Samele v. Zucker
| Decision Date | 02 August 2018 |
| Docket Number | 2:17-cv-03397 (ADS)(AKT) |
| Citation | 324 F.Supp.3d 313 |
| Parties | Gemma SAMELE, Selma Roher by her next friend Melanie Roher, and Salvatore Guadagna, individually and on behalf of all persons similarly situated, Plaintiff(s), v. Howard ZUCKER, as Commissioner of the New York State Department of Health, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
New York Legal Assistance Group, Attorneys for the Plaintiffs, 7 Hanover Square, 18th floor, New York, NY 10004, By: Benjamin Wait Taylor, Esq., Elizabeth A. Jois, Esq., Julia Grossman Russell, Esq., Jane Greengold Stevens, Esq., Of Counsel
Office of the New York State Attorney General, Attorneys for the Defendant, 200 Old Country Road, Suite 460, Mineola, NY 11501, By: Dorothy O. Nese, Assistant Attorney General,
The Plaintiffs Gemma Samele ("Samele"), Selma Roher ("Roher"), And Salvatore Guadagna ("Guadagna") (the "Plaintiffs") commenced this putative class action against the Defendant Howard Zucker ("Zucker," or the "Commissioner"), as Commissioner of the New York State Department of Health ("DOH"), alleging that the Defendant violated the Medicaid Act 42 U.S.C. § 1396 et seq. ; the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12131 et seq. ; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ; and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.
Presently before the Court is a motion to dismiss by the Defendant pursuant to Federal Rule of Civil Procedure (" FED. R. CIV. P. " or "Rule") 12(b)(1) and Rule 12(b)(6), as well as a motion by the Plaintiffs to certify the case as a class action pursuant to Rule 23. For the following reasons, the Defendant's motion is granted in part and denied in part, and the Plaintiffs' motion is denied without prejudice with leave to renew.
The Plaintiffs are all Medicaid and Medicare recipients, and current or former enrollees of GuildNet, a New York State managed long-term care plan ("MLTCP"), that provides home care services throughout New York State.
The Commissioner required the Plaintiffs to enroll in a MLTCP in order to receive long-term services funded by Medicaid.
On or about March 20, 2017, GuildNet sent a letter (the "March 2017 Letter") informing its enrollees in Nassau, Suffolk, and Westchester counties that it would not be offering managed long term care ("MLTC") services beginning June 1, 2017. Enrollees were told that they should select a new MLTCP before May 18, 2017 to assure a smooth transition, and that they would continue to receive services from GuildNet until the transfer to the new plan was complete.
The Plaintiffs allege that the DOH did not require other MLTCPs to offer the same level of care that they had received from GuildNet, or to provide notice before reducing care.
(Ex. B. to Am. Compl.).
Samele received 24-hour home care services from GuildNet since 2012. After Samele received the March 20 Letter, her son began looking for an MLTCP that would provide her with the same level of care as GuildNet. On September 1, 2017, Samele enrolled in Elderplan HomeFirst ("Elderplan"), which agreed to provide her with 24-hour home care. Elderplan apparently closed in several counties in 2016, and announced that it intends to close in Suffolk County "imminently." (Am. Compl. ¶ 180). Samele has received 24-hour home care since the March 20 Letter.
Roher received 24-hour home care from GuildNet beginning in October 2016. After she received the March 20 Letter, her daughter contacted other MLTCPs. On or about November 1, 2017, Roher enrolled in Wellcare, which offered her 24 hour home care. Roher has received 24-hour home care since the March 20 Letter.
Guadagna received 24-hour live-in care, as well as Adult Day Health Care ("ADHC"). He attended the Adult Day Health Care program one day a week, and received medical model adult day health services, including physical therapy, occupational therapy, and a bath. After receiving the March 2017 Letter, Guadagna's daughter reached out to MLTCPs to find one that would offer the same services as GuildNet. At the time, he was temporarily residing in a rehabilitation center where he was recovering from an episode of gout. On May 1, 2017, he enrolled in Northwell. Northwell offered Guadagna 24-hour live-in care, but did not approve his ADHC services. As a result, Guadagna came home from the rehabilitation center on or about May 1, 2017. Guadagna has not received occupational therapy or physical therapy since he transferred to Northwell, and has not had a proper bath or shower since that time. On November 1, 2017, Guadagna transferred to Agewell. Agewell also agreed to provide 24-hour care, but did not agree to provide ADHC services. On December 19, 2017, the Commissioner sent a letter to Guadagna informing him that it had directed Agewell to restore his services to the level he received from GuildNet. The services would have to continue for 120 days, or until he agreed to a new plan of care.
On September 22, 2017, after the Plaintiffs initiated this action, the Commissioner issued MLTC Policy 17.02: MLTC Plan Transition Process—MLTC Market Alteration (the "Transition Policy"), which updated the DOH's transition policy. The Transition Policy was sent to all MLTCP providers in New York State, and was posted on the DOH website.
Pursuant to the Transition Policy, MLTCPs must send notices to affected consumers when they intend to discontinue operations. The notices must list available plans; a direction to select a new plan within sixty days of the date of the letter; and state that any enrollee who does not select a new plan within that time frame will be automatically assigned to a new MLTCP. The DOH will review notices prior to their transmittal, and will require Maximus, a DOH contractor, to send out additional notices to affected enrollees to help them select a new MLTCP. The new MLTCP must provide enrollees with the same level of services that they previously received for 120 days. During that 120 days, the MLTCP must conduct a new assessment of the enrollee to determine their plan and services.
On September 25, 2017, Maximus began sending "Outreach Letters" to affected GuildNet enrollees. The Outreach Letters were drafted by the DOH. The first Outreach Letter told current GuildNet members who were concerned about maintaining their current service levels to remain with GuildNet until the Transition Policy is in place. As to those former GuildNet enrollees who were receiving fewer services with a new MLTCP than they had with GuildNet, the letter instructed them to contact New York Medicaid Choice ("NYMC") within ninety days. NYMC would then determine whether those individuals were eligible to have their previous services restored. Individuals would be so eligible if they left GuildNet after March 20, 2017; were still eligible for Medicaid; and received fewer hours of care and services from their current MLTCP than they had under GuildNet.
On October 16, 2017, Maximus sent the second Outreach Letter to individuals who were still enrolled in GuildNet. The letter stated that the DOH had finalized the Transition Policy. GuildNet enrollees had sixty days to select a new MLTCP. If they did not select a new plan by December 15, 2017, one would be selected for them, and their enrollment would be effective on January 1, 2018. The new MLTCP would provide the same level of services for 120 days after the transfer date, unless the enrollee and the plan agreed to a different plan before that time. The letter included a list of MLTCPs available in the Medicaid recipient's area, and told the recipient to call NYMC to select an MLTCP.
On November 30, 2017, Maximus sent the third Outreach Letter to affected current and former GuildNet enrollees. The third Outreach Letter referenced the first two Outreach Letters and reminded current and former GuildNet enrollees of their rights to maintain the levels of care they received from GuildNet, and of the impending deadlines outlines in the first two Outreach Letters.
On June 6, 2017, Samele, along with former Plaintiffs Marie Turano and Leonard Turano, commenced this action by filing a complaint. The original complaint alleged violations of the Medicaid Act, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the ADA, and the Rehabilitation Act. The original complaint sought an order certifying the action as a class action; declaratory and injunctive relief; costs; and attorneys' fees.
On August 3, 2017, the Defendants filed an answer to the original complaint.
On August 31, 2017, the original Plaintiffs filed a motion to amend the complaint pursuant to Rule 15 to add additional Plaintiffs and additional facts. On November 4, 2017, the Court granted the Plaintiffs' motion to amend their complaint.
The amended complaint added Roher and Guadagna as Plaintiffs. The amended complaint alleged the same violations as the original complaint, and sought the same types of relief. Specifically, the Plaintiffs seek an order declaring that the Commissioner's failure to ensure that the Plaintiffs would have their long-term benefits maintained at current levels unless and until they have notice and a fair hearing to challenge any proposed reduction or...
To continue reading
Request your trial
-
West v. Gobeille
...when the Complaint was filed. Outcomes after that date are assessed as a matter of mootness, not standing. See Samele v. Zucker , 324 F. Supp. 3d 313, 327 (E.D.N.Y. 2018) ("Standing relates to whether a litigant has a personal stake at the commencement of an action, while mootness ensures t......
-
E. 18th Mgmt. Corp. v. CSC ServiceWorks, Inc.
...matter jurisdiction. 3. Mootness ensures that the parties interests exist throughout the "life" of the lawsuit. Samele v. Zucker, 324 F. Supp. 3d 313, 327 (E.D.N.Y 2018) (citing Comer v. Cisneros, 37 F. 3d 775, 798 (2d Cir. 1994)). A party cannot moot its case by ending its unlawful conduct......
-
Nardino v. Credit Control, LLC, CV 17-03772 (ADS) (AKT)
...Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010) (citing Makarova, 201 F.3d at 113); Samele v. Zucker, 324 F. Supp. 3d 313, 321-22 (E.D.N.Y. 2018). "Though the Court must accept the factual allegations contained in the [Complaint] as true, it will not draw argumentat......
-
Sholopa v. Turk Hava Yollari A.O., Inc.
...of an action, while mootness ensures the litigant's interest exists " "throughout the life of the lawsuit" " Samele v. Zucker , 324 F. Supp. 3d 313, 326 (E.D.N.Y. 2018), citing Comer v. Cisneros , 37 F. 3d 775, 797-798 (2d Cir. 1994) (internal citations and quotation marks omitted). If the ......