Rodriguez v. NYC

Decision Date01 August 1998
Docket Number99-7604,99-7618,99-7588,99-7586,Docket Nos. 99-7572
Citation197 F.3d 611
Parties(2nd Cir. 1999) JUANA RODRIGUEZ, by her son and next friend, Wilfredo Rodriguez; AMELIA RUSSO; MARY WEINBLAD, by her daughter and next friend, Susan Downes; CHRISTOS GOUVATSOS; and SIDONIE BENNETT, individually and on the behalf of all others similarly situated, Plaintiffs-Appellees, MOLLIE PECKMAN, by her son and next friend, Alex Peckman, Intervenor-Plaintiff-Appellee, v. CITY OF NEW YORK; IRENE LAPIDEZ, Commissioner, Nassau County Department of Social Services; COMMISSIONER OF THE WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES; COMMISSIONER, SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES; and THE NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, Intervenors-Defendants- Appellants, DENNIS WHALEN, Commissioner of the New York State Department of Health; and BRIAN WING, Commissioner of the New York State Office of Temporary Disability Assistance, Defendants-Appellants
CourtU.S. Court of Appeals — Second Circuit

Appeal from a permanent injunction in the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge). The district court held that New York's design and implementation of task-based assessment programs used to determine the amount and allocation of personal-care service hours violates (i) the Medicaid Act, (ii) certain regulations promulgated under the Act, (iii) Section 504 of the Rehabilitation Act, and (iv) the Americans with Disabilities Act. We reverse.

LESLIE SALZMAN, Cardozo Bet Tzedek Legal Services, New York, New York (Toby Golick, Cardozo Bet Tzedek Legal Services, New York New York; Donna Dougherty, Queens Legal Services for the Elderly, Rego Park, New York; Michael Scherz, New York Legal Assistance Group, New York, New York, of counsel), for Plaintiffs-Appellees and Intervenor-Plaintiff-Appellee.

JAMES M. HERSHLER, Assistant Attorney General of the State of New York (Eliot Spitzer, Attorney General; Michael Belohlavek, Assistant Attorney General, of counsel), New York, New York, for Defendants-Appellants.

MORDECAI NEWMAN, Assistant Corporation Counsel of the City of New York (Michael D. Hess, Corporation Counsel; Larry A. Sonnenshein, Assistant Corporation Counsel, of counsel), New York, New York, for Intervenors-Defendants-Appellants City of New York and The New York City Department of Social Services.

MICHAEL T. HOPKINS, Hopkins, Kopilow & Weil, Garden City, New York, for Intervenor-Defendant-Appellant Commissioner, Nassau County Department of Social Services.

Linda Trentacoste, Senior Assistant County Attorney (Alan D. Scheinkman, Westchester County Attorney; Stacey Dolgin-Kmetz, Chief Deputy County Attorney, of counsel), White Plains, New York, for Intervenor-Defendant-Appellant Westchester County Department of Social Services.

Derrick J. Robinson, Assistant County Attorney, Hauppauge, New York (Robert J. Cimino, Suffolk County Attorney, of counsel), for Intervenor-Defendant-Appellant Commissioner Suffolk County Department of Social Services.

Valerie J. Bogart, Center for Disability Advocacy Rights, Inc., New York, New York, for Amici Curiae AARP; The Alzheimer's Disease and Related Disorders Association, National Office & New York City Chapter; National Association of Protection and Advocacy Systems; National Senior Citizens Law Center; Medical Society of the State of New York; New York StateWide Senior Action Council; Gay Men's Health Crisis; Samuel Sadin Institute on Law of the Brookdale Center on Aging of Hunter College; Disabled in Action of Metropolitan New York, Ltd.; Friends and Relatives of the Institutionalized Aged; and Nursing Home Community Coalition of New York.

Before: WINTER, Chief Judge, WALKER, and CABRANES, Circuit Judges.

WINTER, Chief Judge:

This appeal arises from a class action challenging the failure of the City of New York and other appellants (collectively "New York") to provide certain personal-care services to Medicaid recipients. Judge Scheindlin held that New York's failure to include safety-monitoring services along with other personal care services violated: (i) the Medicaid Act, 42 U.S.C. 1396 et seq.; (ii) certain regulations promulgated under the Act, 42 C.F.R. 440.230(b), (c); 420.240(b); (iii) Section 504 of the Rehabilitation Act, 29 U.S.C. 794; and (iv) the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq. The district court entered a permanent injunction requiring that New York provide safety monitoring. We reverse.


The federal Medicaid program provides medical assistance to certain financially needy individuals. Medicaid is funded and run jointly by the federal and state governments. State participation in the program is optional. However, if a state chooses to participate, it must formulate a plan that includes certain mandatory forms of medical assistance. See 42 U.S.C. 1396a(a)(10)(A). The Medicaid Act defines "'[m]edical assistance'" as "payment of part on all of the cost of the [enumerated] care and services." Id. 1396d(a). States are also given the option of providing additional types of coverage. See id. 1396a(a)(10)(A), 1396d(a) (listing 27 different categories of medical assistance, 7 of which are mandated by 1396a(a)(10)(A)). Once the federal government approves a state Medicaid plan, it then subsidizes a significant portion of the cost of the coverage -- including optional services that the state has agreed to provide. See 42 U.S.C. 1396; Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985).

New York has enacted a Medicaid program, see N.Y. Soc. Serv. Law 363, that is administered by local social services districts within the parameters of federal and state regulation. See id. 62(1). As part of its program, New York has opted to include personal-care services, which are not federally required. See 42 U.S.C. 1396a(a)(10)(A), 1396d(a)(24); N.Y. Soc. Serv. Law 365-a(2)(e). 1. New York defines these services as "some or total assistance with personal hygiene, dressing and feeding; nutritional and environmental support functions; and health-related tasks." 18 N.Y.C.R.R. 505.14(a). A patient is entitled to receive personal-care services if they are medically necessary and "essential to the maintenance of the patient's health and safety in his or her own home." Id. Further, to be eligible, a patient must also have a stable medical condition and be self-directing, i.e., able to direct the personal-care service attendant and take responsibility for his/her "activities of daily living" ("ADLs"). Id. 505.14(a)(4)(i) & (ii). Even if a patient is non-self-directing, he/she is still eligible for home care services if another individual or agency can provide the direction. See id. 505.14(a)(4)(ii)(a)-(c).

New York has enumerated three types of personal-care services with a detailed list of the discrete tasks to be provided under each type. See id. 505.14(a)(6). These services include tasks associated with numerous ADLs, including bathing, toileting, taking medication, assisting with personal hygiene, dressing, feeding, light housekeeping, and shopping. See, e.g., id. 505.14(a)(6)(i)(a), (ii)(a).

To determine which services it will provide, New York uses so-called task based assessment ("TBA") programs. While the programs vary, they basically involve a medical request for home care from the patient's physician, which is followed by an assessment by a social worker or a nurse. See Rodriguez v. Debuono, 177 F.R.D. 143, 148 (S.D.N.Y. 1997), vacated, 162 F.3d 56 (2d Cir. 1998) (per curiam), amended by 175 F.3d 227 (2d Cir. 1999) (per curiam). Using a TBA form -- listing various tasks, the amount of assistance required, and possibly the times at which the tasks are to be performed -- the assessor determines the patient's needs. See id. The relevant agency then uses this form to decide which services it will provide. See id.

This class action challenges New York's failure to include safety monitoring as an independent task in the TBA or as a provided service. Appellees are members of a class that are eligible to receive Medicaid and who suffer from mental disabilities -- such as Alzheimer's disease -- that cause them to require assistance with daily living tasks. They have received personal-care services but allege that, without the provision of safety monitoring as an independent service, the services provided are inadequate to meet their medical needs and to allow them to continue living in their homes. See Rodriguez, 177 F.R.D. at 148-51 (discussing appellees). If safety monitoring were provided, a caregiver would be present in the patient's home to ensure that the person did not injure himself/herself in some manner, e.g., repeatedly taking medication because the patient had forgotten having taken it or failing to turn off the stove. Appellees argue that safety monitoring is comparable to the other personal-care services that New York does provide and that they cannot remain in their homes without it. They claim this omission constitutes unlawful discrimination against otherwise eligible, mentally disabled patients.

Initially, the district court granted partial class certification and entered a preliminary injunction ordering New York to include safety monitoring as a separate task on their TBA forms. See Rodriguez, 177 F.R.D. at 166-67. It found that appellees had demonstrated a substantial likelihood of success that the New York program violated the Medicaid Act, see id. at 156-61, and that they would suffer irreparable harm unless safety monitoring was provided, see id. at 165-66. We vacated that injunction, holding that because the district court had entered a stay pending appeal, it implicitly found that the harm that appellees would suffer was not so imminent as to be irreparable. Hence, preliminary injunctive relief was improper. See Rodriguez, 175 F.3d at 233-36.

On remand, the district court held that the TBA program...

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