Bellin v. Zucker

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Carney, Circuit Judge
• Citation: Bellin v. Zucker, 6 F.4th 463 (2nd Cir. 2021)
• Decision Date: 29 July 2021
• Docket Number: August Term, 2020,Docket No. 20-1463
• Parties: Rosalind BELLIN, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. Howard A. ZUCKER, M.D., J.D., in his official capacity as Commissioner, New York State Department of Health, ElderServe Health, Inc., dba RiverSpring at Home, Defendants-Appellees.

6 F.4th 463

Rosalind BELLIN, on behalf of herself and all others similarly situated, Plaintiff-Appellant,

v.Howard A. ZUCKER, M.D., J.D., in his official capacity as Commissioner, New York State Department of Health, ElderServe Health, Inc., dba RiverSpring at Home, Defendants-Appellees.

Docket No. 20-1463

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: December 11, 2020

Decided: July 29, 2021

Aytan Y. Bellin (Nina Keilin, Law Office of Nina Keilin, New York, NY, on the brief), Bellin & Associates LLC, White Plains, NY, for Plaintiff-Appellant Rosalind Bellin.

Caroline A. Olsen, Assistant Solicitor General of Counsel, Barbara D. Underwood, Solicitor General, New York State Office of the Attorney General, New York, NY, for Defendant-Appellee Howard A. Zucker.

Brian T. McGovern (Mara R. Lieber, on the brief), Crowell & Moring LLP, New York, NY, for Defendant-Appellee ElderServe Health, Inc., DBA RiverSpring at Home.

Martha Jane Perkins and Sarah Somers, National Health Law Program, Chapel Hill, NC; Alice Bers, Center for Medicare Advocacy, Willimantic, CT, for National Health Law Program, Center for Medicare Advocacy, and Justice in Aging, Amici Curiae in support of Plaintiff-Appellant Rosalind Bellin.

Benjamin W. Taylor, New York Legal Assistance Group, New York, NY, for Empire Justice Center and New York Legal Assistance Group, Amici Curiae in support of Plaintiff-Appellant Rosalind Bellin.

Before: Pooler, Wesley, and Carney, Circuit Judges.

Carney, Circuit Judge:

Plaintiff-Appellant Rosalind Bellin brings this 42 U.S.C. § 1983 action on behalf of herself and a putative class of similarly situated Medicaid beneficiaries. She alleges that managed long-term care plans ("MLTCs") that contract with New York State violate Medicaid beneficiaries’ rights under the Due Process Clause of the Fourteenth Amendment by denying them the right to appeal initial determinations of the personal care services hours the MLTCs will provide them if they choose to enroll. Bellin also alleges that beneficiaries are entitled to this appeal right, and to notice of the right, under federal Medicaid statutes. Bellin brings her claims against Defendant-Appellee ElderServe Health, Inc. (d/b/a RiverSpring at Home) ("RiverSpring"), an MLTC that she alleges denied her these rights, and Defendant-Appellee Howard A. Zucker, in his official capacity as Commissioner of the New York State Department of Health (the "State"), for his alleged failure to enforce these rights.

The district court (Hellerstein, J. ) granted Defendants-Appellees’ motions to dismiss Bellin's complaint, concluding that the federal statutes do not provide Medicaid beneficiaries with a right to appeal initial personal care services hours determinations. It dismissed Bellin's due process claims after concluding that Bellin did not plausibly allege a constitutionally protected property interest in an MLTC's initial determination of a particular number of care hours. We agree that the federal statutes do not guarantee the appeal right Bellin asserts, but we conclude that the district court's dismissal of Bellin's due process claims was premature.

When the State determines that a New York Medicaid beneficiary like Bellin is eligible on a long-term basis for in-home assistance with personal care needs, the administrative scheme provides that the beneficiary then contacts one or more MLTCs for an evaluation. After the evaluation, each MLTC determines how many hours of care it will provide per week as an initial matter if the beneficiary chooses to enroll in its program. The current administrative regime establishes no mechanism for beneficiaries to appeal the MLTCs’ initial care hours determinations. If a beneficiary receives offers for care hours that are in her view insufficient, she has no choice but to enroll and begin receiving care at an inadequate level (perhaps supplementing state-covered care with private care pending any later adjustment). After beginning care with an MLTC, she may request additional care hours. She then waits for the MLTC to rule on the request. If her request is accepted, she begins receiving care at the adjusted level, having done without or paid privately for care in the interim. If the adjustment is denied, she may internally appeal to the MLTC. If the appeal fails, she has recourse to an appeal in the form of a New York State "fair hearing," under the State's Medicaid regulations.

Bellin plausibly alleged that MLTCs’ discretion in making initial personal care hours determinations is meaningfully channeled by contract, regulation, and related authorities such that beneficiaries have a constitutionally protected property interest in the number of hours an MLTC initially determines they are entitled to receive. Records from fair hearings in Bellin's case and others lend further support to the view that, at least in some cases, New York State is able to determine based on MLTCs’ assessment records that a beneficiary is entitled to a particular number of care hours above what the MLTC initially determined.

We therefore vacate the district court's dismissal of Bellin's due process claims and remand for further consideration of the limits on MLTCs’ discretion in making initial determinations of personal care hours, as well as for consideration of whether the current system adequately protects any property interest beneficiaries may have in those care hours. We reject Bellin's federal statutory claims.

The district court's judgment is AFFIRMED with respect to Bellin's federal law claims, VACATED with respect to Bellin's due process claims, and the action is REMANDED for further proceedings consistent with this Opinion.

BACKGROUND

I. Bellin's Application for Personal Care Services

Rosalind Bellin is a woman in her early 80s who lives alone in the Bronx, New York. She suffers from several serious illnesses that limit her ability to care for herself independently. In 2019, believing that she needed in-home care 24 hours a day, Bellin applied for personal care services through the joint federal-state health care program commonly known as Medicaid. See 42 U.S.C. § 1396 et seq.

In Medicaid jargon, the term "personal care services" refers to in-home assistance with personal care that is provided to people whose health conditions might otherwise require that they reside in a nursing home.¹ In New York State, personal care services for individuals like Bellin are provided by MLTCs, entities that act under contract with the State. See N.Y. Pub. Health Law § 4403-f(7)(b). Under New York law, the State pays each MLTC a fixed sum—a "capitation"—for each beneficiary that it enrolls. Jt. App'x 16. Each MLTC bears the financial risk that the cost of a beneficiary's care will exceed the capitation amount.²

When a Medicaid beneficiary seeks personal care services,³ she is first evaluated by New York's Conflict-Free Evaluation and Enrollment Center ("CFEEC"), a single, state-wide organization charged with determining whether the beneficiary is qualified to receive such services.⁴ Bellin was evaluated by the CFEEC and determined eligible to receive personal care services.⁵

Once determined eligible, a beneficiary has 75 days to enroll with an MLTC.⁶ She may apply to one MLTC or many.⁷ Each MLTC applied to by the beneficiary must conduct a "comprehensive assessment" of the beneficiary's "medical, social, cognitive, and environmental needs," relying in large part on the State's Uniform Assessment System ("UAS" or "assessment system"). N.Y. Pub. Health Law § 4403-f(7)(g)(i) ; N.Y. STATE DEP'T OF HEALTH, MLTC POLICY 13.09: TRANSITION OF SEMI-ANNUAL ASSESSMENT OF MEMBERS TO UNIFORM ASSESSMENT SYSTEM FOR NEW YORK (Apr. 26, 2013), https://www.health.ny.gov/health_care/medicaid/redesign/mltc_policy_13-09.htm (last visited July 8, 2021) (requiring MLTCs to use the assessment system). The assessment is performed in the beneficiary's home by a registered nurse. It produces a "Nursing Facility Level of Care" ("NFLOC" or "Level of Care") score; the higher the score, the greater the beneficiary's need for care. Based on the results of the assessment, the MLTC determines the services it will provide, including the number of daily hours of personal care services, if the beneficiary chooses to enroll with that MLTC.

In April 2019, Bellin contacted RiverSpring after another MLTC gave her a care hours determination that she felt was too low. On May 8, a registered nurse from RiverSpring assessed Bellin's personal care services needs using the assessment system. The RiverSpring nurse concluded that Bellin required eight hours of care services daily. When the nurse told Bellin that this was her recommendation, Bellin's daughter protested on Bellin's behalf, arguing that Bellin required substantially more hours of daily care. Still, one week later, on May 15, Bellin's daughter formally requested enrollment with RiverSpring. Bellin began receiving personal care from RiverSpring in her home, eight hours per day, on June 1, two weeks after she requested enrollment.

II. Bellin's Appeal Attempts

Before she began receiving RiverSpring's personal care services, Bellin tried to appeal the initial determination that she was entitled to eight hours of personal care services per day and no more. On May 22, 2019, Bellin's attorney contacted RiverSpring asking to appeal its initial determination. RiverSpring responded that Bellin could not then appeal because Bellin was not yet enrolled in RiverSpring. She would be "enrolled" and able to appeal only after June 1, when her care began, they advised.

On June 3, Bellin's attorney again contacted RiverSpring about appealing the initial determination. RiverSpring responded by letter dated June 4, entitled "NOTICE OF NON-CONSIDERATION OF APPEAL." Jt. App'x 22. The June 4 letter said that Bellin's "request for an appeal regarding the personal care [services] hours assigned at enrollment" could not be processed because "an Initial Adverse Determination (IAD)...