United States District Court, E.D. New York
GEMMA SAMELE, SELMA ROHER by her next friend MELANIE ROHER, and S ALVATORE GUAD AGNA, individually and on behalf of all persons similarly situated, Plaintiffs,
HOWARD ZUCKER, as Commissioner of the New York State Department of Health, Defendant.
York Legal Assistance Group Attorneys for the Plaintiffs By:
Benjamin Wait Taylor, Esq., Elizabeth A. Jois, Esq., Julia
Grossman Russell, Esq., Jane Greengold Stevens, Esq., Of
of the New York State Attorney General Attorneys for the
Defendant By: Dorothy O. Nese, Assistant Attorney General
MEMORANDUM OF DECISION & ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE.
Plaintiffs Gemma Samele ("Samele"), Selma Roher
("Roher"), And Salvatore Guadagna
("Guadagna") (the "Plaintiffs") commenced
this putative class action against the Defendant Howard
Zucker ("Zucker," or the "Commissioner"),
as Commissioner of the New York State Department of Health
("DOH"), alleging that the Defendant violated the
Medicaid Act 42 U.S.C. § 1396 et seq.; the
Americans with Disabilities Act (the "ADA"), 42
U.S.C. § 12131 et seq.\ Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794; and the Due Process
Clause of the Fourteenth Amendment of the U.S. Constitution.
before the Court is a motion to dismiss by the Defendant
pursuant to Federal Rule of Civil Procedure ("Fed. R.
Civ. P." or "Rule") 12(b)(1) and Rule
12(b)(6), as well as a motion by the Plaintiffs to certify
the case as a class action pursuant to Rule 23. For the
following reasons, the Defendant's motion is granted in
part and denied in part, and the Plaintiffs' motion is
denied without prejudice with leave to renew.
The Relevant Facts
Plaintiffs are all Medicaid and Medicare recipients, and
current or former enrollees of GuildNet, a New York State
managed long-term care plan ("MLTCP"), that
provides home care services throughout New York State.
Commissioner required the Plaintiffs to enroll in a MLTCP in
order to receive long-term services funded by Medicaid.
about March 20, 2017, GuildNet sent a letter (the "March
2017 Letter") informing its enrollees in Nassau,
Suffolk, and Westchester counties that it would not be
offering managed long term care ("MLTC") services
beginning June 1, 2017. Enrollees were told that they should
select a new MLTCP before May 18, 2017 to assure a smooth
transition, and that they would continue to receive services
from GuildNet until the transfer to the new plan was
Plaintiffs allege that the DOH did not require other MLTCPs
to offer the same level of care that they had received from
GuildNet, or to provide notice before reducing care.
Commissioner apparently received a number of complaints from
GuildNet enrollees about the March 20 Letter, and in May
2017, Zucker sent a new letter to GuildNet enrollees (the
"May 2017 Letter") advising them that they did not
need to transfer to a new plan by June 1. The
Commissioner's letter further stated that
the State requires GuildNet to continue providing your
existing services until a smooth transfer can be completed to
your new plan of choice. You can contact New York Medicaid
Choice (NYMC) for information about plans available to you
and assistance with enrolling in a new plan. All plans
provide the same core services and benefits.
(Ex. B. to Am. Compl.).
received 24-hour home care services from GuildNet since 2012.
After Samele received the March 20 Letter, her son began
looking for an MLTCP that would provide her with the same
level of care as GuildNet. On September 1, 2017, Samele
enrolled in Elderplan HomeFirst ("Elderplan"),
which agreed to provide her with 24-hour home care. Elderplan
apparently closed in several counties in 2016, and announced
that it intends to close in Suffolk County
"imminently." (Am. Compl. ¶ 180). Samele has
received 24-hour home care since the March 20 Letter.
received 24-hour home care from GuildNet beginning in October
2016. After she received the March 20 Letter, her daughter
contacted other MLTCPs. On or about November 1, 2017, Roher
enrolled in Wellcare, which offered her 24 hour home care.
Roher has received 24-hour home care since the March 20
received 24-hour live-in care, as well as Adult Day Health
Care ("ADHC"). He attended the Adult Day Health
Care program one day a week, and received medical model adult
day health services, including physical therapy, occupational
therapy, and a bath. After receiving the March 2017 Letter,
Guadagna's daughter reached out to MLTCPs to find one
that would offer the same services as GuildNet. At the time,
he was temporarily residing in a rehabilitation center where
he was recovering from an episode of gout. On May 1, 2017, he
enrolled in Northwell. Northwell offered Guadagna 24-hour
live-in care, but did not approve his ADHC services. As a
result, Guadagna came home from the rehabilitation center on
or about May 1, 2017. Guadanga has not received occupational
therapy or physical therapy since he transferred to
Northwell, and has not had a proper bath or shower since that
time. On November 1, 2017, Guadanga transferred to Agewell.
Agewell also agreed to provide 24-hour care, but did not
agree to provide ADHC services. On December 19, 2017, the
Commissioner sent a letter to Guadagna informing him that it
had directed Agewell to restore his services to the level he
received from GuildNet. The services would have to continue
for 120 days, or until he agreed to a new plan of care.
September 22, 2017, after the Plaintiffs initiated this
action, the Commissioner issued MLTC Policy 17.02: MLTC Plan
Transition Process-MLTC Market Alteration (the
"Transition Policy"), which updated the DOH's
transition policy. The Transition Policy was sent to all
MLTCP providers in New York State, and was posted on the DOH
to the Transition Policy, MLTCPs must send notices to
affected consumers when they intend to discontinue
operations. The notices must list available plans; a
direction to select a new plan within sixty days of the date
of the letter; and state that any enrollee who does not
select a new plan within that time frame will be
automatically assigned to a new MLTCP. The DOH will review
notices prior to their transmittal, and will require Maximus,
a DOH contractor, to send out additional notices to affected
enrollees to help them select a new MLTCP. The new MLTCP must
provide enrollees with the same level of services that they
previously received for 120 days. During that 120 days, the
MLTCP must conduct a new assessment of the enrollee to
determine their plan and services.
September 25, 2017, Maximus began sending "Outreach
Letters" to affected GuildNet enrollees. The Outreach
Letters were drafted by the DOH. The first Outreach Letter
told current GuildNet members who were concerned about
maintaining their current service levels to remain with
GuildNet until the Transition Policy is in place. As to those
former GuildNet enrollees who were receiving fewer services
with a new MLTCP than they had with GuildNet, the letter
instructed them to contact New York Medicaid Choice
("NYMC") within ninety days. NYMC would then
determine whether those individuals were eligible to have
their previous services restored. Individuals would be so
eligible if they left GuildNet after March 20, 2017; were
still eligible for Medicaid; and received fewer hours of care
and services from their current MLTCP than they had under
October 16, 2017, Maximus sent the second Outreach Letter to
individuals who were still enrolled in GuildNet. The letter
stated that the DOH had finalized the Transition Policy.
GuildNet enrollees had sixty days to select a new MLTCP. If
they did not select a new plan by December 15, 2017, one
would be selected for them, and their enrollment would be
effective on January 1, 2018. The new MLTCP would provide the
same level of services for 120 days after the transfer date,
unless the enrollee and the plan agreed to a different plan
before that time. The letter included a list of MLTCPs
available in the Medicaid recipient's area, and told the
recipient to call NYMC to select an MLTCP.
November 30, 2017, Maximus sent the third Outreach Letter to
affected current and former GuildNet enrollees. The third
Outreach Letter referenced the first two Outreach Letters and
reminded current and former GuildNet enrollees of their
rights to maintain the levels of care they received from
GuildNet, and of the impending deadlines outlines in the
first two Outreach Letters.
6, 2017, Samele, along with former Plaintiffs Marie Turano
and Leonard Turano, commenced this action by filing a
complaint. The original complaint alleged violations of the
Medicaid Act, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, the ADA, and the
Rehabilitation Act. The original complaint sought an order
certifying the action as a class action; declaratory and
injunctive relief; costs; and attorneys' fees.
August 3, 2017, the Defendants filed an answer to the
August 31, 2017, the original Plaintiffs filed a motion to
amend the complaint pursuant to Rule 15 to add additional
Plaintiffs and additional facts. On November 4, 2017, the
Court granted the Plaintiffs' motion to amend their
amended complaint added Roher and Guadagna as Plaintiffs. The
amended complaint alleged the same violations as the original
complaint, and sought the same types of relief. Specifically,
the Plaintiffs seek an order declaring that the
Commissioner's failure to ensure that the Plaintiffs
would have their long-term benefits maintained at current
levels unless and until they have notice and a fair hearing
to challenge any proposed reduction or termination violates
the Medicaid Act and the Due Process Clause; the
Commissioner's failure to ensure that Plaintiffs would
not have their long-term care benefits reduced or terminated
based on non-individualized criteria when GuildNet terminates
its services in their counties violates the Due Process
Clause; and that his failure to ensure that Plaintiffs
maintain their long-term care benefits during an involuntary
transfer to a new MLTCP threatens to result in unnecessary
institutionalization of class members, in violation of the
ADA and the Rehabilitation Act.
end, the Plaintiffs seek an order enjoining the Defendant to
ensure that the Plaintiffs continue to receive long-term care
benefits at their current levels unless and until they
receive notice and a fair hearing to challenge any proposed
reduction or termination; to ensure that class members who
are former GuildNet enrollees currently receiving fewer
services than they received from GuildNet be restored their
previous levels of care unless and until they are provided
with notice and a fair hearing to challenge the reduction;
and to ensure that GuildNet provides continuous coverage to
its enrollees at their current level of care until they
transition to a new MLTCP that provides the same level of
November 21, 2017, former Plaintiffs Marie Turano and Leonard
Turano voluntarily dismissed their claims against the
Defendants pursuant to Rule 4l(a)(1)(A)(ii), and they were
removed as Plaintiffs from the action.
December 1, 2017, the Plaintiffs filed their motion for class
certification pursuant to Rule 23.
December 21, 2017, the Defendants filed their motion to
dismiss for lack of jurisdiction pursuant to Rules 12(b)(1)
the Defendant's motion to dismiss was made by
cross-motion, it will be addressed first, since a disposition
in the Defendant's favor would render the Plaintiffs'
motion for class certification moot.
As to the Defendant's Motion to Dismiss for Lack of
Subject Matter Jurisdiction
The Parties' Arguments
Defendant contends that Samele and Roher's claims are not
ripe for review because they have not suffered an injury in
fact in that their services were never terminated or reduced.
Further, the Commissioner argues that all of the
Plaintiffs' claims are moot because the Plaintiffs have
already been given all of the relief that they seek because
the series of letters sent by the DOH and Maximus state that
all GuildNet enrollees must receive the same level of care
when they transfer to a new MLTCP for 120 days.
other hand, the Plaintiffs assert that all of the
Plaintiffs' claims are ripe, and that the Plaintiffs
therefore have standing, because the DOH never sent a
constitutionally and statutorily mandated notice to the
Plaintiffs. The Plaintiffs contend that the
Commissioner's failure to send such a notice, and the
Plaintiffs' risk of having their services reduced or
being institutionalized, constitute an injury in fact. As to
the Defendants' mootness argument, the Plaintiffs contend
that their claims are not moot because the DOH did not send a
notice to GuildNet enrollees who lost care, and has not
mandated that such notices be sent when an MLTCP intends to
discontinue service in an area.
The Legal Standard
motion to dismiss pursuant to Rule 12(b)(1), a court must
dismiss a claim if it "lacks the statutory or
constitutional power to adjudicate it." Morrison v.
Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008) (internal quotation marks omitted), aff'd,
561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010).
plaintiff bears the burden of proving subject matter
jurisdiction by a preponderance of the evidence."
Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005).
deciding a Rule 12 motion to dismiss, the Court "must
take all facts alleged in the complaint as true and draw all
reasonable inferences in favor of plaintiff,"
Morrison, 547 F.3d at 170 (quoting Natural Res.
Def. Council v. Johnson,461 F.3d 164, 171 (2d Cir.
2006) (citation and internal quotation marks omitted)), but
"jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences
favorable to the party asserting it," id.
(quoting APWU v. Potter,343 F.3d 619, 623 (2d Cir.
2003)). In deciding the motion, the court "may consider
affidavits and other materials beyond the pleadings to
resolve the jurisdictional issue, but [it] may not rely on
conclusory or hearsay statements contained in the
affidavits." J.S. ex rel. N.S. v. Attica Cent.
Schs.,386 F.3d 107, 110 (2d Cir. 2004); see also
Makarova v. United States,201 F.3d ...