Giaquinto v. Comm'r of the New York State Dep't of Health

• Decision Date: 26 January 2012
• Citation: Giaquinto v. Comm'r of the New York State Dep't of Health, 91 A.D.3d 1224, 939 N.Y.S.2d 578, 2012 N.Y. Slip Op. 437 (N.Y. App. Div. 2012)
• Parties: In the Matter of Dominick GIAQUINTO, Respondent–Appellant, v. COMMISSIONER OF the NEW YORK STATE DEPARTMENT OF HEALTH, Appellant–Respondent, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00437

91 A.D.3d 1224

939 N.Y.S.2d 578

In the Matter of Dominick GIAQUINTO, Respondent–Appellant,

v.COMMISSIONER OF the NEW YORK STATE DEPARTMENT OF HEALTH, Appellant–Respondent, et al., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 26, 2012.

Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for appellant-respondent.

Pierro Law Group, Latham (Louis W. Pierro of counsel), for respondent-appellant.

Before: MERCURE, Acting P.J., LAHTINEN, SPAIN, MALONE JR. and KAVANAGH, JJ.

MERCURE, Acting P.J.

(1) Appeal from a judgment of the Supreme Court (Ferradino, J.), entered November 8, 2010 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Health that, among other things, directed an evaluation of petitioner's excess resources, and (2) cross appeals from a judgment of said court, entered March 25, 2011, which awarded petitioner counsel fees under 42 USC §§ 1983 and 1988.

This marks the second occasion that the present case has been before us (39 A.D.3d 922, 833 N.Y.S.2d 301 [2007], revd. 11 N.Y.3d 179, 867 N.Y.S.2d 716, 897 N.E.2d 116 [2008] ). Briefly stated, petitioner was a resident of a nursing home. After his application for Medicaid benefits was denied on the ground that he and his wife had excessive income and resources, he requested a fair hearing. Respondent Commissioner of Health (hereinafter respondent) affirmed the denial, but found that the wife's allotment of marital assets beyond Medicaid's reach must be increased. Respondent remanded the application to the Montgomery County Department of Social Services to determine how much of petitioner's excess resources would be necessary to allow the wife to purchase a single premium immediate life annuity, and directed that petitioner's application be reexamined after any additional excess resources were purged ( see 42 USC § 1396r–5 [d], [e][2][C]; Social Services Law § 366–c [8] ).

Petitioner then commenced this CPLR article 78 proceeding to challenge respondent's determination and obtain an award of counsel fees. Supreme Court granted the petition and awarded counsel fees, finding that respondent had departed without explanation from prior precedent ruling that a community spouse could not be directed to purchase an annuity ( see Matter of Charles A. Field Delivery Serv. [ Roberts], 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985] ). Respondent appealed, arguing solely that petitioner was not entitled to the counsel fees awarded by Supreme Court pursuant to 42 USC §§ 1983 and 1988. The Court of Appeals ultimately concluded that counsel fees could be awarded only if petitioner had succeeded on his federal statutory claim (11 N.Y.3d 179, 190–192, 867 N.Y.S.2d 716, 897 N.E.2d 116 [2008] ). Because Supreme Court had resolved the matter on state law grounds without explicitly addressing petitioner's federal claim, the Court of Appeals remitted for a determination of the federal claim “for the purpose of awarding attorney fees” ( id. at 191, 867 N.Y.S.2d 716, 897 N.E.2d 116 [internal quotation marks and citation omitted] ). Upon remittal, Supreme Court found the claim to have merit and, in a separate judgment, awarded over $100,000 in counsel fees and costs to petitioner. Respondent appeals from both judgments, while petitioner cross-appeals only from the judgment specifying the amount of the fee award.¹

Initially, we reject petitioner's contention that our review of the issue raised on this appeal is barred by the law of the case doctrine. Neither this Court nor the Court of Appeals has addressed the issue of whether respondent's determination violated federal law. Indeed, due to Supreme Court's failure to explicitly address the issue, the Court of Appeals remitted the matter for a determination regarding whether “respondent's calculation of [petitioner's] wife's ‘community spouse resource allowance’ (CSRA) violated a provision of the federal Medicaid Act” (11 N.Y.3d at 183, 867 N.Y.S.2d 716, 897 N.E.2d 116). While Supreme Court has now expressly ruled that such a violation had occurred, the merits of that claim were not resolved upon the initial appeal, and we are not precluded by the law of the case doctrine from addressing them now ( see People v. Evans, 94 N.Y.2d 499, 503 n. 3, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000]; Grullon v. City of New York, 297 A.D.2d 261, 265, 747 N.Y.S.2d 426 [2002] ).²

Turning to the merits, respondent argues that the use of the “annuity method” to increase the community spouse resource allowance for petitioner's wife was permitted under federal law. Medicaid “pays for medical care for those unable to afford it, including nursing home care for medically needy older people who become eligible by incurring medical expenses that reduce their monthly income and assets below prescribed levels” ( Matter of Tomeck, 8 N.Y.3d 724, 728, 840 N.Y.S.2d 550, 872 N.E.2d 236 [2007] ). Although an applicant residing in a nursing home must “spend down” income and resources to the point where he or she is financially eligible for benefits, Congress also adopted provisions “designed to [e]nsure that the community spouse”—i.e., the spouse who continues to reside in the community—“retains necessary, but not excessive, income and assets, which do not need to be depleted” ( id.; see Wisconsin Dept. of Health & Family Servs. v. Blumer, 534 U.S. 473, 480, 122 S.Ct. 962, 151 L.Ed.2d 935 [2002]; Matter of Balzarini v. Suffolk County Dept. of Social Servs., 16 N.Y.3d 135, 141, 919 N.Y.S.2d 474, 944 N.E.2d 1113 [2011] ). Under those provisions, petitioner's wife was entitled to a minimum monthly maintenance needs allowance, “an amount deemed sufficient for [her] to live at a modest level after [petitioner became] eligible for Medicaid” ( Matter of Tomeck, 8 N.Y.3d at 728, 840 N.Y.S.2d 550, 872 N.E.2d 236; see 42 USC § 1396r–5[d][3]; Social Services Law § 366–c[2][h] ). Similarly, she was entitled to retain a portion of the couple's jointly and separately owned assets, known as the community spouse resource allowance ( see 42 USC § 1396r–5[f][2]; Social Services Law § 366–c[2][d]; Matter of Tomeck, 8 N.Y.3d at 729, 840 N.Y.S.2d 550, 872 N.E.2d 236; Matter of Golf v. New York State Dept. of Social Servs., 91 N.Y.2d 656, 659–660, 674 N.Y.S.2d 600, 697 N.E.2d 555 [1998] ). Inasmuch as the wife's monthly income fell below the minimum monthly maintenance needs allowance, respondent was obliged to increase the community spouse resource allowance to an “amount adequate to provide such a minimum monthly maintenance needs allowance” (42 USC § 1396r–5[e][2][C]; see Social Services Law § 366–c[8][c] ).

Petitioner challenged respondent's use of the “annuity method” to determine the amount of that increase as violating 42 USC § 1396r–5(e)(2)(C). The statute, however, “does not set out an ‘arithmetical formula’ for” determining an adequate figure ( Johnson v. Lodge, 673 F.Supp.2d 613, 617 [M.D.Tenn.2009]; see Harris v. Department of Human Servs., 345 Ill.App.3d 764, 767, 281 Ill.Dec. 442, 803 N.E.2d 1063, 1066 [2004] ). Indeed, the statute's open-ended language does not dictate any particular methodology, and the states employ a...