Evelyn vv KINGS COUNTY HOSP. CENTER

• Citation: 819 F. Supp. 183
• Decision Date: 21 April 1993
• Docket Number: No. CV 91-1108 (RR).,CV 91-1108 (RR).
• Parties: EVELYN V.; Hubert B.; Roberta S.; Jill B.; Daniel H.; and Sara R., individually and on behalf of all others similarly situated, Plaintiffs, v. KINGS COUNTY HOSPITAL CENTER; Bernard Rose, as Executive Director of Kings County Hospital Center; New York City Health and Hospitals Corporation; J. Emilio Carrillo, as President of the Board of Directors of the New York City Health and Hospitals Corporation; The Board of Directors of the New York City Health and Hospitals Corporation; Cesar Perales, as Commissioner of the New York State Department of Social Services; and Lorna McBarnette, as Acting Commissioner of the New York State Department of Health, Defendants.
• Court: U.S. District Court — Eastern District of New York

819 F. Supp. 183

EVELYN V.; Hubert B.; Roberta S.; Jill B.; Daniel H.; and Sara R., individually and on behalf of all others similarly situated, Plaintiffs, v. KINGS COUNTY HOSPITAL CENTER; Bernard Rose, as Executive Director of Kings County Hospital Center; New York City Health and Hospitals Corporation; J. Emilio Carrillo, as President of the Board of Directors of the New York City Health and Hospitals Corporation; The Board of Directors of the New York City Health and Hospitals Corporation; Cesar Perales, as Commissioner of the New York State Department of Social Services; and Lorna McBarnette, as Acting Commissioner of the New York State Department of Health, Defendants.

No. CV 91-1108 (RR).

United States District Court, E.D. New York.

April 21, 1993.

The Legal Aid Society, New York City, by Jean T. Schneider, Constance P. Charden, Susan Sternberg by Jane E. Booth, Leah Hill, Civil Appeals & Law Reform Unit, Brooklyn Legal Services Corp. B, Brooklyn, NY by Jane Greengold Stevens, Lauren Shapiro, Timothy Bradley, Cardozo Bet Tzedek Legal Services, New York City by Toby Golick, for plaintiffs.

O. Peter Sherwood, Corp. Counsel for the City of New York, New York City, by Robert Katz, Muriel Goode-Trufant, for defendants Kings County Hosp., Bernard Rose, New York City Health and Hospitals Corp., J. Emilio Carrillo, and The Board of Directors of the New York City Health and Hospitals Corp.

Robert Abrams, Atty. Gen. for State of NY, New York City by Susan Watson, for defendants Cesar Perales and Lorna McBarnette.

Mary Jo White, U.S. Atty., E.D.N.Y., Brooklyn, NY, by Richard Goldstein, Asst. U.S. Atty., by Linda Ruiz, Office of General Counsel, Department of Health and Human Services, for amicus curiae Secretary of Health and Human Services.

MEMORANDUM and ORDER

RAGGI, District Judge:

Kings County Hospital Center, its director Bernard Rose, the New York City Health and Hospitals Corporation, its Board of Directors, and the President of its Board, J. Emilio Carrillo, (referred to collectively herein as "the City defendants"), move to dismiss that portion of plaintiffs' proposed class action brought under 42 U.S.C. § 1983 (1988), for violations of Title XIX of the Social Security Act, more commonly referred to as Medicaid. 42 U.S.C. § 1396 et seq. (1988 & Supp. III 1991).¹ The Commissioner of the New York State Department of Social Services, Cesar Perales, and the acting Commissioner of the New York State Department of Health, Lorna McBarnette, (referred to collectively herein as "the State defendants"), have not joined in this motion. At issue is whether hospital patients can maintain a § 1983 action against the City defendants for alleged violations of Medicaid. Having carefully considered the submissions of the parties, as well as a brief filed by the Secretary of Health and Human Services, as amicus curiae, in support of the City defendants' position, the court hereby grants the motion to dismiss.

Factual Background

A. Kings County Hospital Center

Kings County Hospital Center (referred to herein as "Kings County Hospital" or "the Hospital"), which is operated by the New York City Health and Hospitals Corporation, is one of the largest municipal hospitals in the United States, and the primary medical care provider for hundreds of thousands of low-income people in Brooklyn. Founded in 1831 as a one-room infirmary, it now admits as many as 37,000 patients each year, treating another 800,000 as part of its outpatient program. On average, 400 people per day seek assistance at the Hospital's emergency room. See Mireya Navarro, Treating AIDS: One Hospital's Struggle, N.Y. Times, Nov. 11, 1991, at A1.

B. The Medicaid Program

Many patients seeking treatment at Kings County Hospital are financially dependent upon the federal Medicaid program for the care they receive. Medicaid, which was enacted in 1965, does not require the federal government itself to provide health care. Instead, it finances approved state health care programs, thereby

enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care.

42 U.S.C. § 1396 (1988).

In order to participate in the Medicaid program, a state must submit a health care plan to the Secretary of Health and Human Services (referred to herein as the "Secretary" or "HHS"). Id. To be approved, that plan must comply with 58 conditions set forth in 42 U.S.C. § 1396a (1988 & Supp. III 1991). The Secretary is further empowered to set standards of review for hospitals providing care under either an approved Medicaid or Medicare plan. See 42 U.S.C. § 1395x(e)(9) (1988) (empowering Secretary to set such standards for Medicare providers); 42 C.F.R. § 482.1(a)(3) (1992) (hospitals participating in Medicaid program must meet standards for participation in Medicare). These are detailed at 42 C.F.R. § 482.1 et seq. (1992).

C. Plaintiffs and their Complaint

Plaintiffs are six individuals who are eligible for Medicaid assistance and who have, on various occasions, sought treatment at Kings County Hospital. They claim that the Hospital routinely fails "to provide necessary, adequate, and timely care" to its patients. Complaint ¶ 214. Plaintiffs submit that the Medicaid statute, as well as various federal regulations and state laws and rules, guarantee their right to such care.

In their complaint, plaintiffs point to three subsections of 42 U.S.C. § 1396a as the source of their right to "necessary, adequate, and timely care." The first, § 1396a(a)(9), requires a participating state to make the health care agency administering its Medicaid plan "responsible for establishing and maintaining health standards for private or public institutions" serving Medicaid patients. The second, § 1396a(a)(19), requires a participating state to "provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined, and such care and services will be provided, in a manner consistent with simplicity of administration and the best interests of the recipients." Finally, § 1396a(a)(13), commonly referred to as the Boren Amendment, requires in subpart (A) — a clause that defies diagramming if not comprehension — that a participating state provide

for payment (except where the State agency is subject to an order under section 1396m of this title) of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State which, in the case of nursing facilities, take into account the costs (including the costs of services required to attain or maintain the highest practicable physical, mental, or psychosocial well-being of each resident eligible for benefits under this chapter) of complying with subsections (b) (other than paragraph (3)(F) thereof), (c), and (d) of section 1396r of this title and provide (in the case of a nursing facility with a waiver under section 1396r(b)(4)(C)(ii) of this title) for an appropriate reduction to take into account the lower costs (if any) of the facility for nursing care, and which, in the case of hospitals, take into account the situation of hospitals which serve a disproportionate number of low income patients with special needs and provide, in the case of hospital patients receiving services at an inappropriate level of care (under conditions similar to those described in section 1395x(v)(1)(G) of this title) for lower reimbursement rates reflecting the level of care actually received (in a manner consistent with section 1395x(v)(1)(G) of this title)) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality; and such State makes further assurances, satisfactory to the Secretary, for the filing of uniform cost reports by each hospital, nursing facility, and intermediate care facility for the mentally retarded and periodic audits by the State of such reports.

42 U.S.C. § 1396a(a)(13)(A) (1988) (emphases added).²

Relying on the reference in § 1396a(a)(13) to "applicable State and Federal laws, regulations, and quality and safety standards," plaintiffs cite a host of other federal and state statutes and regulations, which they claim are not being complied with at Kings County Hospital, thereby depriving them of "necessary, adequate, and timely care." Plaintiffs claim that they are denied:

(1) adequate emergency room care, in violation of 42 U.S.C. § 1395dd (1988 ed. & Supp. III 1991); 42 C.F.R. §§ 482.12(a), (c), (f), 482.22(b), 482.55(a)(2), (b) (1992); N.Y.Pub. Health Law § 2805-b(1) (McKinney Supp.1992); and N.Y.Comp. Codes R. & Regs. tit. 10, §§ 405.2(f), 405.7(b)(4), (14) (1988);

(2) adequate nursing services, in violation of 42 C.F.R. §§ 482.12(a), (c), 482.22(b), 482.23 (1992); and N.Y.Comp. Codes R. & Regs. tit. 10, §§ 405.3(b)(5), 405.5 (1988);

(3) adequate preparation and administration of drugs, in violation of 42 C.F.R. § 482.23(c)(4) (1992);

(4) adequate dietary services, in violation of 42 C.F.R. § 482.28(b) (1992);

(5) a clean and safe physical environment, in violation of 42 C.F.R. §§...