Bowen v. Rubin

385 F.Supp.2d 168

Clement BOWEN, et al., Plaintiffs, v. Jacob RUBIN d/b/a Leben Home for Adults, Leben Home for Adults, Americare Inc., Americare Certified Special Services Inc., Martin Kleinman, Diane Ahearn, Parkway Hospital, Inc., Jamille Peress, and Harry Josifidis, aka Harry Josfidis, Defendants.

No. 01CV0070NGSMG.

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

July 29, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lisa E. Cleary, Patterson, Belknap, Webb & Tyler, Jeanette M. Zelhof, MFY Legal Services, Inc., New York, NY, Timothy A. Clune, Albany, NY, for Plaintiffs.

Marcy Dorothy Sheinwold, Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY, James J. Girvan, Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, NY, Barry G. Saretsky, Saretsky Katz Dranoff & Glass, L.L.P., New York, NY, for Defendants.

ORDER

GERSHON, District Judge.

Plaintiffs, a group of mentally disabled individuals and their estates, bring claims for discrimination under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; civil rights conspiracy claims under 42 U.S.C. § 1985(3) and § 1986; and state law claims under the New York Human Rights Law, N.Y.S. Exec. Law §§ 290 et seq., and common law. On May 17, 2002, all of the defendants' motions to dismiss the complaint were denied. See Bowen v. Rubin, 2002 WL 32587407, 2002 U.S. Dist. LEXIS 25283 (E.D.N.Y.2002). On July 29, 2004, I approved a settlement by defendants Jacob Rubin d/b/a Leben Home for Adults, Leben Home for Adults, Parkway Hospital, Inc., Jamille Peress, and Harry Josefidis, and third-party defendant National Union Fire Insurance Company. The remaining, nonsettling defendants are Americare, Inc. ("Americare") and Americare Certified Special Services, Inc. ("ACSS") (collectively, the "Americare Defendants"), which contracted to perform home health care and nursing services at the Leben Home; Martin Kleinman, president and sole shareholder of Americare and ACSS; and Diane Ahern, a former employee of ACSS. The Americare Defendants and Martin Kleinman now move for summary judgment on all of plaintiffs' claims.

BACKGROUND

Unless otherwise indicated, the following facts are undisputed.

Plaintiffs are mentally disabled individuals who resided at the Leben Home Adult Care Center in December 1997 and January 1998.¹ While they resided there, each plaintiff received prostate surgery, which was performed by Dr. Peress at Parkway Hospital after an initial consultation at the Leben Home. It is undisputed that these surgeries, described by defendants at oral argument as "heinous acts," were not medically necessary and that they were performed without plaintiffs' informed consent. Plaintiffs further contend that they were targeted to receive these unnecessary surgeries because of their mental disability.

In January 1996, the Americare Defendants entered into an agreement with Jacob Rubin, the owner and operator of the Leben Home, to provide nursing and home health care services to Leben Home residents. Americare provided home health aide services, such as assistance with bathing, dressing, and other activities of daily life, and ACSS provided nursing care services. Defendant Kleinman negotiated the agreement with Rubin. The Americare Defendants were reimbursed for the cost of the services they provided to the Leben Home residents by Medicare and Medicaid directly.

Under the terms of the agreement between the Americare Defendants and the Leben Home, as of October 1997, the Americare Defendants paid Leben Home rent of $2,237.50 per month for 895 square feet of office space inside the Leben Home out of which Americare's activities in the Home were operated. Beginning in October 1997, the Americare Defendants paid an additional management services fee of $984.41 per month for utilities, supplies, maintenance of the leased space, and administrative support, including answering phones, photocopying, faxing, and file maintenance. When asked about the management services agreement between Leben Home and Americare at his deposition, Jacob Rubin asserted his Fifth Amendment privilege against self-incrimination.

The parties characterize these payments in very different ways. Noting that several doctors also paid for space rental at the Leben Home, but actually saw patients in Americare's offices, plaintiffs contend that doctors, as well as the Americare Defendants, effectively paid for access to the Leben Home residents, whom they could provide with services that were charged to Medicare and Medicaid. Defendants cite an appraisal of the office space and argue they were paying fair market value for their leased office space inside Leben Home.

At the time plaintiffs underwent the prostate surgeries that are the subject of this litigation, Diane Ahearn was employed by ACSS in the Leben Home. Her exact job title and the nature of her duties is the subject of dispute among the parties. Ms. Ahearn testified that she was hired as an in-house coordinator to coordinate the activities of the health aides working in the Leben Home, even though ACSS was the corporation which provided nursing care services. She stated that her responsibilities included scheduling of home health aides, finding replacement workers when aides called in sick or were on vacation, acting as a liaison between the Leben Home and the home health aides, coordinating paperwork, and acting as a liaison between nurses and doctors administering care to Leben Home residents.

Ms. Ahearn also testified that she had the title "medical director" while she worked at the Leben Home. This title was listed on a board in the lobby of the Leben Home and was used by Ms. Ahearn when she signed Leben Home transfer forms, used when residents were transported to other facilities, including Parkway Hospital, where the unnecessary surgeries were performed. Ms. Ahearn testified that she inherited the title from her predecessor at the Leben Home and that no responsibilities were associated with the title.

It is undisputed that Ms. Ahearn scheduled appointments with Dr. Peress for Leben Home residents, including the plaintiffs in this case. Defendants maintain that this was not part of her job duties as in-house coordinator for ACSS. Janice Spillane, who worked as an administrator at ACSS from December 1996 to August 1998, testified that Ms. Ahearn was responsible for supervising home health aides at the Leben Home but that it was not Ms. Ahearn's responsibility to set up appointments with doctors.

Eileen Hendrickson, a nurse at the Leben Home, testified that Ms. Ahearn coordinated the home health aides, assigning aides to patients and processing paperwork related to the aides. Ms. Hendrickson also testified that Ms. Ahearn coordinated the medical doctors that came into the home to see the patients, so that a patient's nurse would not see the patient on the same day as a doctor, in conformance with the regulatory guidelines, which provide that a patient may not receive two "skilled visits" on the same day. Ms. Hendrickson testified that her supervisor at Americare told her that Ms. Ahearn was responsible for coordinating the doctors' visits.

Another Americare nurse who worked at the Leben Home, Vearletha Davis, testified that Ms. Ahearn was responsible for assigning home health aides to Americare clients. Anything that had to be addressed to the home health aides had to go through Ms. Ahearn. Ms. Davis also testified that Ms. Ahearn would call the patients to see doctors when they visited the home, and the doctors saw patients in Ms. Ahearn's office. Ms. Davis understood that Ms. Ahearn had "dual bosses," because she answered to both Jacob Rubin and Americare. Guylene Charles, also an Americare nurse at the Leben Home, testified that Ms. Ahearn was introduced to her as the "medical liason," and that Ms. Ahearn was responsible for scheduling patients for doctors' visits. Ms. Charles also testified that doctors saw patients in Ms. Ahearn's office.

Ms. Ahearn's immediate supervisor was Josephine Stark, Americare's Leben Home Supervisor. Ms. Stark was not at Leben Home every day. Ms. Ahearn had no day-to-day supervisor at the Leben Home.

Mr. Kleinman was aware that the Americare nursing supervisor was not at the Leben Home on a daily basis. Mr. Kleinman visited the Leben Home on at least two occasions. Ms. Ahearn testified that she met him on a couple of occasions when he visited the Leben Home. She stated, "I could remember him walking around, with Mr. Rubin and Mr. Rubin saying — did you say hello to your boss and of course my answer always is which boss, and he says, `this is Mr. Kleinman, remember Mr. Kleinman?'" Ms. Ahearn explained that, when she said "which boss," she meant that she worked both for the doctors and for Americare, and both were her bosses.

At the same time she was working for ACSS, Ms. Ahearn accepted payments from several doctors. These payments were in return for her services in scheduling Leben Home residents for doctors' appointments and making ambulette arrangements for the residents to go to their appointments. Ms. Ahearn accepted payments from Dr. Peress, and arranged for patients to receive urologic consultations from him. Dr. Peress performed the prostate surgeries on plaintiffs at Parkway Hospital over a four week period from December 30, 1997 to January 29, 1998.

Ms. Ahearn was involved in obtaining plaintiffs' signatures on consent forms for the prostate surgeries. Dr. Peress saw patients at the Leben Home for an initial consultation in Ms. Ahearn's office, at which time the consent forms were signed. Ms. Ahearn testified that the signatures were obtained at the Home, "where things were nice and quiet, so when they went to the hospital or if they needed to go to the hospital, the paperwork would be done." After Dr. Peress met with patients at the Leben Home, Ms. Ahearn...