Blue v. Koren
| Decision Date | 26 December 1995 |
| Docket Number | No. 1566,D,1566 |
| Citation | 72 F.3d 1075 |
| Parties | , 49 Soc.Sec.Rep.Ser. 716, Medicare & Medicaid Guide P 43,961 Evelyn BLUE, d/b/a New Paltz Nursing Home, Plaintiff-Appellee, v. Mary Jane KOREN, M.D.; K. Michele Dulemba; Patricia Cooney, R.N.; Barbara E. Brooks, R.N.; Barbara Rosenfield; and Mykola Lawrynenko, Defendants-Appellants. ocket 94-9169. |
| Court | U.S. Court of Appeals — Second Circuit |
Susan L. Watson, New York City (Dennis C. Vacco, Attorney General of the State of New York, Kathie Ann Whipple, Acting Bureau Chief, Litigation Bureau, Michael S. Popkin, Assistant Attorney General, of counsel), for Defendants-Appellants.
Bradley L. Kelly, Washington, DC (Donald L. Bell, II, Washington, D.C., Proskauer Rose Goetz & Mendelson LLP, Washington, DC, of counsel), for Plaintiff-Appellee.
Before: WINTER, CALABRESI and CABRANES, Circuit Judges.
Various current and former employees of the New York State Department of Health (collectively "DOH") appeal from Judge Goettel's denial of their motion for summary judgment based in part on an assertion of qualified immunity. The appeal raises important questions concerning the constitutional rights of nursing home operators to limit inspections of their facilities by government health officials.
DOH is responsible for conducting inspections of nursing homes to insure compliance with pertinent state and federal regulations. Evelyn Blue d/b/a New Paltz Nursing Home ("New Paltz") brought this action under 42 U.S.C. Sec. 1983, alleging that DOH violated its constitutional rights by conducting unreasonable, duplicative and retaliatory inspections of New Paltz. DOH claims that it is entitled to qualified immunity from this action. We conclude that the inspections were not unconstitutionally unreasonable or duplicative. We also conclude that appellees have qualified immunity from the retaliation claim. We therefore reverse.
New Paltz is a seventy-nine bed nursing home located in New York state. As a participant in federal Medicare and Medicaid programs, it is subject to periodic inspections to insure compliance with Medicare and Medicaid regulations. DOH conducts these inspections, styled "certification surveys," on behalf of the federal Health Care Financing Administration ("HCFA"), a division of the Department of Health and Human Services.
In 1987, Congress passed the Federal Nursing Home Reform Act ("FNHRA"), contained in the Omnibus Budget Reconciliation Act of 1987, Pub.L. No. 100-203, Secs. 4201-4218, 1987 U.S.C.C.A.N. (101 Stat.) 1330, 1330-160 to -221 (codified at 42 U.S.C. Secs. 1395i-3, 1396r), which provides for the elaborate oversight and inspection of nursing homes that participate in Medicare and Medicaid programs. FNHRA requires that New Paltz, a participant in these programs, be subjected to an unannounced "standard survey" at least once every fifteen months. 42 U.S.C. Sec. 1395i-3(g)(2)(A). If a standard survey reveals that a nursing home is providing substandard care, the facility must undergo an "extended survey." 42 U.S.C. Sec. 1395i-3(g)(2)(B). In addition, "[a]ny other facility may, at the Secretary [of Health and Human Services'] or State's discretion, be subject to such an extended survey (or partial extended survey)." Id. Under survey guidelines authored by HCFA, the "survey team is not precluded from gathering information related to any requirement during the course of the Standard, Extended, or Partial Extended Surveys." Survey Protocol for Long Term Care Facilities, State Operations Manual, Appendix P (hereinafter "Survey Protocol") at 32. The requirements for certification include meeting certain standards in areas such as "quality of care" and "resident rights." 42 U.S.C. Secs. 1395i-3(g), 1396r(g); Survey Protocol, Task 5, at 12-26.
Underlying New Paltz's action is a claim that DOH conducted certain surveys in an oppressive fashion in order to retaliate against New Paltz for DOH's loss of a prior enforcement proceeding brought against New Paltz under the New York Public Health Law. In that proceeding, DOH had charged that New Paltz had violated state regulations with its use of naso-gastric tube feeding. The tube-feeding procedure involves insertion of a wide-bore (5-9 mm) tube through a patient's nose or mouth for one to three minutes for the purpose of feeding. DOH considered this practice medically unsound. Nevertheless, in a report dated June 8, 1990, a state administrative law judge ("ALJ") upheld the tube-feeding procedure.
In August 1990, before the ALJ's findings had become final, DOH conducted a survey of New Paltz. New Paltz describes that survey as a "favorable survey," and it is not challenged in the instant suit. On October 9, 1990, the ALJ's findings upholding the tube-feeding procedure became final when the Commissioner of Health formally adopted them. See 10 N.Y.C.R.R. Sec. 51.13. Thereafter, in February 1991, DOH conducted a survey as a "follow-up" to the August 1990 survey. The "follow-up" survey is also unchallenged in the instant suit.
In September 1991, DOH conducted a standard survey of New Paltz. The FNHRA and regulations promulgated thereunder had become effective after the 1990 surveys, and this was thus the first survey under the new federal regulatory regime. Five to six surveyors visited New Paltz over the course of five days, for a total of 28 or 29 surveyor days. New Paltz notes that the previous annual survey entailed only twelve surveyor days and that in the September 1991 survey DOH examined almost every patient, instead of a sample as suggested by federal guidelines. DOH thereafter conducted an extended survey of New Paltz on September 27 and 30, 1991, with two surveyors on site each day. Based on these surveys, DOH made numerous negative findings and cited New Paltz with several severe or "Level A" deficiencies, as well as several less serious or "Level B" deficiencies. Level A deficiencies can lead to termination of a nursing home's certification to participate in the Medicare and Medicaid programs.
In December 1991, DOH made an "interim visit" to determine whether the Level A deficiencies had been corrected. It found that they had not. As a result, HCFA took steps to terminate New Paltz's participation in the In September 1992, New Paltz brought the present action against DOH, alleging in its complaint that the surveys undertaken between September 1991 and January 1992 (collectively the "1991 surveys") were excessive in duration and scope and deviated from the procedures prescribed in federal guidelines. New Paltz claimed that the 1991 surveys constituted an unreasonable search in violation of the Fourth Amendment, a duplicative prosecution of the tube feeding issue, and retaliatory harassment for New Paltz's victory in the tube-feeding proceeding in violation of federal due process. DOH moved for summary judgment, contending that it had not violated New Paltz's constitutional rights and that, in any event, the individual appellants were entitled to qualified immunity. The district court denied the motion except with respect to a ground abandoned here, and DOH appealed. 1
Medicare and Medicaid programs. The action to decertify New Paltz for Medicare and Medicaid purposes was abated after a January 1992 "Credible Allegation" survey determined that sufficient remedial actions had been taken to insure compliance with the Level A requirements.
Public officials are entitled to immunity from damage actions "insofar as their conduct [did] not violate clearly established ... constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). However, in Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), the Supreme Court also stated, "a necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is ... whether the plaintiff has asserted a violation of a constitutional right at all." Thus, the Court held that a threshold inquiry in analyzing an assertion of qualified immunity is whether the plaintiff has alleged a constitutional violation. Id. at 232, 111 S.Ct. at 1793. We conclude that there has been no constitutional violation in the present matter with regard to the Fourth Amendment or due process duplicative prosecution claim. A due process violation is alleged as to the retaliation claim but appellees have qualified immunity.
In holding that DOH was not entitled to qualified immunity with respect to New Paltz's Fourth Amendment claim, the district court stated in general terms that the reasonableness of the 1991 surveys was a disputed issue to be resolved only by a trial. We disagree.
Whether a warrantless inspection or search of commercial premises is reasonable turns on: (i) whether there is a "substantial government interest" that informs the regulatory scheme underlying the inspection or search; (ii) whether the inspection or search is necessary to further the regulatory scheme; and (iii) whether the scheme provides a substitute for a warrant by alerting the owner to the likelihood of such inspections and by limiting the discretion of the inspecting officials. New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636, 2644-45, 96 L.Ed.2d 601 (1987).
With regard to the substantiality of the government interest in the state and federal regulation of nursing homes, it can hardly be doubted that the interest is of the highest order. Many patients at nursing homes are helpless, and their physical and mental well-being and quality of life are often at the mercy of the operators and staff. New Paltz wisely does not argue otherwise. Also wisely, New Paltz does not argue that warrantless inspections are unnecessary to implementation of the regulatory scheme. Mistreated patients may find it difficult or impossible to...
To continue reading
Request your trial
-
Ward v. Housatonic Area Regional Transit Dist.
...of direct or circumstantial facts ... supporting the claim of an improper motive in order to avoid summary judgment." Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.1995). While the court recognizes that Ward has not offered substantial evidence to support his claim, given his se status, and the......
-
Crawford-El v. Britton
...when they apply the test, the courts have been quite consistent in articulating the appropriate evidentiary burden. See Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.1995) ("[T]he plaintiff must proffer particularized evidence of direct or circumstantial facts ... supporting the claim of an imp......
-
Zalaski v. City of Hartford
...highly unusual nature of the actions taken.’ ” Anderson v. City of New York, 817 F.Supp.2d 77, 96 (E.D.N.Y.2011) (citing Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.1995)). In order to meet the third element, or the chilling requirement, a plaintiff must come forward with evidence showing eit......
-
Morgan v. Bubar
...then address whether the conduct was objectively reasonable. If not, the motion must be denied." (Citation omitted.) Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.1995), citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). "A necessary concomitant to the determin......
-
Watching out for grandma: video cameras in nursing homes may help to eliminate abuse.
...a partnership may assert action based on a right to privacy). (155.) New York v. Burger, 482 U.S. 691, 700 (1987). (156.) Blue v. Koren, 72 F.3d 1075, 1080 (2d Cir. (157.) Id. at 1081. (158.) Adelman, supra note 104, at 822. (159.) Id. (160.) See infra notes 161-170 and accompanying text. (......
-
Colorado Nursing Homes: Litigation and Public Policy Issues Concerning Abuse and Neglect
...previously had adopted a similar "bill of rights."). See CRS § 25-1-201(1)(a)-(k). 17. 42 C.F.R., Ch. IV § 483.15. 18. Blue v. Koren, 72 F.3d 1075 at 1079 (2nd Cir. 19. Salas, supra, note 10. 20. Dobbs, Law of Remedies (St. Paul, MN: West Publishing Co., 1973) at § 3.G. 21. 42 U.S.C. §§ 301......