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Sindy Cohen v. Vincent Cannavo

September 12, 2012

SINDY COHEN,
PLAINTIFF,
v.
VINCENT CANNAVO, IN HIS OFFICIAL CAPACITY AS PROGRAM DIRECTOR OF THE ADULT CARE FACILITY PROGRAM OF THE METROPOLITAN AREA REGIONAL OFFICE OF THE NEW YORK STATE DEPARTMENT OF HEALTH, AND NIRAV R. SHAH, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH,
DEFENDANTS.



The opinion of the court was delivered by: J. Paul Oetken, District Judge:

MEMORANDUM OPINION AND ORDER

The New York State Department of Health regulates the State's 450 adult care facilities, conducting inspections, finding violations of law, and requiring corrective actions by the facilities. A facility's residents are generally not included in the Department's enforcement scheme"although they may file complaints against a facility, triggering an investigation by the Department, and they are often affected by the Department's findings and directives. This case presents the question whether the residents of adult care facilities have a procedural due process right to participate in the agency proceedings when a facility contests an unfavorable determination by the Department.

Plaintiff Sindy Cohen, a resident of Elm York Home for Adults in East Elmhurst, New York, filed this lawsuit under 42 U.S.C. § 1983, alleging violations of her constitutional rights to due process by Defendant Vincent Cannavo, in his official capacity as Program Director of the Adult Care Facility Program of the Metropolitan Area Regional Office ("MARO") of the New York State Department of Health (the "Department"), and against Nirav R. Shah, in his official capacity as Commissioner of the Department. Defendants now move to dismiss this claim due to Plaintiff's lack of standing and for failure to state a claim on which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the Court holds that Plaintiff does have standing to bring this case, but that her claim fails on the merits. Accordingly, Defendants' motion to dismiss is granted.

I. Background

A. Regulatory Background

The New York State Constitution provides that

[t]he care and treatment of persons suffering from mental disorder or defect and the protection of the mental health of the inhabitants of the state may be provided by state and local authorities and in such manner as the legislature may from time to time determine. The head of the department of mental hygiene shall visit and inspect, or cause to be visited and inspected by members of his or her staff, all institutions either public or private used for the care and treatment of persons suffering from mental disorder or defect. N.Y. Const. art. XVII, § 4.

New York's Social Services Law ("SSL") requires the Department to oversee the approximately 450 adult care facilities in New York State. See SSL § 461-a(1). Pursuant to those duties, the Department must conduct unannounced inspections of each facility every 12 or 18 months (depending on the facility's "rating"). Id. § 461-a(2). The Department is also required to establish procedures for "complaint inspections"-investigations undertaken in response to complaints raised by the adult home residents. Id. § 461-o.

The Department has promulgated regulations setting forth certain procedures for inspections. See N.Y. Comp. Codes R. & Regs. tit. 18 ("18 NYCRR"), § 486.2. After an inspection is completed, the Department must submit a written report to the home's operator, identifying any areas that are in violation of applicable requirements, and providing directions "as may be appropriate as to the manner and time in which compliance with applicable requirements of law or regulations shall be effected." Id. § 486.2(i). The home then has thirty days to correct the violations or, if correction requires more than thirty days, to submit an "acceptable plan for correction." Id. § 486.2(j). The home operator must post the inspection report for the most recent complete inspection "conspicuously in a public area of the facility which is accessible to residents and visitors." Id. § 486.2(l). The regulations also provide that "[a]fter a complaint investigation has been completed, the [D]department shall advise the complainant of the findings and corrective action, if any. However, a complainant shall not be advised of the outcomes of an investigation which is being contested by an operator or when civil or criminal action might be compromised by such notice." Id. § 486.2(o).

The regulations do not provide any formal procedural rules for when an "investigation . . . is being contested by an operator," which the parties in this case refer to as an Investigation Review Process ("IRP"). Id. The Complaint ("Comp.") alleges (and Defendants do not appear to contest) that the IRP is a "closed-door appellate proceeding at which the facility could lobby Defendants to reverse, rescind, and/or revise their findings and the correction action" ordered after a complaint inspection. (Comp. ¶ 6.) In other words, representatives of the Department, and the adult home operator and its counsel may participate in the IRP; the complaining resident is not permitted to participate. The Complaint also alleges that an adult home that has requested an IRP need not take the corrective action ordered by the Department until the IRP is completed and Defendants make a final determination on the appeal. (Comp. ¶ 59.)

The Complaint alleges that the Department may revise a statement of deficiencies and corrective order as a result of an IRP, and may do so without reversing the findings against the adult home made through the complaint investigation. The Complaint further alleges that "it is Defendants' policy to withhold from Plaintiff and other adult home residents all details regarding the precise corrective action ordered by the Department as a result of a substantiated complaint investigation." (Comp. ¶ 78.) Thus, "Plaintiff and other adult home residents have no opportunity to learn about changes to corrective action orders made after an initial inspection report is issued by" the Department. (Comp. ¶ 80.)

The regulations provide that the Department "may undertake enforcement action against any operator of an adult care facility who fails to operate the facility in compliance with applicable provisions of law and regulation." 18 NYCRR § 486.1(d). The regulations give the Department fairly wide discretion in choosing the appropriate enforcement action. The options include, but are not limited to:

(1) issuance of notice of intention to initiate enforcement; (2) conduct of hearings to determine if an operator has failed to comply with applicable law and regulation;

(3) determination, after hearing, that civil penalties should be imposed;

(4) determination, after hearing, to revoke, suspend or limit an operating certificate;

(5) issuance of a commissioner's order, or an order approved by a justice of the Supreme Court, requiring an operator to immediately remedy conditions dangerous to residents;

(6) temporary suspension or limitation of an operating certificate upon finding that resident health and safety are in imminent danger;

(7) request to the Attorney General to seek an injunction against an operator for violations or threatened violations of law or regulation; or

(8) request to the Attorney General to take such action as is necessary to collect civil penalties, seek criminal prosecution, or to bring about compliance with any outstanding hearing determination or order.

Id. § 486.4(b).

The Social Security Law also expressly provides certain statutory rights to residents of adult homes. Each home is required to enter into a written admission agreement with a prospective resident that sets forth all charges, expenses, and other assessments, and enumerates all "services, materials, equipment and food which such operator agrees to furnish and supply to such resident during the period of residency." SSL § 461-c(2). The statute expressly provides that there is an implied warranty of habitability in each written admission agreement, and provides a private right of action to a resident for breach of the admission agreement or the warranty of habitability. Id. § 461-c(2-a).

B. Facts*fn1

This claim stems from alleged violations of Plaintiff's rights by Elm York, the adult care facility in which she is a resident. On March 14, 2001, Plaintiff filed a complaint with the Department about these alleged violations. Specifically, Plaintiff alleged that Elm York's administrator violated her rights by: pressuring Ms. Cohen into signing complex financial documents that had the effect of liquidating an Individual Retirement Annuity ("IRA") that had been established for her benefit before she entered the facility; confiscating Ms. Cohen's ...


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