Yaretsky v. Blum

• Decision Date: 16 January 1979
• Docket Number: D,No. 13,13
• Citation: 592 F.2d 65
• Court: U.S. Court of Appeals — Second Circuit
• Parties: William YARETSKY, Ralph Cuevas, and the Gray Panthers, New York Chapter, Appellees, and Mary Foley, Rae Wolper, Rose Shulman, Bessie Rossoff, Pauline Ashkenazy, Sadie Birenzweig, Martha Zahl, Edna Kolman, James Lundy, and Philomena Latona Lundy, on behalf of themselves and all others similarly situated, Intervenors- Appellees, v. Barbara BLUM, Individually and as Acting Commissioner of the New York State Department of Social Services, Robert Whalen, M. D., Individually and as Commissioner of the New York State Department of Health, Appellants. ocket 78-7077.

Page 65

592 F.2d 65

William YARETSKY, Ralph Cuevas, and the Gray Panthers, New

York Chapter, Appellees,

and

Mary Foley, Rae Wolper, Rose Shulman, Bessie Rossoff,

Pauline Ashkenazy, Sadie Birenzweig, Martha Zahl, Edna

Kolman, James Lundy, and Philomena Latona Lundy, on behalf

of themselves and all others similarly situated, Intervenors- Appellees, v. Barbara BLUM, Individually and as Acting Commissioner of the

New York State Department of Social Services, Robert Whalen,

M. D., Individually and as Commissioner of the New York

State Department of Health, Appellants.

No. 13, Docket 78-7077.

United States Court of Appeals,

Second Circuit.

Argued Oct. 12, 1978.

Decided Jan. 16, 1979.

Emanuel M. Kay, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Kevin J. McKay, Asst. Atty. Gen., New York City, of counsel), for appellants.

John E. Kirklin, The Legal Aid Society, New York City (Philip M. Gassel, Legal Services for the Elderly Poor, New York City, Joan Mangones and David Goldfarb, The Legal Aid Society, Staten Island, N. Y., Kalman Finkel, The Legal Aid Society, New York City, and Ellice Fatoullah, MFY Legal Services, Inc., New York City, of counsel), for appellees.

Before LUMBARD and OAKES, Circuit Judges, and MacMAHON, District Judge. ^*

PER CURIAM:

This is an appeal from an order of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, ¹ dated January 5, 1978, but filed January 10, 1978. The order granted appellees' motion for a preliminary injunction against appellants to prevent them from failing to provide resident patients in health care facilities with timely and adequate written notice of the decision to transfer them to a reduced care facility and to reduce or terminate their Medicaid benefits. On January 19, 1978, appellants filed a motion under Fed.R.Civ.P. 59(e) to amend the preliminary injunction to allow the health care facility itself to provide the notice required of the state or local supervisory agencies and to withhold from the patient information in his file if disclosure was "medically contraindicated." On February 6, 1978, while the motion was pending, appellants filed a notice of appeal from the preliminary injunction. On February 21, 1978, the district court denied appellants' Rule 59(e) motion. On appeal, appellants raise essentially the two points that they made in the Rule 59(e) motion. Appellees defend on the merits the district court's preliminary injunction as issued, and thus the district court's denial of the Rule 59(e) motion, but they also question this court's jurisdiction over the appeal. We address the jurisdiction issue first.

Appellees argue that the notice of appeal was filed during the pendency of the Rule 59(e) motion and a premature notice of appeal is "a legal nullity." Appellants suggest that because they filed the Rule 59(e) motion fourteen days after the date of the district court's order, albeit nine days after the date of the filing of the order, the motion was untimely and thus did not toll the period for filing the appeal. We hold otherwise, however.

Although the district court's order was dated January 5, 1978, the clerk entered the order in the docket on January 10, 1978. Under Fed.R.App.P. 4(a), which speaks of the "entry of judgment" as the crucial date, and Fed.R.Civ.P. 58 and 79(a), which provide that a judgment becomes effective only when entered in the docket, the date of the entry in the docket, not the date of the order, begins the running of time for post-trial motions and appeals. See, e. g., Neely v. Merchants Trust Co. of Red Bank, 110 F.2d 525 (3d Cir. 1940); See 6A Moore's Federal Practice, P 58.03(1) (2d ed. 1973).

The appeal was thus premature. Although the filing of a notice of appeal within the prescribed time limits is a jurisdictional prerequisite to the appeal itself, the better rule is that in the absence of prejudice to the appellee, the court should treat a premature appeal as from a final judgment so as to avoid denial of justice, expense, and inconvenience. This rule applies to appeals that are premature not only because they were filed between the pronouncement of judgment and the entry of judgment, See Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953), but also because they were filed while a Rule 59 motion was pending. See, e. g., Dougherty v. Harper's Magazine Co., 537 F.2d 758, 762 (3d Cir. 1976); Stokes v. Peyton's Inc., 508 F.2d 1287 (5th Cir. 1975); Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971); See 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3915, at 599-600 (1976). Appellees have alleged no prejudice, nor could they, because they had notice of the grounds for appeal from the Rule 59(e) motion itself.

We thus reach the two issues raised on the merits. Appellants argue first that the district court erred in refusing to allow the health care facility itself to provide the notice to the resident patient of the decision to transfer him to a reduced care facility and to reduce or terminate his Medicaid benefits. The district court's order, which enjoined appellants from implementing this single notification procedure, required adherence to the dual notification procedure previously in effect. Under that procedure, the facility's Utilization Review Committee informs the patient of its decision that his continued stay at the facility is not medically necessary and that a lower level of care would be more suitable to his condition; the local social services agency or office then notifies the patient of his right to a fair hearing to review the Committee's decision and the due process rights to which the patient is entitled at the hearing. Appellants contend, although we note that there is no supporting evidence in the record, that the dual notification procedure "proved to be cumbersome to administer, inefficient and confusing to the patient" and that the single notification procedure, by contrast, "would benefit the patient and help streamline the complex network of Medicaid regulations." But regardless of how we may feel about seemingly unnecessary bureaucratic red tape, the HEW regulations clearly require the state or local agency to provide the notice of transfer or reduction or termination of benefits, 45 C.F.R. § 205.10(a)(4)(i), ² and further seem to preclude delegation of the responsibility. Id. § 205.100(b)(1). ³ Appellants cite no authority for allowing a private party such as the health care facility to provide the notice required by due process before the State can reduce public assistance benefits.

Moreover, it is not irrational to treat the functions of the Utilization Review Committee and the state and local social services agencies as diverse. As a part of the process of keeping a patient informed about his condition and proposed medical treatment, the Committee is the one to inform the patient of the decision to reduce the level of care that he is receiving; consistent with this doctor-patient framework, 42 C.F.R. § 450.19(a)(3)(ix)(F) requires the Committee to provide this preliminary notice. The state agency, however, bears ultimate responsibility for informing the patient of the resulting reduction or termination of his health care benefits and advising him of his due process rights to a hearing to review the Committee's decision. If, as appellants contend, the proposed single notification system is clearly superior and would not result in the failure of patients to receive written notice of their fair hearing rights, as happened to appellees in this case, the remedy lies in persuading HEW to amend its regulations. ⁴ Neither appellants nor the court can unilaterally change the federally imposed notification procedure.

Appellants also challenge, in a somewhat appealing argument, the district court's refusal to exclude "medically contraindicated" information from the scope of the disclosure required of the agency to the patient preparing the defense that he will use at the fair hearing. The HEW regulations provide that "(t)he claimant, or his representative, shall have adequate opportunity . . . (t)o examine the contents of his case file and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing as well as during the hearing." 45 C.F.R. § 205.10(a)(13)(i). Thus the regulations requiring disclosure do not facially exempt medically contraindicated information. See Feld v. Burger, 424 F.Supp. 1356, 1363 (S.D.N.Y.1976); Cf. Areizaga v. Quern, 442 F.Supp. 168, 172-73 (N.D.Ill.1977) (no exemptions from disclosure); Dunbar v. Toia, 61 A.D.2d 914, 403 N.Y.S.2d 4 (1st Dep't), Aff'd, 45 N.Y.2d 764, 408 N.Y.S.2d 495, 380 N.E.2d 321 (1978) (same). Moreover, an exemption for medically contraindicated information would tend to frustrate the purpose of the requirement of disclosure. As appellees point out, very often the medically contraindicated information will be the information most useful to a patient in contesting an adverse Utilization Review Committee decision. If the information indicates a condition or prognosis unfavorable enough to upset the patient severely, perhaps it also is unfavorable enough to provide the patient with a defense against the Committee's determination that he does not require a continuation of the level of medical care that he has been receiving.

Appellants' brief on appeal argues that failure to disclose to the patient medically contraindicated information would not make the information unavailable to the patient at the fair hearing. Appellants wish to "emphasize ( ) that the information withheld from the patient himself will be disclosed to the patient's representative or relative." But, as appellees point out, a substantial proportion of health care facility patients may not have a representative or relative sufficiently concerned about their...