

The State's witness confirmed that according to the State's understanding of the regulations, a person who needs regular care (such as diaper changes or repositioning) every two hours throughout the night would be eligible for split-shift care, even though the timing of the care was "predictable."*fn34 On approximately fifty-six occasions, ALJs reversed the City's decision to eliminate care as a result of this issue.*fn35

3. Turning and Positioning

Under the regulations, split-shift care is available for patients who need help with "toileting, walking, transferring or feeding."*fn36 According to the State, a bed-bound patient's need to be repositioned every two hours in order to avoid bedsores has always been included in the term "transferring."*fn37 In 2003, the City's medical training manual conformed with the State's position and indicated that an individual who needed turning every two hours to avoid bedsores might require split-shift care.*fn38 However, the City's current position is that a need for such care does not qualify a patient for split-shift care because turning and positioning is not a component of transferring.*fn39 In approximately thirty-seven fair hearings, ALJs have reversed the City's determination on this issue.*fn40

Notably, Dr. Cameron Hernandez, plaintiffs' expert witness, testified that according to general medical terminology, "transferring" refers to moving from one location to another and is distinct from turning and repositioning in bed.*fn41

Thus, although he made very clear that he believes turning and positioning is medically essential for bed-bound patients, his testimony supports the City's position that turning and positioning is not covered by the regulatory language that refers only to "transferring."*fn42

4. Changes in a Patient's Condition

State regulations require the City to "deny or discontinue personal care services when such services are not medically necessary or are no longer medically necessary," as a result of, among other things, a change in the patient's medical condition.*fn43 In approximately seventy-nine cases, ALJs have determined that the City improperly relied on a purported change in medical condition to justify reducing or terminating split-shift care.*fn44 In one illustrative example, the ALJ held that the undisputed record discloses that the frequency of the Appellant's toileting (3-4x/night) was known during the last authorization and that the only thing that has changed is that the Agency now speculates (without any basis in the record) that the Appellant's toileting can now be addressed on a scheduled basis.*fn45

5. Mistakes

In 1996, in a related action over the same program, I enjoined defendants from terminating home care services for arbitrary reasons, without notice, or without the opportunity for continued aid pending the outcome of a fair hearing appeal.*fn46 Defendants were worried that too restrictive an injunction would prevent them from rectifying any mistakes that they had made in a previous authorization, and so I explicitly permitted them to reduce services in such instances.*fn47 It appears, however, that the City has expanded what was meant to be a narrow exception into a mechanism for simply reducing services arbitrarily. In approximately sixty-five cases, ALJs have reversed the City's determination that a previous authorization was a "mistake."*fn48 The following is one illustrative ALJ explanation:

[While the City's doctor] contended that 'it is clear a mistake has occurred' the evidence establishes that this was a conclusory statement bereft of evidence in order to try to come under the technicality provided by [Mayer] . . . What the evidence establishes is that the [City's doctor] was making a new determination but labeling it as a correction of a mistake.*fn49

C. The Named Plaintiffs*fn50

Charles Strouchler is a 67-year old man who has been disabled by the effects of advanced multiple sclerosis. During the night he must be repositioned at least every two hours in order to avoid the onset of bedsores, his limbs must be repositioned when they spasm, his breathing mask must at times be adjusted, and he must be catheterized. For the past fifteen years he has received this help through split-shift care. In February, 2012, the City informed him that it planned to reduce his care because his "nighttime needs which involve turning/positioning and toileting are anticipated and can be scheduled," and that "therefore a mistake had occurred in your previous authorizations and you do not meet the criteria for continuous care."*fn51 Strouchler challenged the decision and it was reversed by an ALJ on July 9, 2012.*fn52

Sara Campos is a 91-year old woman who requires total assistance with every activity of daily living, including turning and repositioning at least every two hours per night and day to prevent bedsores and frequent diaper changes to ensure skin integrity. She has received split-shift care for the past several years. On February 10, 2012, she received two notices from the City -- one stating that her split-shift care was being reauthorized and the other stating that her care would be reduced because her need for nighttime repositioning and toileting can be scheduled and, as such, does not meet the requirements for split-shift care. Campos challenged the determination and on June 21, 2012, the ALJ reversed the City's decision and affirmed Campos' entitlement to split-shift services.*fn53

Audrey Rokaw is a 93-year old woman who requires total assistance with every activity of daily living, including frequent diaper changes. Like Campos, Rokaw received two conflicting notices from the City; one of them stated that her split-shift care was reauthorized and the other one said it would be reduced because "you require [only] partial [as opposed to total] assistance with ambulating, transferring, and toileting" and that her needs do not meet the requirement for split-shift care.*fn54 Like Campos, she appealed the decision, received aid continuing pending the outcome of her fair hearing, and won a reversal of the City's decision on May 8, 2012.*fn55

III. LEGAL STANDARD FOR PRELIMINARY INJUNCTION

"When seeking a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the moving party must show: (1) it will suffer irreparable harm absent the injunction and (2) a likelihood of success on the merits."*fn56 When the proposed injunction commands action rather than prohibits it, the standard is higher: "[W]here the injunction sought will alter rather than maintain the status quo, the movant must show clear or substantial likelihood of success."*fn57 In addition, "[w]henever a request for a preliminary injunction implicates public interests, a court should give some consideration to the balance of such interests in deciding whether a plaintiff's threatened irreparable injury and probability of success on the merits warrants injunctive relief" in order to avoid harming the public needlessly if the plaintiff does not ultimately succeed on the merits.*fn58 In order to merit preliminary relief, the threat of irreparable harm must be imminent.*fn59

IV. APPLICABLE LAW

A. Procedural Due Process

The Fourteenth Amendment prohibits the state from depriving a person of life, liberty or property without due process of law. There is no dispute that plaintiffs' Medicaid benefits are a protectable "property interest" under the Fourteenth Amendment. There is also no dispute that federal law requires defendants to provide notice and the opportunity for a pre-deprivation hearing if they wish to terminate or reduce a patient's home care services.*fn60

B. Substantive Due Process

As the Supreme Court has explained,

Our prior cases have held the provision that 'no State shall . . . deprive any person of life, liberty, or property, without due process of law,' to guarantee more than fair process and to cover a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them.

We have emphasized time and again that the touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness . . . or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective. . . . [However,] only the most egregious official conduct can be said to be 'arbitrary' in the constitutional sense . . . . To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience.*fn61

Substantive due process "requires that government officials refrain from acting in an irrational, arbitrary or capricious manner."*fn62 Specifically, "decisions regarding entitlements to government benefits [must] be made according to ascertainable standards that are applied in a rational and consistent manner."*fn63

B. The Medicaid Act

The Medicaid Act requires that states use "reasonable standards (which shall be comparable for all groups) . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives" of the program.*fn64 In addition, the federal regulations implementing the Act require that each covered service "be sufficient in amount, duration, and scope to reasonably achieve its purpose."*fn65

Relatedly, under the Medicaid Act's "comparability provision," states must provide recipients with benefits that are equal in amount, duration, and scope to the benefits that are provided to other recipients with the same medical needs.*fn66

The "only proper application [of this provision] is in situations where the same benefit is funded for some recipients but not others."*fn67 According to the regulations, a state may "place appropriate limits on a service based on such criteria as medical necessity."*fn68 However, a state may not "arbitrarily deny or reduce the amount, duration, or scope of a required service . . . to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition."*fn69

C. The Americans with Disabilities Act (ADA)

The ADA and its regulations prohibit discrimination against disabled people, including criteria that "tend to screen out" people with disabilities in a manner that prevents them from "fully and equally enjoying any service program, or activity unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered."*fn70 Part of this requirement involves providing services "in the most integrated setting appropriate to the needs of qualified individuals with disabilities,"*fn71 which in turn is defined as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible."*fn72 States must make modifications to their services, programs, and activities in order to avoid discrimination unless those modifications "would fundamentally alter the nature of the service, program, or activity."*fn73

The Supreme Court has explained that "[i]n evaluating a State's fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with [] disabilities, and the State's obligation to mete out those services equitably."*fn74

V. DISCUSSION

A. Evidence Regarding Putative Class Members

As an initial matter, I must decide whether it is appropriate to consider evidence regarding the putative class members when adjudicating plaintiffs' motion for a preliminary injunction. Because no class has yet been certified, defendants argue that "only the [named plaintiffs'] claims are relevant to the determination of whether they are likely to succeed on the merits."*fn75 It is true that named plaintiffs must have standing to assert claims on behalf of the class and that, in order to satisfy the typicality prong of Rule 23(a), named plaintiffs must assert that they have suffered the same injuries as class members.*fn76 But that does not mean that I should ignore the alleged harm to putative class members or the likelihood that their injuries will enable the plaintiffs to succeed on the merits.

It is well established that "[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class" and that the "court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers."*fn77 Less frequently discussed, however, is whether a court may rely primarily on likely harm to the putative class members -- rather than harm to the named plaintiffs -- at the preliminary injunction stage.

In 2003, Judge Michael Telesca of the Western District of New York granted a preliminary injunction in part on the basis of six affidavits from putative class members showing that they would suffer irreparable harm as a result of an improper reduction in medical insurance coverage.*fn78 The Second Circuit affirmed the injunction, holding that "the district court did not abuse its discretion in relying on this evidence in concluding that the then-putative class suffered irreparable harm warranting a preliminary injunction."*fn79 The facts of LaForest are not identical to those here: most notably, Judge Telesca had already granted summary judgment to the plaintiffs, finding that they were contractually entitled to the health insurance that defendants were denying them. But the facts are not so distinct either: in this case, the State's administrative law judges have reversed the City's decisions in over ninety-seven percent of the appeals brought by putative class members. Like in LaForest, therefore, there is very strong evidence that the City defendant has attempted to deny medical benefits to putative class members who are legally entitled to them.*fn80

According to the Second Circuit's guidance in LaForest, plaintiffs should be permitted to "adduce evidence of harm representatively" if they can show that they are similarly situated to the putative class members and such evidence will be admissible if the class is subsequently certified. Preliminarily examining plaintiffs' entitlement to class status is therefore appropriate, both for determining the likelihood of irreparable harm and the appropriate scope of any injunctive relief. Plaintiffs have moved for class certification but the parties' briefs are not yet fully submitted. Based on the evidence described below, however, it is likely that plaintiffs will be able to meet the Rule 23 prerequisites of numerosity, commonality, typicality, and adequacy.

Given that there are hundreds of recipients of split-shift care, numerosity is satisfied.*fn81 Although the facts of each class member's diagnoses and evaluations are unique to that individual, the following facts regarding the centralization of the program are likely sufficient to satisfy the commonality requirement.*fn82 All putative class members are recipients of medical care administered by the City pursuant to Medicaid; their eligibility for the care is determined by a set of doctors working in one department; that department is run by one individual, Dr. Anita Aisner, who is personally supervising the review of "all split-shift cases"*fn83 ; Dr. Aisner told her staff, in writing, that "I have continued concerns for those [doctors] who have not forwarded any and/or very few [split-shift] reductions to me for review as instructed," and that "this is one indicator of your performance"*fn84 ; over ninety-seven percent of the decisions by the doctors in that department to reduce or terminate putative class members' benefits have been rejected as improper by ALJs. Given this set of facts, it is highly likely that plaintiffs will be able to establish commonality.

The three named plaintiffs were threatened with reductions for precisely the same common reasons (turning and positioning, some versus total assistance, and mistake) that the City relied upon in reducing the benefits of dozens of other putative class members. As a result, they likely satisfy the typicality prong.*fn85

Plaintiffs are represented by experienced and highly qualified counsel and there is no reason to think that the named plaintiffs are inadequate representatives of the class; adequacy is therefore established. Finally, it is likely that plaintiffs claims satisfy Rule 23(b)(2), which requires that plaintiffs establish that defendants "acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."

Because class certification is likely, I will consider the facts relating to putative class members in order to adjudicate this motion. This is done without prejudice to revisiting the class certification question de novo upon submission of briefs by all parties.

B. Plaintiffs Have Demonstrated a Likelihood of Imminent Irreparable Harm A showing of irreparable harm "is the single most important prerequisite for the issuance of a preliminary injunction."*fn86 And as the Supreme Court has recently re-affirmed, plaintiffs must "demonstrate that irreparable injury is likely in the absence of an injunction," not merely that irreparable injury is a possibility.*fn87 The harm must be actual or imminent, not remote or speculative.*fn88

Defendants argue that plaintiffs cannot make a showing of a likelihood of irreparable harm because the fair hearing process protects plaintiffs from erroneous deprivations of medical care.*fn89 Defendants argue that plaintiffs (1) have received legally sufficient notice of the intent to reduce or terminate their benefits; (2) receive continued aid pending the outcome of their fair hearing if they request it; (3) "cite no law" for the proposition that the "terrifying" threat of a loss of medical services constitutes irreparable harm; and (4) "cite no law for the proposition that a litigant who merely has to invoke his or her right to a pre-termination hearing has thereby suffered irreparable harm" simply because complying with the fair hearing process is burdensome.*fn90

Plaintiffs have submitted evidence rebutting the first three of defendants' four arguments, which I summarize below. But it is important at the outset of the irreparable harm analysis to recognize precisely what the City is arguing: in short, it claims that -- despite a ninety-seven percent reversal rate on appeal -- the existence of a well-functioning appeals process eliminates any harm. But even assuming that defendants are providing adequate notice and a fair pre-deprivation hearing, the Constitution's guarantee of substantive due process prohibits "certain arbitrary, wrongful government actions 'regardless of the fairness of the procedures used to implement them.'"*fn91 Procedural due process does not cure arbitrary government action. However, because "only the most egregious official conduct can be said to be arbitrary in the constitutional sense"*fn92 and because prudence demands that courts avoid reaching difficult constitutional issues unless necessary, it is sufficient to document the ways in which defendants have not provided an adequate pre-deprivation process.

First, plaintiffs present significant evidence that many putative class members have not received legally sufficient notice. "'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'"*fn93 Plaintiffs' evidence shows that on at least four occasions, the City "sent split-shift recipients two notices issued on the same date, one reauthorizing and the other reducing or discontinuing their split-shift services for the same reauthorization period."*fn94 In other instances, the City has sent two notices on the same day or in close proximity to one another -- one retroactively reauthorizing split-shift care and the other prospectively reducing split-shift care.*fn95

The City knew that such notices would be confusing, but nevertheless felt obliged to send them because there was a backlog of cases that required reauthorization.*fn96

In addition, the City has issued a Spanish notice to an English-speaking recipient, an illegible notice, and a notice that was never received and perhaps never mailed.*fn97 Finally, in many instances, the City has sent boilerplate notices to recipients stating that their benefits will be reduced because a mistake has occurred but failing to identify the alleged mistake.*fn98

All of the above notices are legally insufficient under the traditional Mullane standard because they are not "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."*fn99 As a practical matter, these improper notices increase the probability that a recipient will erroneously lose her benefits despite the availability of a fair hearing because they are not reasonably calculated to inform her of her right to a hearing.*fn100 In addition, the failure to provide sufficient notice violates the Medicaid statute and regulations.*fn101 Finally, the failure to provide constitutionally sufficient notice is itself irreparable harm; indeed, even the allegation of a deprivation of constitutional rights triggers a finding of irreparable harm for preliminary injunctive purposes.*fn102 In short, defendants' first argument -- that putative class members are receiving adequate notice -- is not persuasive.

Second, plaintiffs have produced evidence showing that at least three putative class members have not continued to receive aid pending their fair hearing.*fn103 As a result, these disabled elderly people have not been turned and repositioned as required by their doctors' orders and have spent nights lying in soiled diapers, and one did not drink a sufficient amount of water in an attempt to avoid wetting her diapers. This puts them at risk of developing bedsores and infections.*fn104

This loss of medical care, in contravention of federal law, constitutes irreparable injury.*fn105

Third, there is Second Circuit and out-of-circuit appellate law holding that the mere threat of a loss of medical care, even if never realized, constitutes irreparable harm.*fn106 Dr. Hernandez testified that particularly for elderly and demented patients, anxiety exacerbates symptoms of mental illness and worsens pain.*fn107 Thus, even home care recipients who do receive aid pending their fair hearing are likely to suffer irreparable harm as a result of the threatened reduction in their care.*fn108

Finally, it is important to remember that the City succeeded in reducing or terminating the split-shift care of approximately 312 people between October 4, 2011 and July 20, 2012.*fn109 During that time, however, approximately ninety-seven percent of people who were threatened with a reduction or termination of benefits and asked for a fair hearing succeeded in reversing the City's decision. Although it may be that many of the 312 individuals who failed to request a fair hearing did so because they agreed that they were no longer entitled to split-shift care, it is also highly likely that many of the 312 simply failed to request a fair hearing because they did not receive or understand the notice or recognize their right to a fair hearing. It is further likely that some of the people who did not request a hearing were in fact similarly situated to the people who requested and won hearings and that if they had requested a fair hearing, the ALJ would have ruled in their favor.

The evidence shows that members of the putative class have been irreparably harmed as a result of defendants' actions. And the evidence also establishes a strong likelihood that if defendants' actions continue unabated, members of the putative class will imminently suffer more irreparable harm.

C. Plaintiffs Have Established a Substantial Likelihood of Success on the Merits

As I explain below, plaintiffs have established a likelihood of success on their challenge to the defendants' practices on the basis of the Medicaid Act and on grounds of procedural due process. I therefore do not need to reach their claims under the ADA and the Rehabilitation Act or under substantive due process.

Two principles are central to plaintiffs' likelihood of success on their Medicaid Act claim. First, defendants are obligated to use "reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan"*fn110 and to provide the same services to all eligible individuals who have the same need for those services.*fn111 Second, as federal regulations and the Second Circuit have made clear, the State must ensure compliance with the Medicaid Act; although the City acts as the State's agent, the State bears ultimately responsibility for the program.*fn112

As plaintiffs point out, the State has authority to make its fair hearing decisions "binding" on other similar cases.*fn113 Of course, it can also issue clearer regulations and clarifying memoranda and it can conduct training sessions.*fn114

Given the State's ninety-seven percent reversal rate of City decisions, the State's failure to direct the City to change its practices is troubling.*fn115

1. "Some" Versus "Total" Assistance

Plaintiffs have established a substantial likelihood that they will prevail on their claim regarding the City's interpretation of the terms "some assistance" and "total assistance." As I discussed above, the City is failing to assess whether a task is performed by the patient or for the patient, and treating all patients who can participate in any way as needing only "some" assistance. This interpretation conflicts with the plain meaning of the regulation and the State's failure to "[t]ake corrective action to ensure [the City's] adherence" to the regulations violates the Medicaid Act.*fn116

2. Care at Times that Cannot Be Predicted

Plaintiffs have established a substantial likelihood that they will prevail on their claim regarding the availability of home care for patients who have frequent medical needs at times that can be predicted -- e.g., those patients like Strouchler who need attention every two hours. The State's regulation now states that split-shift care is only available if the assistance is needed at times that "cannot be predicted."*fn117 However, the State's witness testified that a patient who needed diaper changes and turning and positioning throughout the night would not be ineligible for split-shift services simply because the need was regular and could be predicted.*fn118 In multiple fair hearing decisions, the ALJs have reversed the City's determination to eliminate split-shift care based on its interpretation of this regulation.*fn119

There is a substantial likelihood that the State's failure to clarify the meaning of this regulation and ensure that its agent (the City) adheres to that meaning violates the State's duty to create and enforce "reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan."*fn120

3. Turning and Positioning

Plaintiffs have established a substantial likelihood that they will prevail on their claim regarding the availability of home care for patients who have a medical need for turning and positioning (but not transferring) during the night. The State's regulations do not include "turning and positioning" as one of the activities of daily living for which split-shift care is available. Instead, the State argues that it "has rationally determined not to add 'turning' or 'repositioning' to the list of tasks included in personal care services regulations because [it] believes these acts are part of the function of 'transferring' which is included in the regulation."*fn121

Although the State's position was apparently uncontroversial for many years, Dr. Aisner, believes that the concept of "turning" and "positioning" is not included in "transferring." Plaintiffs' doctor agrees with her. Even the State's chief witness acknowledged, on cross examination, that the terms generally refer to different activities.*fn122

The State's position is therefore unclear. In dozens of cases, the State has reversed the City as a result of this confusion. There is a substantial likelihood that the State has therefore failed to establish and ensure adherence to "reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan."*fn123

4. Changes in Medical Conditions or Previous Mistakes

Plaintiffs have established a substantial likelihood of success on their claim that the City has, in dozens of cases, improperly cited either a change in condition or a mistake in previous assessment (and frequently both) to justify reducing or terminating split-shift care.*fn124 These decisions are unreasonable. Because, in these cases, neither the City nor the State has ensured compliance with reasonable standards, there exists a substantial likelihood that defendants have violated the Medicaid Act.

5. Failure to Provide Adequate Notice

Finally, as described in the analysis of irreparable harm, the City's form of notice has frequently violated the Medicaid requirement that all termination notices comply with Goldberg v. Kelly.*fn125

D. Balance of Interests

Plaintiffs' interest in halting the improper reduction and termination of their benefits is significant. On the other hand, the State and the City have no legitimate interest in improperly reducing or terminating the benefits of people who are legally entitled to those benefits. The City argues that the public has a interest in "the orderly administration of split-shift services and other personal care services," and that is surely true.*fn126 But over the past sixteen months, defendants'

implementation of the home care services program has been disorderly. Acting as the State's agent, the City has informed hundreds of elderly and disabled people that they are no longer entitled to the medical care that they have been receiving. Then, after causing these vulnerable patients a great deal of anxiety and much work on the part of their family members and advocates, the State has reversed ninety-seven percent of the City's decisions. The public can have no interest in the perpetuation of such practices. Both plaintiffs' interest and the public interest weigh heavily in favor of injunctive relief.

E. Appropriate Scope of Injunctive Relief

Plaintiffs seek an injunction "enjoining the City and State Defendants from reducing or terminating split-shift home care services to those New York City Medicaid recipients currently receiving these services and . . . reinstating split-shift services to any New York Medicaid recipient whose split-shift home care has been reduced or terminated since January 1, 2011."*fn127 Furthermore, they seek to enjoin enforcement of State regulations insofar as they deny split-shift care to patients because they need only turning and positioning (but not feeding, ambulating, transferring, or toileting), because their needs are deemed predictable or capable of scheduling, or because they need only "some" and not "total" assistance.*fn128

The City objects to the scope of the injunction, arguing that it is improper to prevent the reduction or termination of care in all cases as plaintiffs do not allege that all reductions or terminations of care are improper. The City argues that it should only be enjoined from reductions or terminations on the basis of reasons that the Court has found likely constitute a violation of law. Similarly, the City believes it should not be required to reinstate split-shift care in all cases.*fn129

As the Second Circuit has recently explained, Rule 65(d) provides that "[e]very order granting an injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail -- and not by referring to the complaint or other document -- the act or acts restrained or required." Fed. R. Civ. P. 65(d)(1). We have interpreted Rule 65(d) as requiring that "an injunction . . . be specific and definite enough to apprise those within its scope of the conduct that is being proscribed." S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001) (internal quotation marks omitted) . . .

Although a district court has "a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct," it is nonetheless "the essence of equity jurisdiction" that a court is only empowered "to grant relief no broader than necessary to cure the effects of the harm caused by the violation." Forschner Grp., Inc. v. Arrow Trading Co., 124 F.3d 402, 406 (2d Cir. 1997) (internal quotation marks omitted). We have instructed that injunctive relief should be "narrowly tailored to fit specific legal violations" Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 50 (2d Cir. 1996) (internal quotation marks omitted), and that the court must "mould each decree to the necessities of the particular case," Forschner Grp., 124 F.3d at 406 (internal quotation marks omitted).*fn130

In light of my obligation to craft an injunction narrowly tailored to fit the specific legal violations, and in light of my findings of fact and conclusions of law as detailed above, I enter the following injunction:

The City shall not reduce or terminate the split-shift care of any current recipient because: - the recipient needs only "some" assistance; - the recipient's needs can be predicted or scheduled; - the recipient's only medical needs are turning and positioning; - there has been a change in the recipient's medical condition, unless the City submits to the recipient a declaration, signed by a physician who has personally examined the recipient, that details a material change in the patient's condition and certifies that because of the change the recipient is no longer eligible for split-shift care; or because - there has been a mistake in a previous diagnosis or assessment, unless the City submits to the recipient a declaration, signed by a supervising LMD, that details the mistake in the previous diagnosis and explains how it occurred.

At the same time that it sends any recipient a notice terminating or reducing care as a result of a previous mistake or change in medical condition, the City shall forward to plaintiffs' counsel a copy of the notice. The City shall redact from the copy any personal identifying information.

The State shall, within thirty days of this order, publicly issue written clarification regarding the proper interpretation and application of the regulation with respect to the availability of split-shift care for needs that are predicted and for patients whose only nighttime need is turning and positioning.

Plaintiffs have also asked that I order defendants to reinstate split-shift care for all recipients who have lost it since 2011. However, it is likely that at least some of those recipients did not request fair hearings because they agreed or did not object to the City's determination. The parties have not submitted sufficient information for me to direct relief as to all people who lost split-shift services. The parties are therefore instructed to meet and confer and then to submit letters to the Court with recommendations regarding appropriate relief for this group of people.

VI. CONCLUSION

For the reasons stated above, plaintiffs' motion for a preliminary injunction is granted in part. I decline to order the reinstatement of split-shift care to all those whose services have been reduced or terminated, pending additional submissions by the parties. A conference is scheduled for September 10, 2012 at 4:00 p.m.

SO ORDERED.


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