Case v. Weinberger
| Decision Date | 09 September 1975 |
| Docket Number | No. 1246,D,1246 |
| Citation | 523 F.2d 602 |
| Parties | Mabel M. CASE, d/b/a Case Nursing Home, Plaintiff-Appellant, v. Caspar WEINBERGER, as Secretary of the United States Department of Health, Education & Welfare, et al., Defendants-Appellees-Appellants, Abe Lavine, Commissioner of the New York State Department of Social Services, and John Lascaris, Commissioner of the Onondaga County Department of Social Services, Defendants-Appellees. ocket 75-6038. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael A. Wineburg, Michaels, Michaels & Wineburg, Auburn, N. Y. (Joseph C. Scollan, Michaels, Michaels & Wineburg, Auburn, N. Y., of counsel), for plaintiff-appellant.
Eloise E. Davies, Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., James M. Sullivan, Jr., U. S. Atty., Leonard Schaitman, Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., of counsel), for cross-appellants/appellees, Weinberger, Bernstein, and Saperstein.
John M. Dufur, Asst. Atty. Gen. of N. Y. , for appellee Lavine.
Before GIBBONS, * GURFEIN and MESKILL, Circuit Judges.
This appeal results from the efforts of governmental authorities to require compliance with statutory safety standards by those health care facilities which care for governmentally-sponsored patients. We must determine whether or not a full evidentiary hearing is necessary in this case prior to a nursing home's decertification as a skilled nursing facility under the Medicaid program, and further, whether or not Congress intended, or the Constitution requires, procedural uniformity with regard to the granting of waivers under Medicare and Medicaid.
The government's efforts were first reviewed by this Court in Maxwell v. Wyman, 458 F.2d 1146 (2 Cir., 1972) (Maxwell I ). There, pursuant to a prior statutory scheme, the New York State Departments of Social Services and Health teamed up to regulate "skilled nursing homes" and to determine whether "providers" of Medicaid services had met the requirements of the Life Safety Code of the National Fire Protection Association (Life Safety Code), as mandated by Title XIX of the Social Security Act. 1 Title XIX at that time also permitted the State agency to waive "specific provisions of the Life Safety Code which, if rigidly applied, would result in unreasonable hardship upon a nursing home, but only if such agency makes a determination . . . that such waiver will not adversely affect the health and safety of the patients of such skilled nursing home . . .." 42 U.S.C. § 1396a(a)(28)(F)(i); 45 C.F.R. § 249.33(a)(1)(vii).
Prior to the Maxwell I case, however, the New York State Department of Social Services refused to grant any waivers because it felt that any violation of the Life Safety Code necessarily "adversely affect(ed)" the health and safety of patients. 2 The appellants in that case were 148 proprietors of "skilled nursing homes" which the Department of Social Services was attempting to disqualify from Medicaid reimbursement because of Life Safety Code violations. The State agency offered no hearings on the waiver issue since it had determined no waivers should be granted under any circumstances. This Court directed that hearings on waivers take place before the "provider agreements" were terminated, deciding that 42 U.S.C. § 1396a(a)(28)(F)(i) and 45 C.F.R. § 249.33(C)(2) mandated a case-by-case inquiry into both the "unreasonable hardship" caused by rigid enforcement of the Life Safety Code and the possibility of adversely affecting the patients' health and safety by granting waivers of violations. 3
Subsequently, on September 8, 1972, the State made a fire safety survey of the Case Nursing Home. 4 Mrs. Case, the owner-operator of the home, was then given a purported hearing which the State Attorney General admitted was insufficient. Consequently, a new State hearing was agreed to and held. 5 A final State determination however, was never made because new federal legislation intervened to shift the responsibility of making Life Safety Code waiver determinations from the several states to the Secretary of Health, Education and Welfare (Secretary). 6 Further State action with respect to appellant's Life Safety Code violations thereafter ceased except for a subsequent State Survey Agency Fire Safety Survey made on December 20, 1973, and reviewed May 5, 1974. 7
On October 18, 1974, the Regional Director of HEW notified Mrs. Case by letter that, based on the surveys made by the State agency, his staff had recommended that waivers of the reported violations not be granted. The letter included copies of those surveys and indicated that Mrs. Case could request a "review" of that recommendation prior to a final determination. Such a "review" was timely requested and was held on December 17, 1974. That "review" was held more in the form of an informal meeting than an evidentiary hearing. Mrs. Case's legal counsel made extensive opening remarks concerning the relative safety of the facility and the advisability of granting waivers of violations of the Life Safety Code in instances where the facility could not technically comply with its requirements. He also presented Mrs. Case's fire safety consultant who discussed general means for remedying the remaining violations. The consultant further expressed his expert opinion that the facility, in its present condition, afforded its patients reasonable safety from the dangers of fire. During the "review," Mrs. Case's counsel proposed to submit detailed plans for correcting those deficiencies which could be corrected and to point out and seek waivers of those which could not. The staff officer in charge of the proceeding accepted that proposal. The review was conducted with no sworn testimony, although a tape recording was made of the proceeding. 8
By letter dated January 20, 1975, Mrs. Case's counsel transmitted the proposed corrections and requests for waivers to the regional office of HEW. There was no further apparent communication between the parties until March 25, 1975, when the HEW Regional Director of Long Term Care notified Mrs. Case that, notwithstanding the proposed corrections, the facility would not meet the requirements of the Life Safety Code in certain listed respects. The notification further denied the request for waivers of the admittedly uncorrectable technical violations. At no time prior to the notification of the final determination did any representative of the Secretary indicate to Mrs. Case or her attorney what criteria would be used to determine whether or not those violations would, if waived, "adversely affect the health and safety of the patients." On April 11, 1975, Mrs. Case received formal notification from the New York State Department of Social Services that, effective April 12, 1975, as a result of the HEW determination, the nursing home would no longer be certified as a provider of skilled nursing facility services for Medicaid patients and that county officials would be contacting the home prior to May 12, 1975, to arrange for the removal of those patients.
Appellant Case initiated this action by complaint and order to show cause on April 18, 1975, seeking alternatively (1) the convening of a three judge court to restrain the enforcement, operation and execution of 42 U.S.C. § 1396a(a) (28) as repugnant to the United States Constitution, (2) preliminary and permanent injunctions directing the defendants to afford the plaintiffs full administrative hearings prior to decertification and removal of Medicaid patients, or (3) full review of the agency action pursuant to the provisions of the Administrative Procedure Act. On May 9, 1975, Judge Port denied the application for the convening of a three judge court, and refused to enjoin the defendants' further actions with respect to decertification and removal of Medicaid patients prior to full administrative hearings. Judge Port did, however, order that the Secretary grant the plaintiff a full evidentiary hearing with respect to the granting of waivers of the Life Safety Code provisions within 90 days after a request for such a hearing.
We turn first to the appellant's claim that the district court erred in not granting injunctive relief, pending a due process administrative hearing of her claim that the Secretary should have waived the uncorrectable violations of the Life Safety Code. The cornerstone of appellant's argument is that a due process hearing is required prior to the Secretary's determination that the nursing home was no longer a "skilled nursing facility." We disagree with that contention given the particular facts of this case.
It is clear that Mrs. Case has a property interest in her expectation of continued participation in the Medicaid program. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The procedural requirements of due process must reflect a balance between government's interest and the nature of the individual interest being affected by the governmental action. Frost v. Weinberger, 515 F.2d 57 (2 Cir., 1975); Cf. Escalera v. New York City Housing Authority, 425 F.2d 853 (2 Cir., 1970) cert. denied 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91. As the Supreme Court stated in Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961), "(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." The fundamental requisites of due process are some kind of notice and some kind of hearing. Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 42 L.Ed.2d 521 (1975). But "the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing...
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