Fitzmorris v. Weaver

1

Emily Fitzmorris, et al. v. New Hampshire Department of Health and Human Services Commissioner Lori Weaver ^[1], et al.

No. 21-cv-25-PB

Opinion No. 2023 DNH 025

United States District Court, D. New Hampshire

March 28, 2023

MEMORANDUM AND ORDER

Paul J. Barbadoro, United States District Judge

Plaintiffs in this putative class action are disabled individuals who are enrolled in New Hampshire's Choices for Independence (“CFI”) waiver program, a Medicaid program administered by the New Hampshire Department of Health and Human Services (“DHHS”). The CFI Waiver program provides home and community-based care services to adults who otherwise would be Medicaid-eligible for nursing home care. Plaintiffs allege that DHHS and its Commissioner have failed to remedy defects in the administration of the program leading to significant gaps in plaintiffs' services. Plaintiffs filed a complaint on behalf of themselves and a putative class of similarly situated individuals alleging among other things, that DHHS violates the Medicaid Act and the Fourteenth Amendment's Due Process Clause by failing to provide plaintiffs with notice and an opportunity for a hearing when they do not receive all the services they have been authorized to receive. Defendants now move for partial summary judgment, arguing that neither the Medicaid Act nor the Due Process Clause require such procedural protections. I agree, and therefore grant defendants' motion for partial summary judgment.

I. BACKGROUND

The CFI waiver program serves Medicaid-eligible adults who clinically qualify for nursing home services, but “prefer to be cared for at home or in other settings less acute than a nursing facility.” N.H. Rev. Stat. Ann. §§ 151-E:1; 151-E:3. When DHHS determines that an individual is eligible for the program, the individual is paired with a case management agency. N.H. Code Admin. R. He-E 805.07. The case management agency works with the individual to obtain DHHS authorization for any home or community-based care services that the individual needs to safely reside in the community and avoid institutionalization. See id. He-E 801.05. Once services are authorized, they may be covered by the state. See id. He-E 801.12. The case management agency is tasked with coordinating an individual's waiver services, which are delivered by private service providers. See id. He-E 805.05. Nonetheless, the proper administration of the CFI program and the provision of waiver services remains the ultimate responsibility of DHHS. See Price v. Shibinette, 2021 DNH 179, 2021 WL 5397864, at *12 (D.N.H. Nov. 18, 2021).

Plaintiffs are CFI waiver participants who have been authorized to receive an array of services, including personal care and skilled nursing services. See Doc. 80-4 at 3-4; Doc. 80-5 at 3-5. Plaintiffs complain that they “suffer protracted delays in the onset of all or part of their waiver services, frequent interruptions in their waiver services, and/or the expected cessation of their waiver services,” allegedly due to the state's maladministration of the CFI waiver program. Doc. 1 at 8-9. They assert that these so-called “service gaps” are a direct result of DHHS's failure to (1) attract or recruit enough service providers for certain waiver services, (2) adequately monitor whether CFI participants are receiving their authorized waiver services, and (3) take appropriate action when notified of service gaps. See id. at 9-13. It is undisputed that DHHS does not provide either notice or an automatic right to a hearing when CFI waiver participants experience service gaps. See Doc. 112-2 at 8-10; Doc. 112-3 at 8.

Although plaintiffs have asserted multiple claims, defendants seek summary judgment only as to Counts VI and VII, which allege that defendants' failure to provide notice and an opportunity for a hearing where “service gaps and/or delays constitute an effective reduction, denial, or termination of services” violates both the Medicaid Act and the Due Process Clause. See Doc. 112-1 at 6; see also Doc. 101-1 at 2.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016). In this context, a “material fact” is one that has the “potential to affect the outcome of the suit.” Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). A “genuine dispute” exists if a factfinder could resolve the disputed fact in the nonmovant's favor. Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018).

The movant bears the initial burden of presenting evidence that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); accord Irobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018). Once the movant has properly presented such evidence, the burden shifts to the nonmovant to designate “specific facts showing that there is a genuine issue for trial,” Celotex, 477 U.S. at 324, and to “demonstrate that a trier of fact could reasonably resolve that issue in [their] favor.” Irobe, 890 F.3d at 377 (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If the nonmovant fails to adduce such evidence on which a reasonable fact finder could base a favorable verdict, the motion must be granted. Celotex, 477 U.S. at 324. In considering the evidence, the court must draw all reasonable inferences in the nonmoving party's favor. Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 348 (1st Cir. 2018).

III. ANALYSIS

Plaintiffs base their notice and hearing claims on both the Medicaid Act (Count VII) and the Due Process Clause (Count VI). Defendants seek summary judgment on both counts. I begin with the Medicaid Act claim.

A. Medicaid Act

As a state Medicaid plan authorized pursuant to 42 U.S.C. § 1396n, the CFI waiver program must comply with certain federally-imposed conditions. See Bryson v. Shumway, 308 F.3d 79, 83-84 (1st Cir. 2002). One such condition is that a state plan must “provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3).

The regulations that implement this condition (“Fair Hearing Regulations”) specify that a state agency must hold a hearing upon a request from an applicant or beneficiary who “believes the agency has taken an action erroneously, denied his or her claim for eligibility or for covered benefits or services, or issued a determination of an individual's liability, or has not acted upon the claim with reasonable promptness[.]” 42 C.F.R. § 431.220(a)(1). The regulations also require a state agency to notify an individual of their right to a hearing “[a]t the time the agency denies an individual's claim for eligibility, benefits or service . . . or takes other action, as defined at § 431.201, or whenever a hearing is otherwise required in accordance with § 431.220(a).” 42 C.F.R. § 431.206(c)(2). An “action” includes “a termination, suspension of, or reduction in covered benefits or services[.]” 42 C.F.R. § 431.201. When a state agency is required to provide notice under § 431.206(c), the notice must inform an applicant (1) of their right to a hearing, (2) of the method by which the applicant may obtain a hearing, (3) that the applicant may be self-represented or represented by counsel, a relative, or another spokesperson, and (4) the time frames by which the agency must take final administrative action. 42 C.F.R. § 431.206(b). Among other things, the notice must also include “[a] statement of what action the agency . . . intends to take and the effective date of such action.” 42 C.F.R. § 431.210(a).

Plaintiffs present two arguments to support their contention that the Fair Hearing Regulations give them a right to notice and a hearing on their service gap claims. First, they argue that their right to notice and a hearing has been triggered because they made “claims” for services that defendants effectively “denied” when they failed to close their service gaps. In the alternative, plaintiffs argue that they are entitled to notice and a hearing because defendants effectively took an “action” to terminate, suspend, or reduce their covered services when they failed to close the service gaps. I examine each argument in turn.

1. Denial of a Claim for Services

Plaintiffs primarily rely on case law to support their position that a state agency “denies” a “claim” for services whenever it fails to deliver services that the agency has authorized an individual to receive. I cannot accept plaintiffs' argument, however, because it is based on a misreading of the Fair Hearing Regulations.

Because the regulations do not define the terms “claim” or “denies”/ “denied,” I construe them in accordance with their “plain and ordinary meaning.” United States v. Lachman, 387 F.3d 42, 50-51 (1st Cir. 2004) (cleaned up). A “claim” is commonly understood to mean “a demand for something due or believed to be due.” See Claim, Merriam-Webster Dictionary Online https://www.merriam-webster.com/dictionary/claim (last visited March 27, 2023). This is how the term “claim” is used throughout both 42 U.S.C. § 1396a and the Medicaid Act, see, e.g., 42 U.S.C. § 1396r-8, and it is the way a “claim” is defined elsewhere in Chapter 7 of Title 42, see 42 U.S.C. § 1320a-7a(i)(2) (defining “claim” as “an application for payments for items and services under a Federal health care program”). The terms “denies” and “denied” are forms of the verb ...