Bellin v. Zucker

457 F.Supp.3d 414

Rosalind BELLIN, on behalf of herself and all others similarly situated, Plaintiff,

v.Howard A. ZUCKER, M.D., J.D., in his official capacity as Commissioner, New State Department of Health, and ElderServe Health, Inc. d.b.a. RiverSpring at Home., Defendants.

19 Civ. 5694 (AKH)

United States District Court, S.D. New York.

Signed April 30, 2020

Nina Keilin, New York, NY, Aytan Yehoshua Bellin, Bellin & Associates, LLC, White Plains, NY, for Plaintiff.

Rene Frances Hertzog, Office of the Attorney General, New York, NY, for Defendant Howard A. Zucker, J.D., M.D.

Brian Thomas McGovern, Mara Rose Lieber, Crowell & Moring LLP, New York, NY, Jane Bello Burke, Hodgson Russ LLP, Albany, NY, Joshua I. Feinstein, Hodgson Russ LLP, Peter Wiltenburg, Bond, Schoeneck & King PLLC, Buffalo, NY, Katherine Laura McCrink, Lori Rosen Semlies, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY, for Defendant ElderServe Health, Inc.

OPINION AND ORDER GRANTING MOTION TO DISMISS

ALVIN K. HELLERSTEIN, U.S.D.J.:

Rosalind Bellin, a Medicaid recipient, brings a putative class action alleging that new applicants for Medicaid-funded personal care services in New York are unlawfully denied certain appeal rights. Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). For the reasons that follow, Defendants’ motions to dismiss for failure to state a claim are granted.

BACKGROUND

The New York State Department of Health, led by its Commissioner, Defendant Howard Zucker, M.D., J.D. ("Zucker"), administers Medicaid in New York. See N.Y. Soc. Serv. Law § 363-a(1) (designating Department of Health as agency responsible for supervising the administration of Medicaid in New York). Through Medicaid, New York offers in-home personal care services. Personal care services include assistance with nutritional and environmental support functions like light cleaning and essential errands, as well as personal care functions like grooming, toileting, and feeding. 18 N.Y.C.R.R. § 505.14.

Obtaining Medicaid-funded personal care services in New York is a three-step process. First, an individual must enroll in Medicaid generally. Local social services districts determine eligibility for Medicaid. Second, the individual must consult a Conflict-Free Evaluation and Enrollment Center to determine eligibility for personal care services. New York contracts with non-party Maximus, Inc. ("Maximus") to carry out this step. Third, after Maximus determines that an individual is eligible, the individual begins applying to one or more managed long-term care ("MLTC") plans. The MLTC determines how much service an applicant or enrollee will receive, provides notice of decisions, processes grievances and appeals, and provides care. For purposes of the federal statutes and regulations, MLTCs are considered managed care organizations ("MCOs"). Defendant ElderServe Health, Inc. d.b.a. RiverSpring at Home ("RiverSpring") is an MLTC under contract with the state to carry out in-home personal care programs.

Plaintiff Rosalind Bellin is an 80-year-old woman who suffers from numerous illnesses that limit her ability to perform activities of daily living. Maximus determined she was eligible to receive in-home personal care through an MLTC plan. In April 2019, a nurse from RiverSpring evaluated Bellin to determine how many hours of personal care services she would receive. Following the evaluation, RiverSpring authorized personal care services to Bellin for eight hours per day, seven days per week.

Because Bellin and her family believed that eight hours per day would be insufficient, Bellin's attorney requested an appeal of that determination. RiverSpring said Bellin could not appeal because she was not yet enrolled with RiverSpring. On June 3, 2019, after Bellin enrolled, her attorney again requested an appeal. RiverSpring responded that Bellin still did not have a right to appeal the initial determination. Instead, it treated her request for an appeal as a request for additional hours. RiverSpring performed a second evaluation and determined that Bellin did not need additional hours because her condition had not changed.

Plaintiff filed this putative class action on June 18, 2019, alleging "a due process gap—an unlawful failure to afford statutory and constitutionally protected appeal rights to certain new applicants for Medicaid-funded services." Compl. ¶ 1. She seeks to represent a class defined as "[a]ll current and future New York State Medicaid recipients who have applied or will apply for Medicaid-funded personal care services from MLTCs that have contracts with Zucker." Compl. ¶ 67. There is also a subclass defined as "[a]ll current and future New York State Medicaid recipients who have applied or will apply for Medicaid-funded personal care services from RiverSpring." Id. Plaintiff brings two causes of action arising under 42 U.S.C. § 1983. The first alleges that both Defendants violate 42 U.S.C. §§ 1396a(a)(3), 1396a(a)(8), 1396u-2(a)(5)(A), 1396u-2(a)(5)(B)(iii), 1396u-2(b)(4) and 42 C.F.R. §§ 438.10(g)(2)(xi), 438.402(a), (c), 438.404(a), (b), (c), 438.406, 438.408. Plaintiff further alleges in the first cause of action that Zucker violates 42 U.S.C. § 1396u-2(b)(1) and 42 C.F.R. §§ 438.210(c). The second cause of action alleges a violation of the Fourteenth Amendment. Plaintiff seeks injunctive and declaratory relief, including an order directing Defendants to provide notice of the right to appeal initial determinations by MLTCs and directing Defendants to process appeals of initial determinations.

Approximately one month after the complaint was filed, RiverSpring approved 24-hour in-home personal care for Bellin.¹ RiverSpring authorized the increased hours because Bellin's condition changed. She has been receiving 24/7 in-home personal care from RiverSpring since July 23, 2019.

Defendants each moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim. I held oral argument on Defendants’ motions on March 4, 2020, following which I permitted the parties to file brief supplemental letters addressing the issues discussed at oral argument.

DISCUSSION

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). Plaintiff bears the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. Id. On a motion to dismiss under Rule 12(b)(6), I "consider the legal sufficiency of the complaint, taking its factual allegations to be true and drawing all reasonable inferences in the plaintiff's favor." Harris v. Mills , 572 F.3d 66, 71 (2d Cir. 2009). I address the question of subject matter jurisdiction first. See Davis v. Kosinsky , 217 F. Supp. 3d 706, 707 (S.D.N.Y. 2016) ("When presented with motions under both Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the first issue is whether the Court has the subject matter jurisdiction necessary to consider the merits of the action.").

I. Plaintiff Has Standing

"A case is moot, and accordingly the federal courts have no jurisdiction over the litigation, when ‘the parties lack a legally cognizable interest in the outcome.’ " Fox v. Bd. of Trustees of State Univ. of N.Y. , 42 F.3d 135, 140 (2d Cir. 1994) (quoting Cty. of Los Angeles v. Davis , 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) ). "If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot." Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 72, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013) (quoting Lewis v. Cont'l Bank Corp. , 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) ); see also Comer v. Cisneros , 37 F.3d 775, 798 (2d Cir. 1994) (In a class action, "if the claims of the named plaintiffs become moot prior to class certification, the entire action becomes moot.").

Plaintiff concedes that she has been receiving 24/7 in-home personal care from RiverSpring since July 2019, the month after the complaint was filed. Defendants argue her claim is now moot, divesting the Court of subject matter jurisdiction, because she is receiving the full scope of services she would have sought through an appeal.

I hold that Plaintiff's case satisfies the inherently transitory exception to the mootness doctrine. "Under that exception, a case will not be moot, even if the controversy as to the named plaintiffs has been resolved, if: (1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class; and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint." Salazar v. King , 822 F.3d 61, 73 (2d Cir. 2016) (internal quotation marks omitted). Satisfaction of the inherently transitory exception "allows ... claims to ‘relate back’ to the time of the filing of the complaint with class allegations." Id.

Under federal regulations, if a Medicaid enrollee requests additional services, an MCO must reach a decision within 14 days, or if the circumstances merit an extension, within 28 days. 42 C.F.R. § 438.210(d)(1). Thus, another plaintiff seeking to challenge the inability to appeal an initial determination regarding personal care services is likely to experience the same conditions as Bellin: Because the individual cannot appeal the initial determination, he or she will go ahead and enroll with an MLTC offering suboptimal hours, then request more hours, and receive a decision within 28 days. If, as with Bellin, a subsequent determination is favorable, the claim becomes moot before a class can be certified. The fact that...