Providence Pediatric Med. Daycare, Inc. v. Alaigh

• Citation: 112 F.Supp.3d 234
• Decision Date: 30 June 2015
• Docket Number: Civil No. 10–2799 (NLH/KMW).
• Parties: PROVIDENCE PEDIATRIC MEDICAL DAYCARE, INC., et al., Plaintiffs, v. Poonam ALAIGH, et al., Defendants.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

112 F.Supp.3d 234

PROVIDENCE PEDIATRIC MEDICAL DAYCARE, INC., et al., Plaintiffs,

v.Poonam ALAIGH, et al., Defendants.

Civil No. 10–2799 (NLH/KMW).

United States District Court, D. New Jersey.

Signed June 30, 2015.

Angelina Montanez, Esquire, Providence Pediatric Medical DayCare, Inc., West Berlin, NJ, for Plaintiffs.

John J. Hoffman, Acting Attorney General of New Jersey, by Michael James Kennedy, Deputy Attorney General, Kate M. Judd, Deputy Attorney General, Brigid C. O'Neill, Deputy Attorney General, R.J. Hughes Justice Complex, Trenton, NJ, for Defendants.

OPINION

HILLMAN, District Judge:

Presently before the Court is the motion [Doc. No. 141] for summary judgment filed by Defendants, Poonam Alaigh, individually and as Commissioner of the New Jersey Department of Health and Senior Services, New Jersey Department of Health and Senior Services (hereafter, "DHSS"), Jennifer Velez, individually and a Commissioner of the Department of Human Services, the New Jersey Department of Human Services, John Guhl, individually and as Director of the Division of Medical Assistance and Health Services, and the Division of Medical Assistance and Health Services (collectively, "Defendants"). The motion is opposed by Plaintiffs, Providence Pediatric Medical Daycare, Inc. (hereafter, "Providence"), G.V., on behalf of her minor child N.M., M.N. on behalf of her minor child Z.N., T.P. on behalf of her minor child J.M., A.B. on behalf of her minor child T.B., D.L. on behalf of her minor child J.B., and H.S. on behalf of her minor child C.T. (collectively, "Plaintiffs").

In general, Plaintiffs allege in this case that Defendants violated Medicaid statutory law and the United States Constitution by promulgating and enforcing regulations that circumscribe services provided by Providence and received by the Plaintiff–Children. The Court previously denied Defendants' motion to dismiss the complaint, noting "Defendants' general opposition to Plaintiffs' claims rests more on the merits of those claims, and the facts and evidence surrounding them, than on their facial plausibility." (Op. 17, June 28, 2011.) The Court further noted that "a motion for summary judgment, with an appropriate response by Plaintiffs, presents the proper occasion for this Court to consider any evidence and reach the merits of this case." (Id. at 19.) The parties then proceeded through discovery, and Defendants now seek judgment in their favor on all claims asserted in the complaint.

The Court has considered the submissions of the parties and decides this matter pursuant to Fed.R.Civ.P. 78. For the reasons that follow, Defendants' motion for summary judgment is granted in part and denied in part.

I. JURISDICTION

This Court has jurisdiction over Plaintiffs' federal claims under 28 U.S.C. § 1331.

II. BACKGROUND

A. Pediatric Medical Day Care in New Jersey

Pediatric medical day care (hereafter, "PMDC") is a program overseen by the New Jersey Department of Health¹ that provides medically necessary services to "technology-dependent children" or children with complex medical needs in an ambulatory care setting. (Defs.' Statement of Material Facts Pursuant to L. Civ. R. 56.1 [Doc. No. 141–1] (hereafter, "Defs.' SOF") ¶ 3.) A "technology-dependent child" is "a child who requires a specific class III medical device to compensate for the loss of a vital body function to avert death or further disability and ongoing skilled nursing intervention in the use of the device." N.J.A.C. 10:166–1.2. PMDC facilities provide services to children who reside in the community and who, because of a medical condition, require continuous care by a professional nurse in a developmentally appropriate environment and whose needs cannot be met in a regular day care or pre-school handicap program. (Defs.' SOF ¶ 4.) All PMDC facilities must be licensed by the Department of Health. (Id. )

If a state is a participant in Medicaid, it must have an Early and Periodic Screening, Diagnosis, and Treatment (hereafter, "EPSDT") program. 42 U.S.C. § 1396a. "The EPSDT provisions of the Medicaid statute require participating States to provide various medical services to eligible children, and to provide notice of the services." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 433–34, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). These services include screenings, physical exams, immunizations

, vision services, dental services, hearing services, and "[s]uch other necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services[.]" 42 U.S.C. § 1396d(r). Defendant Division of Medical Assistance and Health Services, which is within Defendant New Jersey Department of Human Services, is the State agency designated to administer the New Jersey Medicaid program. (Defs.' SOF ¶ 6.) As such, EPSDT services in New Jersey are under the purview of the Department of Human Services. (Id. )

PMDC facilities may provide EPSDT services and may receive reimbursement from Medicaid for providing such services. (Defs.' SOF ¶¶ 7, 8.) If a PMDC facility participates in Medicaid, it must comply with the New Jersey regulations governing PMDC services set forth at N.J.A.C. 10:166–1.1 et seq. (Id. ¶ 8.) In addition, as noted above, PMDCs must be licensed by the New Jersey Department of Health and must comply with the licensing regulations set forth in N.J.A.C. 8:43J–1.1 et seq. (Id. )

B. Eligibility and Prior Authorization to Attend PMDC Facilities

PMDC services are offered to medically complex or technology dependent children from birth through the last day prior to his or her sixth birthday. See N.J.A.C. 10:166–3.1(a). Children may be referred for PMDC services by a number of sources including physicians, hospitals and the New Jersey Department of Children and Families. (Defs.' SOF ¶ 9.)

To be eligible to attend a PMDC, children must meet certain clinical eligibility requirements set forth by regulation. N.J.A.C. 10:166–3.1(b). A child's eligibility for PMDC services is currently handled by staff designated by the Department of Human Services. N.J.A.C. 10:166–3.4. Plaintiffs contend that prior to 2010, eligibility for pediatric medical daycare services was determined by the staff at each individual PMDC facility. (Pls.' Response to Defs.' Statement of Material Facts ¶ 13.)

C. Licensure of PMDC Facilities

PMDC facilities must meet licensing standards established by the Department of Health at N.J.A.C. 8:43J–1.1 et seq. (Defs.' SOF ¶ 24.) Barbara Goldman, Assistant Director of the Certificate of Need and Health Care Facility Licensure for the Department of Health, testified as to the process for a PMDC to be licensed by the State.

According to Goldman, the application process begins when an applicant submits a project narrative, including ownership information and schematic plans, which are reviewed by Goldman's department. (Cert. of Michael J. Kennedy (hereafter, "Kennedy Cert."), Ex. J at 22:16–23:21.) If the submission gains approval, the provider would then send a full set of architectural plans, including duct work, piping, and air conditioning, to the Department of Community Affairs. (Id. at 27:5–28:4.) Once the provider gains the next level of approval, the provider obtains the requisite building permits and begins building the facility. (Id. at 28:7–14.) Once the facility is constructed, which could take several months or years, the facility is inspected to ensure compliance with the licensing standards. (Id. at 30:19–31:4.) At that point, the provider submits an application for a license, as well as a licensing fee, and thereafter receives a license and approval to begin operating as a PMDC. (Id. at 22:18–23:13.) The license application and issuance of the license are thus the last steps in the application process.

D. 2009 Rule Adoption

On November 16, 2009, the Department of Health adopted the current regulations governing PMDC providers in New Jersey. (Defs.' SOF ¶ 18.) Pursuant to these regulations, licensure of facilities was governed by N.J.A.C. 8:43J–1.1 et seq., and Medicaid reimbursement to facilities was governed by N.J.A.C. 8:86–1.1 et seq., which have since been recodified to N.J.A.C. 10:166–1.1 et seq. (Id. ) During the notice and comment period for these regulations, Providence's Chief Executive Officer, Leeanna Roman Lozada, submitted multiple comments regarding the proposed regulations. (Id. ¶ 19.)

One of the regulations adopted in 2009 states that a functional assessment of Medicaid beneficiaries must consist of a detailed review of the nursing needs of the beneficiary, including "[t]he presence of moderate persistent or severe persistent asthma

requiring nebulizer treatments more than twice a day and frequent medication adjustment in accordance with the Asthma Guidelines." N.J.A.C. 10:166–3.1(b)(4)(vii). According to Plaintiffs, DHSS representatives have interpreted this regulation in a manner that does not account for the fluctuations of asthma care, which purportedly creates an environment in which a child may qualify for PMDC services one day but may not qualify another day.

In addition to this regulation, the prior version of the regulations had limited the maximum daily census in any PMDC facility to twenty-seven children. (See Defs.' SOF ¶ 20.) The new regulations similarly required PMDC facilities to maintain an average daily census of twenty-seven. (Id. ) According to the DHSS, "[t]he purpose of this regulation is to maintain the optimal environment for children who are medically unstable, technologically dependent or otherwise in need of skilled nursing because of special care needs." (Kennedy Cert., Ex. E.) The DHSS further stated that "since pediatric day health services facilities serve medically fragile children, the Department feels that it is in the best clinical interests of these children to limit the maximum daily census to 27 in accordance with the current regulation." (Id. )

Notwithstanding the...