Rodriguez ex rel. Rodriguez v. DeBuono

• Decision Date: 23 March 1999
• Docket Number: 97-9176,97-9178,97-9206 and 97-9186,97-9204,Docket Nos. 97-9152
• Citation: 175 F.3d 227
• Parties: Juana RODRIGUEZ, by her son and next friend, Wilfredo RODRIGUEZ, Amelia Russo, Mary Weinblad, by her daughter and next friend, Susan Downes, Cristos Gouvatsos, Sidonie Bennett, individually and on behalf of all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, Ruvim Aselrod, Intervenor-Plaintiff-Appellee-Cross-Appellant, v. Barbara A. DEBUONO, Commissioner of the New York State Department of Health, Brian Wing, Acting Commissioner of the New York State Department of Social Services, Defendants- Appellants- Cross-Appellees, City of NY, Commissioner of the Westchester County Department of Social Services, Commissioner of Suffolk County Department of Social Services, Irene Lapidez, Commissioner Nassau County Department of Social Services, Intervenor-Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 227

175 F.3d 227

Juana RODRIGUEZ, by her son and next friend, Wilfredo RODRIGUEZ, Amelia Russo, Mary Weinblad, by her daughter and next friend, Susan Downes, Cristos Gouvatsos, Sidonie Bennett, individually and on behalf of all others similarly situated, Plaintiffs-Appellees-Cross-Appellants Ruvim Aselrod, Intervenor-Plaintiff-Appellee-Cross-Appellant, v. Barbara A. DEBUONO, Commissioner of the New York State Department of Health, Brian Wing, Acting Commissioner of the New York State Department of Social Services Defendants- Appellants- Cross-Appellees City of NY, Commissioner of the Westchester County Department of Social Services, Commissioner of Suffolk County Department of Social Services, Irene Lapidez Commissioner Nassau County Department of Social Services, Intervenor-Defendants-Appellants-Cross-Appellees.

Docket Nos. 97-9152, 97-9176, 97-9178, 97-9204, 97-9206 and 97-9186.

United States Court of Appeals, Second Circuit.

Argued May 6, 1998.

Decided Nov. 16, 1998.

As Amended March 23, 1999.

James M. Hershler, Assistant Attorney General of the State of New York, New York City, (Dennis C. Vacco, Attorney General of the State of New York, John W. McConnell, Deputy Solicitor General, Robert A. Forte, Assistant Attorney General, New York City, of counsel), for Defendants-Appellants-Cross-Appellees.

Mordecai Newman, New York City, (Paul A. Crotty, Corporation Counsel of the City of New York, Larry A. Sonnenshein, Judith C. McCarthy, Corporation Counsel's Office of the City of New York, New York City, of counsel), for Intervenor-Defendant-Appellant-Cross-Appellee City of NY.

Leslie F. Salzman, Cardozo Bet Tzedek Legal Services, New York City, (Toby Golick, Sandra Kraus, Frances Mingoia, Cardozo Bet Tzedek Legal Services, New York City, on the brief; Donna Dougherty, Queens Legal Services for the Elderly, Rego Park, NY, of counsel; Michael D. Scherz, New York Legal Assistance Group, New York City, of counsel), for Plaintiffs-Appellees-Cross-Appellants.

Michael T. Hopkins, Hopkins Kopilow & Weil, Garden City, NY, of counsel, for Intervenor-Defendant-Appellant Lapidez, Commissioner Nassau County Department of Social Services.

Gregory F. Meehan, Acting Westchester County Attorney, Stacey Dolgin-Kmetz, Deputy County Attorney, Linda M. Trentacoste, Sr. Assistant County Attorney, Lori Alessio, White Plains, NY, of counsel, for Intervenor-Defendant-Appellant-Cross-Appellee Commissioner of the Westchester County Department of Social Services.

Robert J. Cimino, Suffolk County Attorney, Barbara Barton, Assistant County Attorney, Theodore D. Sklar, Hauppauge, NY, of counsel, for Intervenor-Defendant-Appellant-Cross-Appellee Commissioner of Suffolk County Department of Social Services.

Valerie J. Bogart, Center for Disability Advocacy Rights, New York City, of counsel, for Amici Curiae The Alzheimer's Disease and Related Disorders Association, Inc., National Office and New York City Chapter, American Association of Retired Persons, National Association of Protections and Advocacy Systems, National Alliance for the Mentally Ill, Friends and Relatives of the Institutionalized Aged, Inc., Nursing Home Community Coalition of New York, Discharge Planning Association of New York City, National Senior Citizens Law Center, New York StateWide Senior Action Council, and Disabled in Action of Metropolitan New York, Ltd.

Before: McLAUGHLIN, PARKER and PHILLIPS, JR. ^* , Circuit Judges.

PER CURIAM.

Barbara A. DeBuono, Commissioner of the New York State Department of Health, and Brian Wing, Acting Commissioner of the New York State Department of Social Services (together, the "State"), as well as the respective Departments of Social Services of the City of New York (the "City"), Nassau County ("Nassau"), Westchester County ("Westchester"), and Suffolk County ("Suffolk") (collectively "Intervenor-Defendants" and with the State, "Defendants") appeal from an amended opinion and order of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge ) entered August 25, 1997 ("August 25 Order") granting in part plaintiffs' motion for a preliminary injunction, which ordered the Defendants to assess and pay for "safety monitoring" as a separate task when performing task-based assessment ("TBA") of Medicaid "personal care services." See Rodriguez v. Debuono, 177 F.R.D. 143 (S.D.N.Y.1997). The individual plaintiffs and intervenor-plaintiffs, as representatives of the certified class (collectively "Plaintiffs"), cross-appealed that portion of the August 25 Order dealing with class certification. ¹ We vacate and remand for further proceedings for the reasons stated below.

I. BACKGROUND

This is an appeal from a class action lawsuit that challenges the implementation of TBA programs, which are used in New York to determine the amount of personal care services hours authorized for eligible Medicaid applicants and recipients. Generally, Plaintiffs are Medicaid eligible elderly individuals who suffer from mental disabilities that cause them to require assistance with daily living tasks. Under TBA programs, the named Plaintiffs have received personal care services that are allegedly inadequate to address their medical needs in order to permit them to remain living in their homes. Many members of the class have subsequently received unfavorable state fair hearing decisions. ²

In the court below, Plaintiffs filed both a class action complaint and an order to show cause for a preliminary injunction to enjoin the "operation of [TBA] as currently designed throughout New York State." Basically, Plaintiffs contend that Defendants' refusal to provide so-called "safety monitoring" as an independent task discriminates against otherwise eligible mentally disabled applicants and recipients in violation of the "comparability" provision contained in a sub-paragraph of the federal Medicaid statute, 42 U.S.C. §§ 1396a(a)(10)(B). Section 1396a(a)(10)(B) provides:

[T]he medical assistance made available to any individual described in subparagraph (A) [who are categorically needy] ... (i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and (ii) shall not be less in amount, duration, or scope than the medical assistance made available to individuals not described in subparagraph (A) [who are medically needy].

42 U.S.C. § 1396a(a)(10)(B). ³ Also, Plaintiffs allege that TBA notices violate due process and federal law by failing to advise applicants and recipients adequately of the extent and nature of their personal care services authorizations.

Despite opposition from Defendants, the district court first granted in part and denied in part Plaintiff's request for class certification and then granted in part and denied in part Plaintiffs' motion for a preliminary injunction. Pursuant to Fed.R.Civ.P. 23, the district court certified a class consisting of all New York State Medicaid home care applicants and recipients whose need for home care services has been or will be determined by TBA (the "notice" class). See Rodriguez, 177 F.R.D. at 152. In addition, the district court certified two sub-classes of the "notice" class, granting statewide certification to the "safety monitoring" sub-class but limiting certification of the "span of time" sub-class to the City and Nassau. ⁴ See Rodriguez, 177 F.R.D. at 151-55.

Next, the district court found that it had jurisdiction to hear Plaintiffs' statutory claims because 42 U.S.C. § 1396a(a)(10)(B) and the applicable regulations provide for an enforceable private right of action pursuant to 42 U.S.C. § 1983. See id. at 157. As to the preliminary injunction, the district court found that Plaintiffs demonstrated a "substantial" likelihood of success on the merits: (1) of their "safety monitoring" claims pursuant to both 42 U.S.C. § 1396a(a)(10)(B) and 42 C.F.R. § 440.240(b), see id. at 157-61, and (2) of their claim that due process requires the City's notices of TBA determinations for applicants and recipients to include the number of hours authorized and the allocation of those hours by the number of hours per day. See id. at 164-65. However, the district court found that Plaintiffs' failed to make such a required showing with regard to (1) their "span of time" claims against the City or Nassau, see id. at 161-163; and (2) the remainder of their notice claims. See id. at 165, 167. Finally, the district court found that Plaintiffs showed that they would suffer irreparable harm absent preliminary relief and that the balance of the public interests tipped in favor of granting the injunction. See id. at 165-66. As a result, the district court ordered the following preliminary relief:

that Defendants include safety monitoring as a separate task on their TBA forms, assess the need for safety monitoring as a separate task, and calculate any minutes allotted for safety monitoring as part of the total personal care services hours authorized, for both applicants and recipients [the "Safety Monitoring Relief"]; and ...

that the City of New York include the total number of task hours authorized and the allocation of those hours by the number of hours per day as a component of its initial notice, and, to the extent this information is not already included, as a component of its reauthorization notice.

Id. at 167.

Each of the Defendants filed a timely notice of appeal. ⁵ Pursuant to Fed.R.Civ.P. 62(c), the City moved for an order pending appeal staying the first portion of the district court's amended order which required Defendants to provide the Safety Monitoring Relief. This motion was joined by Suffolk, Westchester and Nassau. Plaintiffs opposed it. Despite its previous finding of irreparable harm on the preliminary injunction motion, the district court granted the Defendants' request for a stay of the preliminary injunction pending appeal.

II. DISCUSSION

Defendants challenge the district court's ...