State of Florida v. Richardson, Civ. A. No. 1826.
| Citation | 355 F. Supp. 1027 |
| Decision Date | 13 March 1973 |
| Docket Number | Civ. A. No. 1826. |
| Parties | STATE OF FLORIDA et al., Plaintiffs, v. Elliot L. RICHARDSON, Secretary of the U. S. Department of HEW, Defendant. |
| Court | United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida |
Eli H. Subin, Orlando, Fla., for Florida State Nursing Home Assn.
George D. Webster, and Arthur L. Herold, Washington, D. C., for American College of Nursing Home Administration.
William A. Geoghegan, and Thomas C. Fox, Washington, D. C., for American Nursing Home Assn.
Joe O. Rogers, Austin, Tex., for National Assn. of Examiners of Nursing Home Administrators.
S. Strome Maxwell, Asst. Atty. Gen., Department of Legal Affairs, The Capitol, Tallahassee, Fla., for State of Florida, and Florida Board of Examiners of Nursing Home Administrators and its members.
Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., Harlington Wood, Jr., Asst. Atty. Gen., Department of Justice, Washington, D. C., for defendant.
This cause is before the Court pursuant to notice upon plaintiffs' application for preliminary injunction. The Court already has under advisement defendant's motion for judgment on the pleadings or in the alternative for summary judgment; and plaintiffs' cross-motion for summary judgment. Counsel for the parties were present and heard and the Court having fully considered argument of counsel and memoranda of law in support of the respective positions of the parties as well as affidavits, pleadings and exhibits affixed thereto, enters the following findings of fact and conclusions of law as may be required by Rule 52(a), Federal Rules of Civil Procedure:
PRELIMINARY STATEMENT OF THE ACTION
This action for declaratory and injunctive relief arises over dispute of disbursement of funds to plaintiffs under the federal medical assistance program (MEDICAID) as established by Chapter XIX of Title 42, United States Code, Sections 1396 et seq. Under the aforementioned statutory provisions there is established a federal program whereby medical assistance is provided to individuals whose economic resources are otherwise insufficient to meet the costs of necessary medical services.1 This program is funded in part by the federal government and administered by participating states pursuant to a state plan submitted to and approved by the Secretary of the Department of Health, Education and Welfare, hereinafter referred to as the Secretary.
Plaintiff State of Florida is a participating member in the medicaid program. The individually named persons and associations participate in the medicaid program at the state levels and receive federal funds to operate nursing homes by virtue of state plans submitted to the Secretary for approval.2
On October 3, 1969, the State of Florida submitted its state plan to the Secretary which was ultimately approved; thereafter, and continuing until present, the State of Florida has been a participating member in the medicaid program and as such has been receiving federal monies to administer their plan. From these monies funded to the State of Florida by the federal government, local nursing homes have financially benefited to the extent they have received funds to assist in the operation and maintenance of the nursing homes.
Existing federal law3 provides in part that a state plan for medical assistance must:
"* * * include a State program which meets the requirements set forth in Section 1396g of this title, for the licensing of administrators of nursing homes; * * *."
It is further4 provided that licensing of nursing home administrators shall be implemented in the following manner:
"Licensing of nursing home administrators shall be carried out by the agency of the State responsible for licensing under the healing arts licensing act of the State, or, in the absence of such act or such an agency, a board representative of the professions and institutions concerned with care of chronically ill and infirm aged patients and established to carry out the purposes of this section."
Pursuant to this congressional direction, the Secretary on February 28, 1970, promulgated regulations in conformity therewith which regulations in part embodied that language contained in Section 1396g(b) of Title 42, United States Code.
In order to comply with the expressed policies of the Congress as implemented by the Secretary, the State of Florida and other participating states enacted legislation to provide for boards for the licensure of nursing home administrators.5
Thereafter, the various state regulatory schemes were put into effect in conformity with the congressional expression embodied in those regulations promulgated by the Secretary. On September 9, 1971, the Secretary, ostensibly acting pursuant to authority vested in him by Title 42, United States Code, Section 1302,6 proposed the following regulation (36 F.R. 18106) which provided in pertinent part that:
On March 29, 1972, the Secretary adopted this proposed regulation as a final regulation which retained the above referenced definition of "board". See 45 C.F.R. 252.10(b)(3). It was the Secretary's intention that this regulation implement Title 42, United States Code, Section 1396g(b), hereinbefore cited.7
As a result of the foregoing agency action plaintiffs contend in primis that the effect of the regulation prohibiting nursing home administrators from constituting a majority of the membership of a state board for licensure of nursing home administrators except for those nursing homes which are "a distinct part of a hospital" deprives plaintiffs of due process of law and equal protection under the law as well as contravening the letter and spirit of the Tenth Amendment.8
Defendant in turn filed his answer generally denying these allegations of constitutionally infirm conduct and raised defenses traditionally asserted by way of a motion to dismiss under Rule 12, Federal Rules of Civil Procedure.9
In addition to the general facts previously chronicled the Court now makes the following express findings of fact:
FINDINGS OF FACT
Since the promulgation of the contested regulation and continuing to present, plaintiffs have and are receiving federal funds under the medical assistance program.
Defendant has not terminated the flow of public assistance funds to plaintiffs nor has the State of Florida received formal notice that such federal funds to it will be terminated for noncompliance with the recently promulgated regulation made the subject matter of this litigation.
Existing statutory authority10 provides that before termination of public assistance payments to a participating member state the Secretary shall provide reasonable notice of and opportunity for hearing to the state whose plan is no longer in substantial compliance with the provisions of Title 42, United States Code, Section 1396a. In addition to this statutory remedy there is also provided means of prompt appellate review to the United States Court of Appeals from a final determination made by the Secretary under Section 1396c of Title 42, United States Code, when the agency determination is adverse to the interests of the state.11
In addition to not having affirmatively shown that public assistance funds to them will be terminated and that they have received actual notice to that effect, plaintiffs have failed to show that the Secretary will not accord them a full and fair hearing as contemplated by the above-described statutory scheme in the event that it is determined that plaintiff State of Florida should be cited for noncompliance with the provisions of Chapter XIX of Title 42.
To date no plaintiff has had a hearing of any kind before the defendant agency relative to compliance vel non with the provisions of Chapter XIX of Title 42 and the termination of funds thereunder.
In an attempt to sustain the grant of injunctive relief pendente lite plaintiffs have recited to the Court that the legislative machinery of the State of Florida must be put in motion on or before July 1, 1973, in order to prevent the loss of funds and to bring the Florida "state plan" into conformity with the regulation now challenged; and that by requiring this course of action before resolution of this litigation on the merits defendant is impeding the maintenance of the status quo between the parties and thereby potentially depriving plaintiffs the fruits of victory in the event they prevail on the merits of this controversy.
The Court finds such would not be the case. Plaintiffs have adequate statutory and administrative remedies to which they may avail themselves to prevent curtailment of funds under Chapter XIX of Title 42 before this controversy is determined on its merits.12 There has not been a sufficient showing of likelihood of loss or injury to plaintiffs which would be tantamount to an irretrievable loss necessary for the grant of injunctive relief.
Plaintiffs have not shown the likelihood that they will prevail on the merits of this action.
This Court has jurisdiction over the parties to this action.
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...for review nor standing in any of the plaintiffs, the court refused to reach the merits and dismissed the case. Florida v. Richardson, 355 F.Supp. 1027 (N.D.Fla.1973). On appeal the district court's ruling was reversed. Florida v. Weinberger, 492 F.2d 488 (5th Cir. On remand, plaintiffs and......
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Cotovsky-Kaplan Physical Therapy Associates, Ltd. v. U.S., 74-1831
...to their standing to assert it.9 The district court relied heavily, in denying the plaintiffs' standing, on State of Florida v. Richardson, 355 F.Supp. 1027 (N.D.Fla.1973). In that case, the district court concluded that national and state associations of private nursing homes, administrato......
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Webster v. Askew
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