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Scofero v. VNA Homecare Options, LLC

United States District Court, W.D. New York

July 21, 2017

JOSEPH SCOFERO, Plaintiff,
v.
VNA HOMECARE OPTIONS, LLC; SAMUEL D. ROBERTS, in his official capacity as Commissioner of the New York State Office of Temporary and Disability Assistance; and HOWARD ZUCKER, in his official capacity as Commissioner of the New York State Department of Health, Defendants.

          DECISION AND ORDER

          HONORABLE MICHAEL A. TELESCA United States District Judge.

         INTRODUCTION

         Represented by counsel, Joseph Scofero (“Plaintiff”) instituted this action pursuant to the Due Process clause of the Fourteenth Amendment to the U.S. Constitution, Title XIX of the Social Security Act (42 U.S.C. §§ 1396-1396w-5 (“the Medicaid Act”)), and Article 2 of the New York Social Services Law, to enforce a Medicaid “fair hearing” decision that ordered VNA Homecare Options LLC. (“VNA”) to enroll Plaintiff in its Community Based Managed Long Term Care Program and authorize 24-hour care at discharge. The Court has jurisdiction over this matter pursuant to, inter alia, 28 U.S.C. § 1331.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         I. The Parties

         Plaintiff is a 70-year-old Medicaid beneficiary. As the result of suffering a stroke in January 2015, Plaintiff is paralyzed on the left side of his body and is unable to walk on his own. He currently resides at Brighton Manor, a skilled nursing facility located in Monroe County, New York, where he receives 24-hour medical care. Plaintiff owns a house in Wayne County, New York, and wishes to return home. The parties all agree that if Plaintiff were to return home, he requires 24-hour care.

         Howard Zucker is Commissioner of the New York State Department of Health (“DOH”) and is charged with administering the New York State Medicaid program consistent with the federal Medicaid Act. Samuel D. Roberts is the Commissioner of the New York State Office of Temporary and Disability Assistance (“OTDA”) and is responsible for the administration of, inter alia, Medicaid fair hearings and ensuring compliance with fair hearing decisions.

         VNA operates a Medicaid Managed Long Term Care (“MLTC”) Plan under a Certificate of Authority from DOH. As an MLTC Plan, VNA arranges for, inter alia, long term care services, on a capitated basis in accordance with New York Public Health Law (“NYPHL”) § 4403-f, for non-dual eligible individuals, aged 18 years and older, who have been assessed as eligible for nursing home level of care at the time of enrollment and also assessed as needing community based long term care services for more than 120 days.[1] As a DOH contractor, VNA is required to, among other things, maintain and demonstrate to DOH's satisfaction, a sufficient and adequate network for the delivery of all covered services. VNA provides care management services to its enrollees, but does not directly provide hands-on care to such enrollees. Rather, the MLTC Plan arranges, through a network of contracted providers, for the provision of covered services. Pursuant to the MLTC Model Contract, VNA is required to have a minimum of two providers that are accepting new Plan enrollees in each county in its service area for each covered service in the benefit package.[2]

         II. Plaintiff's Pursuit of 24-Hour In-Home Care

         On April 12, 2016, Plaintiff was assessed by Lori McPhee (“McPhee”), an enrollment nurse with VNA, who noted that Plaintiff used a wheelchair due to left side flaccid hemiplegia, and was unable to lift his left arm independently. McPhee evaluated Plaintiff's status in various domains of functioning and opined that he required maximal assistance in managing his medications, dressing his lower body, transferring to the toilet, using the toilet, and getting in and out of bed; and extensive assistance in bathing and dressing his upper body.

         By letter dated April 14, 2016, VNA informed Plaintiff that he had been “found to be ineligible” for enrollment in the MLTC Plan because he was “incapable of returning to or remaining in [his] home and community without jeopardy to [his] health or safety.” On May 27, 2016, VNA sent Plaintiff a second letter (Dkt #10-1, pp. 28-29 of 30) indicating that New York Medicaid Choice (“Maximus”), DOH's conflict-free evaluator, had been notified of the MLTC Plan's determination and would make the final determination on enrollment.

         On June 15, 2016, Maximus informed Plaintiff by letter that it was affirming VNA's decision to deny his enrollment in the MLTC Plan because “[t]he plan showed proof that they cannot ensure [his] physical safety while providing services.”

         III. The Medicaid Fair Hearing

         On August 10, 2016, Plaintiff requested a Medicaid fair hearing to challenge the denial of enrollment by VNA, and Maximus' affirmance of that denial. Following a hearing on December 23, 2016, an administrative law judge (“the ALJ”) issued a decision on January 18, 2017 (“the Fair Hearing Decision”) (Dkt #10-1, pp. 12-23 of 30), reversing VNA's determination to deny Plaintiff enrollment in the MLTC Plan.

         On February 1, 2017, Plaintiff's attorney representative at the fair hearing filed a Request for Compliance with OTDA. By letter dated February 14, 2017, OTDA notified Plaintiff that “the Agency [VNA] has taken appropriate action to comply with the directives of [the Fair Hearing Decision][, ]” and OTDA therefore “will regard this matter as satisfactorily resolved . . . .” (Dkt #3-7, p. 30 of 34).

         Meanwhile, VNA filed a Request for Reconsideration (Dkt #10-1, pp. 1-11 of 30) with OTDA on February 7, 2017, seeking reversal of the Fair Hearing Decision on the grounds that the ALJ erred as a matter of law in her interpretation of the regulatory notice requirements and application of the regulatory burden of proof. VNA also argues that the ALJ made a medical determination she was unqualified to make regarding Plaintiff's enrollment in the Plan. On July 17, 2017, OTDA sent a letter to Plaintiff's attorney representative at the fair hearing, Ross Pattisson, Esq., advising him of VNA's Request for Reconsideration and stating that if he wishes to respond on Plaintiff's behalf, he must do so by August 1, 2017. The letter notes that “the original decision remains in effect.”[3]

         On February 9, 2017, VNA pre-enrolled Plaintiff in the MLTC Plan effective March 1, 2017, and authorized 24-hour in-home care. On April 3, 2017, a VNA representative contacted nine different home-care service providers; on April 12, 2017, a VNA representative contacted a tenth provider; and on June 23, 2017, a VNA representative re-contacted six of the foregoing ten service providers, as well as three new providers. (See Dkt #11, pp. 3-4 of 6). All of these agencies declined to provide services. On June 26 and 27, 2017, a VNA representative re-contacted five of the previously contacted providers that provide services in Wayne County. However, VNA indicates, none of these agencies would accept ...


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