Cassidy v. Zucker

1

ROBIN CASSIDY, individually and on behalf of all persons similarly situated, Plaintiff, v. HOWARD ZUCKER, as Commissioner of the New York State Department of Health, Defendant.

No. 17-CV-03397 (JMA) (AKT)

United States District Court, E.D. New York

September 30, 2021

MEMORANDUM AND ORDER

JOAN M. AZRACK, UNITED STATES DISTRICT JUDGE

Former plaintiffs Marie Turano, Leonard Turano and Gemma Samele individually and on behalf of all persons similarly situated commenced this class action against Howard Zucker (“Defendant”), as Commissioner of the New York State Department of Health (“DOH”), on June 6 2017. (ECF No. 1.) An Amended Complaint was filed on November 20, 2017, inter alia, adding Selma Roher and Salvatore Guadagna (“Guadagna”) as named Plaintiffs. (ECF No. 28.) The Amended Complaint sought relief for Defendant's alleged violations of 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 42 U.S.C. § 1983 (“Section 1983”), for the alleged deprivation of the named Plaintiffs' and putative class members' statutory rights under the Medicaid Act, 42 U.S.C. § 1396a(a)(3) and its implementing regulations, and their constitutional rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. (ECF No. 28.)

On November 21, 2017, Marie Turano and Leonard Turano voluntarily dismissed their claims against the Defendant pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii), and they were removed as Plaintiffs from the action. (ECF No. 33.) On August 2, 2018, Judge Spatt granted Defendant's motion to dismiss with regard to Samele and Roher and dismissed their claims for lack of standing on the basis that they suffered no injury in fact. (ECF no. 71.) Judge Spatt, however, denied the motion with regard to Guadagna, who was then the only remaining named Plaintiff in the action, finding that the inherently transitory exception to the mootness doctrine applies to claims such as his. (ECF No. 71.)

On August 8, 2019, Judge Spatt granted Guadagna's motion for class certification and appointed Guadagna as class representative. (ECF No. 125.) The class (collectively with the class representative, “Plaintiffs”) currently consists of “[a]ll Medicaid recipients who were enrolled in the GuildNet managed long-term care plans in Suffolk, Nassau, or Westchester County as of March 1, 2017 and who suffered reductions in care without prior notice and opportunity to be heard when they transferred to new managed long-term care plans prior to October 2, 2017 as a result of GuildNet's closure in their counties of residence.”^[1] (ECF No. 141.)

Guadagna, on behalf of the certified class, filed a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking partial summary judgment on Plaintiffs' Section 1983 claims and Defendant cross-moved for summary judgment dismissing the Amended Complaint in its entirety. (ECF Nos. 120, 131-134, 139 & 144.) While the cross motions for summary judgment were sub judice, Guadagna passed away. (See ECF No. 159.) On July 24, 2020, Robin Cassidy (“Cassidy”), a member of the certified class, moved for leave to intervene as class representative and for an order compelling Defendant to provide certain discovery. (ECF No. 170.)

Defendant likewise sought to compel certain discovery from Plaintiffs after the motions for summary judgment were filed. (ECF No. 148.) On September 9, 2020, Judge Feuerstein referred Cassidy's motion for leave to intervene, Defendant's motion to compel and the motions for summary judgment to Magistrate Judge A. Kathleen Tomlinson. (ECF No. 167.)

On November 30, 2020, Judge Tomlinson denied Defendant's motion to compel without prejudice. (ECF No. 180.) Judge Tomlinson issued a Report and Recommendation (“SJ R&R”) dated March 19, 2021, which recommends that summary judgment be GRANTED (i) in favor of Plaintiffs on their Section 1983 claims alleging violations of the Medicaid Act, its implementing regulations, and their procedural due process rights, and (ii) in favor of Defendant dismissing Plaintiffs' claims alleging violations of the ADA, the Rehabilitation Act and their substantive due process rights; and that the motions otherwise be DENIED. (ECF No. 181.) Defendant filed a timely objection to the SJ R&R's recommendations that: (i) summary judgment be granted in favor of Plaintiffs on their Section 1983 claims alleging violations of the Medicaid Act, its implementing regulations and their procedural due process rights, and (ii) Defendant's summary judgment motion be denied on Defendant's arguments that Plaintiffs' claims failed on the merits, that their claims and requests for relief were moot, and that Plaintiffs' request for injunctive relief must be denied for lack of standing. (ECF No. 183.) Plaintiffs filed a response in opposition to Defendant's objections, to which Defendant filed a reply. (ECF Nos. 185 & 186.)

Thereafter, Judge Tomlinson issued an R&R dated July 9, 2021 (“Intervenor R&R”), which recommended that Cassidy's motion to intervene be granted and her motion to compel be denied “at this time.” (ECF No. 188.) On September 13, 2021, the Court:

(1) adopted the Intervenor R&R in its entirety as the opinion of this Court;

(2) granted Cassidy's motion to intervene as class representative; (3) directed Cassidy to file an Amended Complaint by no later than September 15, 2021 and Defendant to file an Answer to the Amended Complaint by no later than September 25, 2021; and

(4) deferred decision on the pending summary judgment motions, the SJ R&R and Defendant's objections to the SJ R&R until after Cassidy filed the Amended Complaint; and indicated that the Court would evaluate those items in light of Cassidy's Amended Complaint.

(ECF No. 190.)

Cassidy then filed an Intervenor Class Action Complaint (“Intervenor Complaint”) on September 15, 2021, (ECF No. 191, ) and Defendant filed an Answer thereto on September 22, 2021. (ECF No. 193.)

I. Facts Applicable to Cassidy

The Court assumes familiarity with the underlying facts as detailed in the SJ R&R, but modifies the SJ R&R to include the facts applicable to Cassidy, as the newly appointed class representative. The following facts are drawn from the Intervenor Complaint and Defendant's Answer thereto^[2]:

Cassidy is a Medicaid recipient who resides in Suffolk County, (ECF No. 191 ¶¶ 15, 137, ) and was enrolled with GuildNet from December 1, 2014 through May 31, 2017. (ECF No. 193 ¶¶ 4 & 15.) In 2017, Cassidy received managed long term care (“MLTC”) services from GuildNet, including fifteen (15) hours of home care per day and the incontinence supplies she needed, i.e. adult diapers and incontinence foam. (ECF No. 191 ¶¶ 15, 140-141; ECF No. 193 ¶ 141.) GuildNet also provided Cassidy with the medical equipment that she needed to be safe, including a glucometer which electronically monitored her glucose levels and notified a nurse if her glucose was too high or too low. (ECF Nos. 191 & 193 ¶ 142.)

After Cassidy received GuildNet's March 2017 Letter informing her, inter alia, that GuildNet would no longer be offering MLTC services to affected enrollees, including herself, effective June 1, 2017, and that she would have to select a new MLTCP, Cassidy called several other MLTCPs to find one that would offer her the same services as GuildNet. (ECF No. 191 ¶ 144.) According to Cassidy, as a result of the March 2017 Letter, she believed that she did not have much time to enroll in another plan because GuildNet was closing and she feared that if she did not choose a plan quickly, she would be left with no home care and would have to move into a nursing home. (Id. ¶¶ 145, 147.) Cassidy alleges that she had great difficulty getting the MLTCPs she contacted to come and assess her, and that an MLTCP named Aetna informed her that they would give her only eight (8) hours of home care per day. (Id. ¶ 146.)

Another MLTCP, Centers Plan for Healthy Living (“CPHL”), offered Cassidy fifteen (15) hours of home care per day, which was the same amount she was receiving from GuildNet. (ECF Nos. 191 & 193 ¶ 148.) According to Cassidy, she was so frantic to get at least fifteen (15) hours of home care per day, that she enrolled with CPHL before inquiring whether they would provide her with all of the medical supplies that she was receiving from GuildNet. (ECF No. 191 ¶¶ 148-149.) Cassidy was enrolled in CPHL effective June 1, 2017. (ECF No. 193 ¶¶ 4 & 15.)

Cassidy asserts that following her transfer from GuildNet, CPHL did not provide her with a glucometer or the incontinence foam she had received from GuildNet, and provided her with adult diapers that were not of the same quality as the ones provided by GuildNet and “were so thin and fell apart so quickly that she would have to wear two or three at a time to stay dry and clean for even a little while.” (ECF No. 191 ¶¶ 150-155.) According to Defendant, CPHL did not provide Cassidy with a glucometer because she already had one. (ECF No. 193 ¶ 150.) Cassidy never received written notice that the provision of her glucometer and incontinence supplies would be discontinued upon her enrollment with CPHL, and she was never told that she could challenge the loss of medical supplies at a fair hearing. (ECF No. 191 ¶ 162.)

II. Review of the SJ R&R

Cassidy is a member of the certified class, and the Court has already found that she has the same interest in this action as Guadagna had. (See ECF Nos. 188 & 190.) Moreover, the Intervenor Complaint made no substantive changes to the causes of action asserted in this class action, and edited the prayer for relief only to remove elements of the originally requested relief that are no longer applicable. (See ECF Nos. 191 & 192.) Accordingly, ...