Kuppersmith v. Dowling

• Decision Date: 25 March 1999
• Citation: 710 N.E.2d 660,93 N.Y.2d 90,688 N.Y.S.2d 96
• Parties: , 710 N.E.2d 660, 1999 N.Y. Slip Op. 2628 Jennie KUPPERSMITH, Individually and on Behalf of All Others Similarly Situated, et al., Appellants, v. Michael DOWLING, as Commissioner of the New York State Department of Social Services, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 96

688 N.Y.S.2d 96

93 N.Y.2d 90, 710 N.E.2d 660, 1999 N.Y. Slip Op. 2628

Jennie KUPPERSMITH, Individually and on Behalf of All Others Similarly Situated, et al., Appellants, v. Michael DOWLING, as Commissioner of the New York State Department of Social Services, et al., Respondents.

Court of Appeals of New York.

March 25, 1999.

Leslie Saltzman, New York City, Toby Golick, Michael D. Scherz and Yisroel Schulman, for appellants.

Michael D. Hess, Corporation Counsel of New York City (Kristin M. Helmers, Leonard Koerner and Chlarens Orsland of counsel), for William Grinker, respondent.

Eliot Spitzer, Attorney-General, New York City (Michael B. Siller, Peter H. Schiff, John W. McConnell and Vincent Leong of counsel), for Michael Dowling, respondent.

Donna Dougherty, Rego Park, and Diane Lutwak, Brooklyn, for Medical Society of the State of New York and others, amici curiae.

OPINION OF THE COURT

WESLEY, J.

This appeal challenges regulations and procedures of the New York State Department of Social Services (DSS) concerning home care services authorized under the Medicaid program. Petitioners sued DSS and the New York City Human Resources Administration, arguing that the regulation governing the treating physician's order for home care services (18 NYCRR 505.14[b][i][a ][3 ] ) is arbitrary and capricious. They also seek a judicially created presumption in favor of the treating physician's estimate regarding the number of hours of home care services required. We conclude that the regulation is not arbitrary and capricious, and that adoption of a "treating physician's rule" in this context is unwarranted. Therefore, the order of the Appellate Division should be affirmed.

I. The Home Care Program: The Federal Scheme

Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.), popularly referred to as the Medicaid Act, authorizes grants to States to provide medical and rehabilitative assistance to the poor, elderly and disabled. The purposes of the statute are to provide a supplementary health benefits program, to establish an expanded program of medical assistance and to increase benefits to those who qualify for assistance (S. Rep. No. 89-404, at I [1965], reprinted in 1965 U.S.Code Cong. & Admin.News 1943). The Omnibus Budget Reconciliation Act of 1990 (OBRA 1990, Pub. L. 101-508 § 4721) amended the Medicaid Act to include personal care services as part of the home health services benefits authorized by this statute.

According to Federal regulations, "personal care services" are (1) authorized by a physician in accordance with the recipient's plan of treatment; (2) provided by an individual who is qualified to provide the services and not a member of the recipient's family; (3) furnished in a home, and, at the State's option, in another location (42 CFR 440.167). These services primarily involve "hands on" assistance with physical dependency needs such as bathing, dressing and taking medications (see, Medicare & Medicaid Guide [CCH] p 45,624, at 55,279).

The Act authorizes the States to implement plans for medical assistance which "include reasonable standards * * * for determining eligibility for and the extent of medical assistance under the plan which * * * are consistent with the objectives of [the Act]" (42 U.S.C. § 1396a[a] ). Thus the statute confers broad discretion on participating States to determine the extent of services provided; the State standards need only be reasonable and consistent with the objectives of the Act.

II. The Home Care Program: State Law

In New York, personal home care services are furnished in accordance with the Federal mandate (Social Services Law § 365-a[e] ). Pursuant to State regulations implementing the statute, home care services may be authorized only after an extensive review process. The services must be (1) essential to maintaining the client's health and safety; (2) ordered by the attending physician; (3) based on an assessment of the client's needs and the appropriateness and cost effectiveness of the services; (4) provided by a qualified person in accordance with a plan of care; (5) supervised by a registered professional nurse; and (6) if required for more than 60 continuous days, provided in accordance with certain fiscal assessment procedures (see generally, 18 NYCRR 505.14[a] et seq.).

The primary focus of this appeal concerns 18 NYCRR 505.14(b)(3)(i)(a )(3 ), the regulation governing the treating physician's order for home care services. Pursuant to this regulation, a treating physician must file a form (the DSS-4359) with the local social services district that describes the patient's medical condition and the tasks for which the patient requires assistance (18 NYCRR 505.14[b][i][a ] ). However, physicians recommending personal care services "must not recommend the number of hours * * * that the patient should be authorized to receive" (18 NYCRR 505.14[b][i][a ][3 ] ). Although the DSS-4359 form allows physicians to document a patient's specific needs, it also reinforces the regulatory prohibition on physicians from recommending the number of hours of home care.

After a physician files the form, the local district must conduct a detailed review of the case, including social, nursing and home care assessments, an assessment of the appropriateness and cost-effectiveness of other types of home services or arrangements, and a fiscal assessment, if appropriate (18 NYCRR 505.14[b] ). An independent medical review by a physician designated by the local district director or a physician under contract with the local social services department (an "affiliated physician") also may be required (18 NYCRR 505.14[b] ). The affiliated physician does not make the final determination of the level of care required by an individual client. State regulations restrict that determination to the local director or his or her designee (18 NYCRR 505.14[b][ii] ).

III. The Instant Litigation

Petitioner Jennie Kuppersmith, a Medicaid recipient, instituted this combined CPLR article 78 proceeding and declaratory judgment action in 1986 challenging the administration and implementation of the home care program by the State and City of New York. Kuppersmith ultimately prevailed in her own dispute concerning the number of hours of personal care she should receive following an administrative hearing. Other petitioners intervened and Supreme Court granted class certification in June 1987.

In 1992, DSS promulgated 18 NYCRR 505.14(b)(3)(i)(a )(3 ) and petitioners moved in Supreme Court to enjoin implementation of this regulation. They argued that greater weight should be given to the assessment of the treating physician in determining the extent of personal care services required. They also moved for leave to file a supplemental complaint and for partial summary judgment on their claims regarding the weight to be given to the treating physician's opinion. Following an initial determination by the court and a motion for reargument by petitioners, Supreme Court denied petitioners' motions, and granted defendants' cross motion for summary judgment dismissing "the issue of the weight of the treating physician's assessment of the need for home care services." The court upheld the new physician order form and upheld the DSS regulations and policies that instructed the physician not to recommend the number of hours of Medicaid-paid personal care services for the applicant.

Petitioners appealed, and the Appellate Division affirmed, holding that the challenged regulation was not "arbitrary, capricious, or manifestly contrary to the statute" and that "neither the Medicaid laws nor due process mandates the imposition of a 'treating physician's rule' as to the number of hours of personal care services" (246 A.D.2d 473, 474, 668 N.Y.S.2d 381). We granted petitioners leave to appeal to this Court and now affirm.

It is well-settled that a State regulation should be upheld if it has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated (New York State Assn. of Counties v. Axelrod, 78 N.Y.2d 158, 166, 573 N.Y.S.2d 25, 577 N.E.2d 16; Matter of Bates v. Toia, 45 N.Y.2d 460, 464, 410 N.Y.S.2d 265, 382 N.E.2d...