JS 44C/SDNY REV. 4/2014

£ 4 CV CIVIL COVER SH

The JS-44 civilcover sheet and the information contained herein neither replace nor supplement the filing and sa

pleadings or other papers as required by law, except as provided by local rules of court. This form, approved byI

Judicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of

initiating the civil docket sheet.

6S_~-«--'

PLAINTIFFS
Janie Taylor; Eddy Lemieux by Marie Ladiny; Anibal Santiago by Denise Rivera, individually and on behalf of all others similarly situated

DEFENDANTS
Howard Zucker, as Acting Commissioner of NYS Department of Health; Kristin M. Proud, as Commissioner of NYS Office Temporary and Disability Assistance

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

ATTORNEYS (IF KNOWN)

New York Legal Assistance Group

NYS Attorney General, 120 Broadway, New York, NY

7 Hanover Square

<

New York, NY 10004 212 613 5000

CAUSE OF ACTION(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE)

42USC 1392a(a)(3); Due process clause of US Constitution; 42 U SC 12131. Recipients of NYS Medicaid-funded home health services from managed care organizations allege thatStatedefendants violate their rights to timely and adequatenotices ofadverse actions, under Medicaid Act and Due Process Clause of

US Constitution.

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NoEresQludge Previously Assigned

If yes, was this case Vol. [~J Invol. [~J Dismissed. No [~J Yes [~J If yes, give date.

& Case No.

IS THIS AN INTERNATIONAL ARBITRATION CASE? (PLACEAN [x] IN ONE BOX ONLY)

No 0

Yes [~J NATURE OF SUIT

ACTIONS UNDER STATUTES

[ ] 110

INSURANCE

[ ] 120 [ ] 130

MARINE MILLERACT

[ ] 140

NEGOTIABLE

[ ]150

INSTRUMENT
RECOVERY OF

OVERPAYMENT &

[ ] 151 []152

ENFORCEMENT OF JUDGMENT
MEDICARE ACT RECOVERY OF

DEFAULTED STUDENT LOANS

[ ]153

(EXCL VETERANS) RECOVERY OF

OVERPAYMENT
OF VETERAN'S

[ ] 160

BENEFITS
STOCKHOLDERS

[ ] 190 [ ] 195

SUITS
OTHER CONTRACT CONTRACT

PRODUCT

LIABILITY
[ ] 196 FRANCHISE

REAL PROPERTY

[ J 210
[ ]220 [ ]230
[ ]240 []245
[ )290

LAND CONDEMNATION FORECLOSURE RENT LEASE & EJECTMENT TORTS TO LAND TORT PRODUCT LIABILITY ALL OTHER REAL PROPERTY

PERSONAL INJURY

PERSONAL INJURY
[ ] 367 HEALTHCARE/

FORFEITURE/PENALTY

[ ] 310 AIRPLANE [ ] 315 AIRPLANE PRODUCT
LIABILITY
[ ] 320 ASSAULT, LIBEL &
SLANDER
[ I 330 FEDERAL
EMPLOYERS'

PHARMACEUTICAL PERSONAL [ ] 625 DRUG RELATED

INJURY/PRODUCT LIABILITY

SEIZURE OF PROPERTY

[ ] 365 PERSONAL INJURY

21 USC 881

PRODUCT LIABILITY [ ] 690 OTHER [ ] 368 ASBESTOS PERSONAL

INJURY PRODUCT

LIABILITY

LIABILITY
[ ] 340 MARINE ( ] 345 MARINE PRODUCT
LIABILITY
[ ] 350 MOTOR VEHICLE [ ] 355 MOTOR VEHICLE

PERSONAL PROPERTY
[ ] 370 OTHER FRAUD [ ] 371 TRUTH IN LENDING

PRODUCT LIABILITY
[ ] 360 OTHER PERSONAL
INJURY
[ ] 362 PERSONAL INJURY -
MED MALPRACTICE

[ ] 380 OTHER PERSONAL PROPERTY DAMAGE
[ ] 385 PROPERTY DAMAGE

LABOR
[ ] 710 FAIR LABOR

PRODUCT LIABILITY

STANDARDS ACT

[ ] 720 LABOR/MGMT

PRISONER PETITIONS

( ] 463 ALIEN DETAINEE

[ ] 510 MOTIONS TO

ACTIONS UNDER STATUTES

VACATE SENTENCE

28 USC 2255

CIVIL RIGHTS

[ 1 530 HABEAS CORPUS

[ ] 535 DEATH PENALTY

[ ] 440 OTHER CIVILRIGHTS [ ] 540 MANDAMUS & OTHER

(Non-Prisoner)

RELATIONS
[ ] 740 RAILWAY LABOR ACT
[ ] 751 FAMILY MEDICAL LEAVE ACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION [ ] 791 EMPL RET INC
SECURITY ACT

[ ] 441 VOTING [ ] 442 EMPLOYMENT [ ) 443 HOUSING/

PRISONER CIVIL RIGHTS

IMMIGRATION
[ ] 462 NATURALIZATION

ACCOMMODATIONS
[ ) 445 AMERICANSWITH
DISABILITIES -
EMPLOYMENT
[ ] 446 AMERICANSWITH

[ ] 550 CIVILRIGHTS

APPLICATION

[ ] 555 PRISON CONDITION [ ] 465 OTHER IMMIGRATION

[ ] 560 CIVIL DETAINEE

ACTIONS

CONDITIONS OF CONFINEMENT

DISABILITIES -OTHER

[ ] 448 EDUCATION

BANKRUPTCY
[ ] 422 APPEAL 28 USC 158
[ ] 423 WITHDRAWAL 28 USC 157
PROPERTY RIGHTS
[ ] 820 COPYRIGHTS [ ] 830 PATENT [ 1 840 TRADEMARK
SOCIAL SECURITY
[ ]861 HIA(1395ff) [ ] 862 BLACK LUNG (923) [ ] 863 DIWC/DIWW (405(g)) [ ] 864 SSID TITLE XVI [ ] 865 RSI (405(g))
FEDERAL TAX SUITS
[ ] 870 TAXES (U.S. Plaintiff or Defendant)
[ ] 871 IRS-THIRD PARTY
26 USC 7609

OTHER STATUTES
I 1 375 FALSE CLAIMS [ ] 400 STATE
REAPPORTIONMENT
[ ] 410 ANTITRUST [ ] 430 BANKS 8, BANKING [ J 450 COMMERCE [ ] 460 DEPORTATION [ ] 470 RACKETEER INFLU
ENCED & CORRUPT ORGANIZATION ACT (RICO)
[ ]480 CONSUMER CREDIT [ ] 490 CABLE/SATELLITE TV
[ ] 850 SECURITIES/ COMMODITIES/
EXCHANGE
[x] 890 OTHER STATUTORY
ACTIONS
[ ] 891 AGRICULTURALACTS
[ ] 893 ENVIRONMENTAL MATTERS
[ ) 895 FREEDOM OF
INFORMATION ACT
[ ] 896 ARBITRATION [ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR APPEAL OF AGENCY DECISION
[ ] 950 CONSTITUTIONALITYOF STATE STATUTES

Check if demanded in complaint:

CHECK IF THIS IS A CLASS ACTION

/

UNDERF.R.C.P. 23

DEMAND $_

OTHER

Check YES onlyifdemandedincomplaint
JURY DEMAND: DYES LNO

DO YOU CLAIM THIS CASE IS RELATED TO A CIVILCASE NOW PENDING IN S.D.N.Y.?

JUDGE Hon. Shira A. Scheindlin

DOCKET NUMBER 12 Civ 3216

NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).

(PLACE AN x INONE BOX ONLY)

ORIGIN

01 Original
Proceeding

• 2 Removed from LI 3 Remanded D 4 Reinstated or

State Court

from

Reopened

[~J a. all parties represented

Appellate

I I 5 Transferred from • 6 Multidistrict

(Specify District)

Litigation

I I 7 Appeal to District
Judge from Magistrate Judge Judgment

| | b. At least one
party is pro se.
(PLACEAN x INONEBOXONLY)
D 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT

BASIS OF JURISDICTION
0 3 FEDERAL QUESTION Q4 DIVERSITY
(U.S. NOT A PARTY)

IFDIVERSITY, INDICATE CITIZENSHIP BELOW.

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)

CITIZEN OF THIS STATE

PTF DEF
( ]1 [ ]1

CITIZEN OF ANOTHER STATE [ ] 2 [ ] 2

CITIZEN OR SUBJECT OF A FOREIGN COUNTRY
INCORPORATED or PRINCIPAL PLACE OF BUSINESS IN THIS STATE

PTF DEF
[ ]3[ ]3
[ ]4 [ ]4

INCORPORATED and PRINCIPAL PLACE OF BUSINESS IN ANOTHER STATE
FOREIGN NATION

PTF DEF
[ ]5 ( ]5
( ]6 [ ]6

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
Janie Taylor 56-60 West 119th Street New York, NY 10026

Anibal Santiago 292 Delancey Street New York, NY 10002

Eddie Lemieux
1201 Pennsylvania Avenue Brooklyn, NY 11239
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
Howard Zucker
Corning Tower, Empire State Plaza, Albany, New York 12223

Kristin M. Proud
40 North Pearl Street, Albany, New York 12207; and 14 Boerum Place, Brooklyn, New York 11201

DEFENDANT(S) ADDRESS UNKNOWN REPRESENTATION IS HEREBYMADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE9IBENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one: T(DHOISNOA^C^TckJO^efrffSbHo^O1UfthLisDy-PBREIS. OASNSEIRG/NPEE7EI>TIJOON: /PRIS•ONWERHCIITVIEL RPIGLHATSINS 0 MANHATTAN

COMPlAINT^
DATE -7- /$"". /^^^T()f^X}Pj^^tE^0p^fbr^~\

ADMITTED TO PRACTICE IN THIS DISTRICT

RECEIPT i

[tf'YES (DATE ADMITTED Mo. ^— Yr. /^M7
Attorney Bar Code #

Magistrate Judge is to be designated by the Clerk of the Court.

Magistrate Judge

Ruby J. Krajick, Clerk of Court by.

. Deputy Clerk, DATED.

is so Designated.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JANIE TAYLOR; EDDY LEMIEUX by his NEXT FRIEND
|XT4 MARIE LADINY; and ANIBAL SANTIAGO by HIS
FRIEND DENISE RIVERA, individually and on behalf all others similarly situated,

CV

531

Plaintiffs,

-against-
HOWARD ZUCKER, as Acting Commissioner of the New York State Department of Health; KRISTIN M. PROUD, as Commissioner of the New York State Office of Temporary and Disability Assistance,
Defendants.

t- ••}

cz

CLASS ACTION -°
COMPLAINT;- ° cn-ri

c: Ul rx: f"""

oi-l

- <J

-iO

o

CO

o

ro o

7-0
—•

PRELIMINARY STATEMENT
1. Medicaid recipients with disabling and chronic health conditions bring this suit to challenge the lack of basic due process protections when their Medicaid home care services are actually or threatened to be denied, reduced or terminated by the New York State Department of Health ("DOH").
2. Plaintiffs JANIE TAYLOR, EDDY LEMIEUX, and ANIBAL SANTIAGO bring this class action for injunctive and declaratory relief, on behalf of themselves and a class of all current and future Medicaid recipients in New York State who receive home care services through Medicaid Managed Care Organizations and who have suffered or will suffer threatened or actual denials, reductions, or terminations of their home care services without timely and adequate notice, and / or without any change in their condition or circumstances which would

justify a reduction or termination, and/or without aid-continuing benefits pending internal appeals and the issuance of Decisions After Fair Hearings ("DAFHs").
3. Defendant Zucker has contracted with Medicaid Long Term Care plans ("MLTCs") and Mainstream Managed Care plans ("MMCs") (collectively Managed Care Organizations ("MCOs")) to provide home care services to most Medicaid recipients inNew
York State who need such services. "Home care" services as used herein refers to Medicaid
personal care, home health, private duty nursing, and other long-term care services. 4. Because Defendants Zucker and Proud (collectively "State Defendants") must
provide timely and adequate notice, aid-continuing, and the right to a fair hearing to any recipient who isthreatened with orsuffers any adverse action, the contracts require the MCOs to comply with all applicable federal and state laws and regulations. Named Plaintiff Janie Taylor receives herhome care from VNS Choice; Named Plaintiffs Eddy Lemieux, and Anibal
Santiago receive their home care through Health First. 5. Plaintiffs challenge the custom and practice of Defendant ZUCKER of
(a) threatening to reduce orterminate, and actually denying, reducing, orterminating home health services without first providing timely and adequate notice of such adverse actions and an opportunity for a fair hearing in violation of Plaintiffs' rights under 42 U.S.C.§ 1396a(a)(3); 42 C.F.R. §§ 438.10; 438.210(b),(c), and (d), 438.400-410; 431.211 ; New York Social Services Law § 22(12); 18 N.Y.C.R.R §§ 505.14(b)(5)(v)(c)
and 358-2-2, 358-2.23, and 358-3.3; and the Due Process Clauses of the 14th
Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1; and of the New York State Constitution, N.Y. Const. Art. I, § 6; and

(b) reducing and terminating home care services when there has been no change in the recipient's conditionor circumstances that wouldjustify the reduction or termination in
violation of Plaintiffs' rights under the Due Process Clause of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, 42 CFR § 438.210(a), and as specifically set forth in Mayer v. Wing, 922 F.Supp. 902, and State Defendant's own regulations at 18 N.Y.C.R.R. § 505.14 (b)(5)(v)(c); and
6. Plaintiffs challenge the custom and practice of Defendant Proud of failing to authorize aid-continuing where required and of Defendant Zucker in not providing aidcontinuing when authorized, in violation of Plaintiffs' rights under 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§438.420, 438.424 ; New York Social Services Law § 365-a(8); New York Social
Services Law § 22(12); 18 N.Y.C.R.R § 358-3.6; and the Due Process clauses of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, and of the New York State Constitution, N.Y. Const. Art. I, § 6; and
7. Plaintiffs challenge Defendant Zucker's custom andpractice of denying, reducing and terminating Plaintiffs' home care services, by sending inadequate and untimely notices, or no notices at all, and of State Defendants' custom and practice of failing to provide an opportunity for a fair hearing with "aid continuing," both of which threaten to result in the unnecessary institutionalization of Plaintiffs, in violation of their right to receive services in the most integrated setting appropriate to theirneeds as guaranteed by Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.; 28 C.F.R. §§ 35.130 (d); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; 28 C.F.R. §§ 41.51 (d); and 45 C.F.R. § 84.4(b)(2).

JURISDICTION AND VENUE
8. Jurisdiction over this action is conferred upon this Court by 28 U.S.C. §§ 1331, 1343 and 1367. This action is authorized by 42 U.S.C. § 1983 as an action seeking redress of the deprivation of statutory and constitutional rights under color of law; and the Americans with Disabilities Act, 42 § U.S.C.§ 12117.
9. Venue is proper in the Southern District of New York pursuant to 28 U.S.C. § 1391(b) in that it is the judicial district in which a substantial part of the events giving rise to
the claims occurred. PARTIES
10. Plaintiff JANIE TAYLOR is an 84 year-old woman who lives alone in Manhattan. Ms. Taylor suffers from numerous medical conditions including a mobility impairment and requires home care services in the amount of 10 hours per day, 7 days per week in order to live safely in the community.
11. Plaintiff EDDY LEMIEUX is an 18 year-old man who lives with his aunt and uncle in Brooklyn. Because of his serious medical conditions, he requires 24 hour-per-day continuous care in order to live safely in the community.
12. Plaintiff ANIBAL SANTIAGO is a 65 year-old man who lives alone in Manhattan. Mr. Santiago suffers from numerous medical conditions including diabetes, high blood pressure, and Schizoaffective disorder and requires home care services in the amount of 12 hours per day, 7 days per week.
13. Defendant HOWARD ZUCKER is the Acting Commissioner of the New York State Department of Health ("DOH"), and as such is responsible for the administration of the Medicaid program in the State of New York. He maintains an office at Corning Tower, Empire

State Plaza, Albany, New York. He has contracted with over forty Managed Care Organizations, which act as his agents for the purpose of providing home care services.
14. Defendant KRISTIN M. PROUD is the Commissioner of the New York State
Office of Temporary and Disability Assistance ("OTDA") and as such is responsible for the operations of the Office of Fair Hearings, including but not limited to ensuring compliance with Aid Continuing Directives, scheduling and conducting Fair Hearings, issuing recommended decisions after Fair Hearings, and ensuring compliance with Fair Hearing decisions involving the Medicaid program. She maintains an office at 40 North Pearl Street, Albany, New York and at 14 Boerum Place, Brooklyn, New York.
CLASS ACTION ALLEGATIONS
15. Named Plaintiffs Eddy Lemieux, Janie Taylor and Anibal Santiago bring this action, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, on behalf of themselves and as representatives of a class of:
All current and future Medicaid recipients in New York State who receive home care services through Medicaid Managed Care Organizations and who have suffered or will suffer threatened or actual denials, reductions, or terminations of their home care services without timely and adequate notice, and / or without any change in their condition or circumstances which would justify a reduction or termination, and/or without aid-continuing benefits pending internal appeals and the issuance of Decisions After Fair Hearings. 16. The class is so numerous that joinder of all class members in this action would be impracticable. Upon information and belief, there are hundreds of persons in the class. 17. Moreover, it would be impracticable for potential plaintiffs, who are, by definition, disabled and indigent individuals, to obtain legal services on an individual basis for their claims. Hence, their rights under the law may well be meaningless without certification of
a class action seeking common redress.

18. There are questions of fact common to the class, including whether Defendant Zucker has a custom and practice of threatening to take or taking adverse actions against members of the class without providing timely and adequate notice advising class members of the reason for the proposed action and of all information necessary to appeal such action, and whether Defendants Zucker and Proud fail to authorize and provide aid continuing to members
of the class who are entitled to it.
19. There are questions of law common to the class, namely whether Defendant Zucker's custom and practice of threatening to take or taking adverse actions in the form of denials, reductions, and terminations of home care services without providing timely and adequate notice of such actions, or when there has beenno change in the recipient's condition or circumstances that would justify the adverse action, violates, 42 U.S.C.§ 1396a(a)(3); 42 C.F.R. §§ 42 C.F.R. §§ 438.10; 438.210, 438.400-410; 431.211 ; New York Social Services Law § 22(12); 18N.Y.C.R.R §§ 505.14(b)(5)(v)(c) and 358-2-2, 358-2.23, and 358-3.3; and the Due
Process Clauses of the 14th Amendment to the United States Constitution, U.S. Const. Amend.
XIV, § 1; and of the New York State Constitution, N.Y. Const. Art. I, § 6; and whether the failure by Defendants to authorize and provide required "aid-continuing" benefits to members of the class pendingthe issuance of fair hearing decisions, violates 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§438.420, 438.424; New York Social Services Law § 365-a(8); New York Social Services Law § 22(12); 18 N.Y.C.R.R § 358-3.6; and the Due Process clauses of the 14th
Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, and of the New York State Constitution, N.Y. Const. Art. I, § 6.
20. The claims of Named Plaintiffs Janie Taylor, Eddy Lemieux, and Anibal Santiago are typical of the claims of the class in that they did not receive timely and adequate notice of the

reduction and discontinuance of their home care services. In addition, none of the Named Plaintiffs have had a change intheir condition or circumstances that would justify the reduction or termination of their home care. Also, all three named plaintiffs have been denied aid-continuing
benefits to which they were entitled.
21. Named Plaintiffs will adequately represent the interests of the class. Named Plaintiffs are members of the proposed class and there are no conflicts of interest between Named Plaintiffs and other proposed class members inthat all proposed class members would
benefit by obtaining timely and adequate notice ofhome care denials, reductions or terminations,
and aid-continuing pendingthe issuance of DAFHs.
22. Plaintiffs are represented by the New York Legal Assistance Group ("NYLAG"). NYLAG is apublic interest law firm with extensive experience in litigating class action cases, including numerous cases involving public benefits, including Medicaid funded home care services. For example, NYLAG was class counsel in Shakhnes v. Eggleston, 740 F. Supp. 2d
602 (S.D.N.Y. 2010) (certifying Rule 23(b)(2) class ofMedicaid home health care recipients), aff'dsub nom, Shakhnes v. Berlin, 689 F.3d 244 (2d Cir. 2012).
23. A class action isthe appropriate method for a fair and efficient adjudication of this matter in thatDefendants have acted or refused to act in a manner generally applicable to the class as a whole and a class action will avoid numerous separate actions by class members that would unduly burden the courts and create the possibility ofinconsistent decisions, thereby making final injunctive and declaratory relief appropriate as to the class as a whole.
STATUTORY AND REGULATORY SCHEME A. The Medicaid Program
24. The Medical Assistance Program ("Medicaid") is a joint federal-state program established under Title XIX of the Social Security Act ("Medicaid Act") that provides federal
7

funding for state programs that furnish medical assistance and rehabilitation and other services to needy individuals. 42 U.S.C. §§ 1396-1396w-5; 42 C.F.R. §§ 430.0-456.725.
25. States are not required to participate in the Medicaid program, but if they do, they must conform to federal law and regulations in orderto qualify for federal financial participation.
42 U.S.C. §§ 1396a, 1396c.
26. Any state participating in the Medicaid program must adopt an approved State plan, and must administer the program through a "single state agency." 42 U.S.C. § 1396a(a)(5); 42 C.F.R. § 431.10(b)(1); State Plan Under Title XIX of the Social Security Act - Medical Assistance Program (March 10, 2011).
27. New York has elected to participate in the Medicaid program, and the single state
agency responsible for the administration of the Medicaid program in New York is the New York State Department of Health. N.Y. Soc. Serv. L. § 363-a(l); 1996 N.Y. Laws Ch. 474, §§ 233-248. This single state agency is permitted only to delegate certain functions (eligibility determinations, appeals) to certain entities (local districts), and is prohibited from delegating "the authority to supervise the plan or to develop or issue policies, rules, and regulations onprogram
matters." 42 C.F.R. § 431.10(c), (e).
B. Medicaid "Home Care" Services
28. Medicaid services include various long-term care services that are provided to
Medicaid recipients to enable them to live safely intheir homes, including but not limited to home health services, personal care services, the Consumer-Directed Personal Assistance Program (CDPAP), and private duty nursing collectively referred to as "home care" services.
1New York State plan available at https://www.health.ny.gov/regulations/state_plans/docs/nys_medicaid_plan.pdf,
with amendments at https://www.health.ny.gov/regulations/state plans/status/. 8

29. Home health services include part-time or intermittent nursing (known commonly
as "visiting nurse"), home-based occupational or physical therapy, home health aide services, and medical supplies. 42 U.S.C. § 1396d(a)(7); 42 C.F.R. § 440.70; N. Y. Soc. Serv. L. §§365a(2)(d), 367-j; 18NYCRR §505.23, 10NYCRR §763.5.
30. Personal care services means some ortotal assistance with personal hygiene, dressing and feeding; and nutritional and environmental support functions and includes
assistance with toileting, walking, transferring, and other listed tasks where such services are essential to the maintenance of the patient's healthand safety in his or her own home. 42 U.S.C. § 1396d(a)(24); 42 C.F.R. § 440.167; N.Y. Soc. Serv. L. § 365-a(2)(e); 18 N.Y.C.R.R., § 505.14(a)(1), (a)(6)(ii)(a).
31. The Consumer-Directed Personal Assistance Program (CDPAP) is a variation on personal care services in which the aide may perform tasks that would otherwise be considered "skilled" and require a licensed nurse. Also, the Medicaid recipient or "consumer" has authority to select, train, and schedule her own aides. New York Soc. Serv. L. § 365-f; New York Educ.
Law § 6908(1 )(a).
32. Private duty nursing services are authorized for Medicaid recipients who need full-time skilled care, such as tube feeding, suctioning a tracheostomy or ventilator care for which a registered or licensed practical nurse is authorized to work for an entire full-time daily shift, rather than on a part-time or intermittent basis. 42 U.S.C. § 1396d(a)(8); 42 C.F.R. § 440.80; New York Soc. Serv. L. § 365-a(2)(l).
33. All four of these types of home care services and other services meeting longterm chronic conditions must now be obtained through managed care plans as described below.
C. Medicaid Managed Care and the 1115 Waiver in New York

34. Medicaid Managed Care Organizations ("MCOs") are privately-owned and operated health insurance entities which contract with State Medicaid programs to provide Medicaid recipients with a package of covered services in exchange for payment by the State of an actuarially-sound capitation payment per enrollee. 42 U.S.C. § 1396b(m); 42 C.F.R.
§§438.2,438.6.
35. Section 1115 of the Social Security Act allows the Centers for Medicare and Medicaid Services ("CMS") of the United States Department of Health & Human Services to
waive certain otherwise mandatory provisions of theAct in order for a state to require mandatory enrollment of some or all Medicaid recipients into private managed care plans. 42 U.S.C. § 1315. Waiver of the "freedom of choice" requirement, under Section 1902(a)(23)(A) of the Act, enables the Stateto require beneficiaries to enroll in managed care plans which limit their members to using a limited network of medical providers that contract with the plan. 42 U.S.C. § 1396a(a)(23)(A). Waiver of the "statewideness" provision, under Section 1902(a)(1) of the Act, allows the state to require recipients living in certain counties of the State, but not others, to
enroll in managed care plans. 42 U.S.C. § 1396a(a)(l). 36. New York State has operated its Medicaid Managed Care programs through an
1115 waiver, first approved in 1997, called the Partnership Plan (Waiver # 1l-W-00114/2). N.Y. Soc. Serv. L. § 364-j(2)(a). See Partnership Plan Waiver Authority (CMS, as revised January
2014), available at
https://www.health.ny.gov/health_care/managed_care/appextension/docs/waiver_authority.pdf; This plan waives three provisions of Federal Medicaid law: statewideness, comparability, and freedom of choice. Id. However, the authority for the waivers specifically provides that "[a]ll
10

requirements ofthe Medicaid program expressed in law, regulation, and policy statement, not expressly waived in this list, shall apply to the demonstration...." Id,; 42 C.F.R. § 431.420.
37. The Partnership Plan allows the State to require most Medicaid recipients to enroll in two different types of MCOs. Since the 1990's, most Medicaid recipients who do not also have Medicare must enroll in "mainstream" Medicaid managed care plans ("MMC"), and, beginning in 2012, those with Medicare who need home care services must enroll in Managed Long Term Care (MLTC) plans. Partnership Plan Special Terms & Conditions 2-3 (CMS
January 2014), available at
https://www.health.ny.gov/health_care/managed_care/appextension/docs/special_terms_and_con
ditions.pdf. 38. Until August, 2011, home care services were "carved out" of the MMC service
package. Those MMC members who needed home care services obtained authorizations for
these services outside of the MMC plans, most commonly through their local Medicaid offices. In August, 2011, pursuant to a 2010 amendment of the Partnership Plan waiver, home care services were "carved in" or added to the MMC benefit package. Today, MMC plans are the only way to receive home care services for Medicaid recipients without Medicare.
39. In 2012, CMS approved New York's expansion of the Partnership waiver to require mandatory enrollment into another type of MCO called Managed Long-Term Care ("MLTC"). N.Y. Pub. Health L. § 4403-f. Although MLTC plans existed since 1997, they were strictly voluntary. The 2012 amendment of the Partnership waiver allowed DOH to require adult Medicaid recipients who also hadMedicare ("dual eligibles") to enroll in MLTC plans in order
to receive Medicaid-covered home care services. Id. at 2-3.
40. CMS' approval of an 1115 waiver or its expansion is conditioned on the State's
11

compliance with a set of "Special Terms and Conditions" (STC's).2 41. Defendant Zucker has entered into a contract with each MCO pursuant to which
MCOs provide home care services to Medicaid recipients. 42. These contracts require that the MCOs comply with all applicable federal and
state statutes and regulations. 43. Medicaid MCOs must make Medicaid services included within their benefit
package available to the same extent they are available to recipients of fee-for-service Medicaid. 42 U.S.C. § 1396b(m)(l)(A)(i).
44. State contracts with MCOs must "require that the services ... be furnished in an amount, duration, and scope that is no less than the amount, duration, and scope for the same services furnished to beneficiaries under fee-for-service Medicaid, as set forth in §440.230." 42 C.F.R. § 438.210(a)(2). The contracts must further ensure ".. .that the services are sufficient in amount, duration, or scope to reasonably be expected to achieve the purpose for which the services are furnished." 42 C.F.R. § 438.210(a)(3)(i).
45. State contracts with MCOs must "specify what constitutes 'medically necessary services' in a manner that—(i) Is no more restrictive than that used in the State Medicaid program as indicated in State statutes and regulations, the State Plan, and other Statepolicy and procedures...." 42 C.F.R. § 438.210(a)(4)(i).
46. The SpecialTerms and Conditions for the 1115 Waivers provides that "[bjenefits provided throughthis Demonstration for the mainstream Medicaid managed care program are
2The "CMS Approval Letter" and the Special Terms and Conditions - Partnership Plan are posted at
http://www.health.ny.gov/health care/medicaid/redesign/1115 waiver amendment for managed Iong_ term care.h
tm. Amended Special Terms and Conditions available at
http://www.health.ny.gov/health_care/managed_care/appextension/docs/special_terms_and_conditions.pdf.
12

identical to those in the Medicaid state plan." Partnership Plan Special Terms & Conditions 21 (CMS January 2014). D. Notice and Appeal Rights in Medicaid and Medicaid Managed Care
47. Federal law and regulations require a state's Medicaid program to provide Medicaid applicants and recipients with recourse to an administrative fair hearing when Medicaid benefits are denied, reduced, or terminated. 42 U.S.C. § 1396a(a)(3); 42 C.F.R.
§431.220.
48. When determinations are made to deny, reduce, or terminate Medicaid, applicants and recipients must be given timely and adequate notice of their right to a fair hearing. 42 U.S.C.§ 1396a(a)(3); 42 C.F.R. §§ 435.919, 435.912, 431.206(b), 431.206(c), 431.210; N.Y. Soc. Serv. Law § 22(12); 18 N.Y.C.R.R § 505.14(g)(3)(x).
49. When determinations are made to reduce or terminate Medicaid benefits, recipients who request a fair hearing in a timely manner are entitled to receive their benefits unchanged (called "aid-continuing") until a Decision After Fair Hearing ("DAFH") is issued. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.230(a), 431.231(c), 438.420(b); N.Y. Soc. Serv. Law § 365-a(8); 18 N.Y.C.R.R. §§ 358-3.6, 505.23(d); U.S. Const. Amend. XIV, § 1; N.Y. Const. Art. I, §6.
50. Medicaid MCOs are required by Federal law and regulation to have a grievance and appeal procedure, including the right to challenge a denial of coverage. 42 U.S.C. § 1396u2(d)(2)(c); 42 C.F.R. §§ 438.400-438.424
51. When an MCO takes an "action" (defined to include a denial or limited authorization of a requested service; and a reduction, suspension, or termination of a previously authorized service), it must send a written notice to the enrollee explaining the action, the
13

reasons for the action, the right to appeal, the procedures for appealing, how to request expedited resolution, and the right to continuation ofservices pending the appeal. 42 C.F.R. §§ 400(b)(l-
2), 438.404(a).
52. Whether thenotice of action must be given in advance of the proposed action depends on whether the action isa denial ofa new service, ora reduction ofa previously authorized service. The notice of action regarding a denial or limited authorization of a new requested service must be provided to the enrollee "as expeditiously as the enrollee's health condition requires and within State-established timeframes that may not exceed 14 calendar days following receipt of the request for service, with a possible extension of up to 14additional calendar days...." 42 C.F.R. §§ 438.404(c)(3), 438.210(d)(1). For service authorizations where "a provider indicates, or the MCO ... determines, that following the standard timeframe could seriously jeopardize the enrollee's life or health or ability to attain, maintain, or regain maximum function," the notice may be provided no later than three working days after therequest for service, also subject to a possible 14-day extension. 42 C.F.R. § 438.210(d)(2).
53. In contrast, the notice of action regarding a reduction, suspension, or termination of a previously authorized service must be sent by the MCO at least ten days before the date of
the proposed action. 42 C.F.R. §§ 438.404(c)(3), 431.211 (this is the same regulation governing
fee-for-service Medicaid
54. In mainstream MMC plans, defendant Zucker's policy allows planmembers to appeal an adverse determination either by requesting an internal appeal within the plan or by requesting a fair hearing. Exhaustion ofthe internal appeal procedure is not required as a pre condition ofrequesting a fair hearing. Aid continuing must be provided upon a timely request
14

either for an internal appeal orfair hearing, but if an MMC plan denies an internal appeal, defendant Zucker fails to require advance notice and aid continuing pending a fair hearing.
55. In MLTC plans, defendant Zucker's policy requires exhaustion of internal appeals within the plan as a pre-condition of requesting a fair hearing.
56. MCOs are required to give enrollees reasonable assistance in taking the procedural steps required for filing grievances and appeals, must allow appeals to be filed orally, must provide an opportunity for presentation of evidence and legal/factual allegations in person or in writing, and provide an opportunity to examine the case file. 42 C.F.R. § 438.406.
FACTS OF THE INDIVIDUAL NAMED PLAINTIFFS
Named Plaintiff Janie Taylor 57. Janie Taylor is an 84 year-old woman who lives alone in Harlem and receives
Medicaid.
58. Ms. Taylor has been authorized to receive Medicaid home care services in the amount of 10 hours per day, 7 days per week since 2011.
59. She suffers from numerous medical conditions including diabetes, hypertension,
unsteady gait, and high blood pressure.
60. Because of her medical conditions she needs assistance with many of her daily activities of living, including all mobility and transferring, preparing all meals, shopping,
bathing, dressing, and household chores.
61. Ms. Taylor has a mobility impairment and needs assistance from another person to safely move about inside her apartment as well as outside. While she is able to walk very short distances, for example across a room, at a very slow pace, she has an unsteady gait and if she walks without a person to support herand provide contact guarding, she is at risk of falling.
15

An aide's assistance ten hours per day is critical to enable her to safely engage in her basic daily
activities, including goingto the bathroom and preparing meals. 62. In March 2013, Ms. Taylor was mandatorily enrolled in VNS CHOICE MLTC
plan. The plan initially maintained her home care in the amount of 10 hours per day, 7 days per
week as previously authorized by the local social services district HRA. 63. Ms. Taylor received that amount of home care from VNS CHOICE until July 1,
2014, when VNS CHOICE reduced her services without notice to 5 hours per day, 7 days per
week.
64. On June 23, 2014, Ms. Taylor received a document entitled "Summary of Authorized Services" from VNS Choice. The document is dated June 19, 2014.
65. The document states that Ms. Taylor is authorized to receive home care for the period of July 1, 2014 through December 31, 2014, in the amount of 5 hours per day, 7 days per
week.
66. Although this authorization for care is for an amount that is one half of what she previously had been receiving, the document does not purport to "reduce" her care; rather it
states that it is a "new authorization."
67. The document does not advise Ms. Taylor of her right to an internal appeal, or a fair hearing, or aid-continuing.
68. The document does not include a reason for the reduction in care.
69. There had not been any change in Ms. Taylor's condition or circumstances. 70. On or about June 30, 2014, a social worker at the office of Ms. Taylor's physician contacted VNS Choice and requested an internal appeal to challenge the threatened reduction of
her home care services .
16

71. OnJuly 1, 2014, Ms. Taylor was notified by VNS bytelephone that the internal
appeal was denied, and that a notice would be sent soon, but that her care would be reduced to
the new lower amount, effective July 1st. On July 1st, her aide left after working 5 hours. Since
July 1, 2014, she has received only 5 hours per day, 7 days per week. 72. On July 1, 2014, Ms. Taylor contacted NYLAG, which advised herof her right to
request a fair hearing.
73. On July 1,2014, NYLAG requested a fair hearing for Ms. Taylor. 74. On July 2, 2014, NYLAG telephoned Defendant Proud and after learning that the fair hearing request had not yetbeen processed, requested that it be processed immediately. 75. On July 2, 2014, Defendant Proud processed the request for a fair hearing and
ordered aid-continuing. 76. Despite this aid-continuing directive from Defendant Proud, VNS Choice has not
restored Ms. Taylor's care to the full amount of 10 hours per day, 7 days per week. 77. Before her care was reduced, Ms. Taylor's aide arrived at 9am, and stayed until
7pm; now her aide arrives at 9am and leaves at 2pm.
78. Before hercare was reduced, Ms. Taylor's aide prepared her dinner, cleaned up, and helped her use the bathroom and prepare for bed. Now Ms. Taylor must complete these tasks alone, and because she is so unsteady on her feet, she is at constant risk of falling. Because she cannot prepare her own meals, she must eat cold dinners every night, left out for her several
hours earlier by her aide. Because she cannot go outside unassisted, she now is unable to leave her apartment after 2pm.
79. On or about July 7, 2014, Ms. Taylor received a letter from VNS Choice dated July 2, 2014, entitled "Notice of Action Denial of Benefits." It does not state an effective date.
17

Ms. Taylor made no request for an increase in benefits, and the notice mischaracterizes a determination to reduce care as a denial of a request for an increase.
80. In the section ofthe July 2nd letter, which she received 6 days after her care was
reduced, entitled "Type of Benefit and Summary of Request," the letter states: "Home health aide hours-Request for increase of current hours from five (5) hours/ seven (7) days per week to ten (10) hours/seven (7) days a week." In the section entitled "Reason for Denial," the letter
states:
The request for ten (10) hours of home health aide service, seven (7) days perweek is denied. Based onthe clinical assessment, the current level of service of five (5) hours, seven (7) days per week is adequate to meet your functional and personal care needs. Additional hours would be for safety supervision and/or companionship which are services not covered which are services not covered by VNSNY CHOICE Managed Long
Term Care.
81. It is not true thatthe only reason Ms. Taylor needs more than 5 hours per day is to provide her with safety supervision and companionship. Ms. Taylor needs assistance with meal mobility, meal preparation, and personal hygiene tasks associated with preparing for bed.
Named Plaintiff Eddy Lemieux 82. Eddy Lemieux is an 18 year-old male who receives Medicaid and lives with his aunt and severely disabled uncle in Brooklyn.
83. Mr. Lemieux suffers from multiple medical conditions including Noonan's syndrome, a congenital disease, with related diagnoses of pulmonary stenosis, severe scoliosis, lymphedema, bone disease, congenital pulmonary stenosis, and pulmonary insufficiency.
18

84. Because of these conditions, Mr. Lemieux is extremely weak and frail and needs assistance to complete all of his daily activities including walking, transferring, bathing and other personal hygiene activities, medication administration, and going to the bathroom.
85. Mr. Lemieux's uncle receives home care as well, and is too disabled to care for
him. Mr. Lemieux's aunt works two jobs, one of them at night, to support the family, so she
cannot take care of him either.
86. In order for Mr. Lemieux to remain in the community, he requires 24 hour-perday continuous care. On weekdays, he attends a special school where he is cared for, but the rest
of the day and nights, he needs a personal care aide. 87. Mr. Lemieux was originally authorized to receive home care through the CDPAP
program, which was formerly administered by the local Medicaid district in New York City. 88. For many years Mr. Lemieux was authorized to receive 24 hour-per-day
continuous home care in two 12-hour shifts.
89. In 2012 Mr. Lemieux was required to enroll in Healthfirst, which assumed control
of his Medicaid home care services.
90. On January 14, 2014, Healthfirst sent Mr. Lemieux a document which, though lacking any title, purported to be a notice of authorization for consumer-directed personal care services which would be tapered as follows, "12 hours 7 days per week for 4 weeks then 8 hours, 7 days per week for 4 weeks, then 5 hours, 3 days per week for 4 weeks, then discontinue
services." The reduction was slated to begin on January 25th, with the reduction to 12 hours/day, then on February 23rd to 8hours, then on March 24th to 5hours, then discontinuance on April
22, 2014.
19

91. Although the notice has no title at all, let alone any indication that itis anotice of
reduction and discontinuance, in the body ofthe text it notes that "Healthfirst has reviewed the
request for ... Personal Care Service 24 hours 7days aweek." The notice goes on to say "it has
been determined that the requested service(s) is not/are no longer medically necessary because after review of the clinical information provided the Medical Director has determined that the
amount of/level of Personal Care Services requested is not medically necessary."
92. The January 14, 2014 notice did not identify any change in Mr. Lemieux's medical condition or social circumstances, or any other change which might explain why an individual who had previously been found to need 24 hour-per-day continuous care could be tapered to no care at all over the course of 12 weeks.
93. There had been no change in Mr. Lemieux's medical condition or circumstances. 94. The notice is six pages long and densely formatted. Information about requesting
an internal appeal is on pages two and three. Information about requesting afair hearing and the right to "aid-continuing" is on page four, but with no information on how to request ahearing.
The notice references a separate "Managed Care Action Taken" form for instructions on requesting a fair hearing, which was not attached to the notice mailed.
95. In response to this notice, Mr. Lemieux's aunt requested an internal appeal
through Healthfirst.
96. She requested the internal appeal before January 25th, the effective date ofthe
notice, and as a result, Mr. Lemieux was entitled to aid-continuing, which meant continuation of
continuous 24-hour care in two 12-hour shifts pending the internal appeal decision. If that decision was adverse, Healthfirst should have provided notice again, affording him the opportunity to request a fair hearing with aid continuing.
20

97. Healthfirst did not acknowledge that an appeal had been requested, nor did it give Mr. Lemieux an opportunity to submit documents to be considered during the appeal.
98. On January 27, 2014, Healthfirst sent a"Notice ofFinal Adverse Determination" which contained its determination to uphold the "Denial of Personal Care Services, 24 hours x 7
days per week" but it also modified the authorization and determined to approve Mr. Lemieux to receive personal care services in the amount of12 hours-per-day for 6weeks, and then to
reassess.
99. The January 27th notice was not timely, as it was not provided ten days in advance
ofthe proposed reduction to 12 hours per day. Instead, the January 27th notice purported to reduce services retroactively to 12 hours-per-day effective January 24th. In effect, this affirmed the first step ofthe initial tapered reduction announced in the January 14th notice, which was to
reduce hours to 12 per day on January 25th. Thus the decision on the internal appeal sustained the initial step ofthe tapered reduction, and canceled the subsequent reductions subject to
reassessment in six weeks.
100. Contrary to the decision on the appeal, Healthfirst in fact proceeded with the rapid
taper reduction as proposed in its original notice. 101. The January 27th notice stated that services were not medically necessary because
Mr. Lemieux is not "homebound," is alert, and has not been recently hospitalized, because his
family has learned to use the continuous positive airway pressure and other equipment, because
he has no "skilled" needs, and because the goal is to "help the member become independent." None ofthese statements describe a change in Mr. Lemieux's condition or circumstance that
would justify a reduction in his care, because none ofthem describe anything new.
21

102. On February 7, 2104, Mr. Lemieux requested a fair hearing to challenge the
reduction of his services from 24 hour split shift, to 12 hours-per-day.
103. Defendant Proud did not order aid-continuing.
104. As a result, Mr. Lemieux's home care was not restored to 24 hour split shift care
as it should have been.
105. Mr. Lemieux was referred to NYLAG on April 21,2014.
106. On April 23, 2014, aNYLAG lawyer called Defendant Proud and inquired why aid-continuing had not been directed, and was told that it was an error, and that Defendant Proud
had corrected it, and had so informed Healthfirst.
107. On April 25, 2014, Healthfirst reauthorized Mr. Lemieux for home care, but only for 24 hour-per-day "sleep in" not 24 hour-per-day split-shift care, as required by the aid -
continuing order.
108. Moreover, that authorization was only to provide services for ten days ~ from
April 25, 2014 through May 5, 2014.
109. Between April 25 and May 5, Mr. Lemieux received 24 hour sleep-in care. 110. On May 6,2014, Mr. Lemieux's home care was discontinued in its entirety
despite the aid-continuing directive issued by Defendant Proud and despite Healthfirst's own
rescission ofits original determination to discontinue services altogether. 111. On that day, because Mr. Lemieux's aunt had to work, he was left alone with only
his uncle and his uncle's home attendant to care for him, even though she was not supposed to be
caring for Mr. Lemieux.
22

112. On May 7, 2014, as a result ofadvocacy by NYLAG, Healthfirst authorized care to begin again, in the amount of 24 hour-per-day, sleep in care. This time the authorization ran
through July 5, 2104.
113. On May 19, 2014, as a result ofadvocacy by NYLAG, Healthfirst increased the
authorization to 24 hour continuous care, still only through July 5, 2014.
114. Healthfirst subsequently reauthorized 24 hour split-shift care through September,
2014.
115. The fair hearing is still pending.
Named Plaintiff Anibal Santiago
116. Anibal Santiago is a 65 year-old man who lives alone in Manhattan and receives
Medicaid.
117. Since he does not have Medicare, he has been enrolled in a mainstream Medicaid managed care plan, Healthfirst, since 2007.
118. He suffers from numerous medical conditions including diabetes, high blood
pressure, and schizoaffective disorder. Because of his medical condition he needs assistance with many of his daily activities including all outdoor mobility, housekeeping, cuing and
prompting regarding personal hygiene, and meal preparation. 119. In particular Mr. Santiago needs assistance from another person with preparing
his diabetic diet meals which he is unable to prepare for himself. This involves shopping,
preparing the meals, and managing his portions ofboth food and liquids. 120. Prior to April, 2014, for about 3years, Mr. Santiago received home care services
inthe amount of 12 hours per day, 7 days per week, as authorized by Healthfirst.
23

121. On April 2,2014, Healthfirst sent anotice to Mr. Santiago purporting to deny his so-called "request" for personal care services 12 hours per day, 7days per week, and "approving" him to receive personal care services 4hours per day, 7days per week.
122. Although the April 2nd notice is effectively areduction notice, it is not identified as such, and does not use the word "reduction;" rather it states that "services are approved at the
decreased amount." It does not give any reason why services were being reduced, nor any
explanation of how aperson whom they had previously determined needed 12 hours per day, 7 days per week, could now be cared for with only 4hours per day, 7days per week.
123. There has been no change in Mr. Santiago's condition.
124. The two-page notice Mr. Santiago received explains how to request an internal
appeal but provides no information about requesting afair hearing or the right to aid continuing. 125. On April 7, 2014, Healthfirst sent an additional notice to Mr. Santiago with the
heading "MANAGED CARE ACTION TAKEN TERMINATION OR REDUCTION IN
BENEFIT."
126. While this notice does more clearly purport to be a reduction notice, it is very
difficult to read because it ishalf in English and half in Spanish, and alternates between the two
languages in the middle of sentences. For example, the first sentence of the text reads "This is to inform you/La siguente es para informarie que su Personal Care Assistance Level II, 12 hours 7 days aweek will be/sera Reduced to/Reducido 4hours 7days aweek effective/a partir de
05/03/2014 because/debido a: the request for continued Personal Care Assistance services are approved at the decreased rate of4 hours/day 7 days/week."
127. This notice states as the reason why his services were being reduced that"the medical documents . . . 'show you are independent with your personal care. The personal care
24

assistance benefit is intended to assist members who cannot accomplish the activities ofdaily living by themselves; it is not intended solely as supervision.'" The notice fails to state any
change in his medical condition or circumstances that might explain how aperson previously
determined to need 12 hours per day, 7days per week for over three years could now be cared
for with only 4 hours per day, 7 days per week.
128. There has not been any change in Mr. Santiago's condition or circumstances. His
needs have been and continue to be far beyond mere "supervision."
129. On or about April 22, 2014, Mr. Santiago filed an internal appeal to review the
determination to reduce his personal care services.
130. On May 2, 2014, Healthfirst sent aletter and notice to Mr. Santiago. Both inform him that Healthfirst has reviewed his appeal, and determined to approve him to receive personal
care services 8 hours per day, 7 days per week.
131. Neither the letter nor the notice state an effective date for the reduction to 8 hours
per day, but the notice states that the "date span" is May 3, 2014 through August 20, 2014,
therefore the defacto effective day ofthe notice is 1day after the date itwas mailed. 132. On May 3, 2014, Mr. Santiago's care was reduced from 12 hours per day to 8
hours per day.
133. On May 12, 2014, Mr. Santiago requested a fair hearing to challenge the reduction of his personal care service. Defendant Proud processed the request but did not order aid-continuing. As aresult, Mr. Santiago's care remained reduced for over a month.
134. On June 9, 2014, a NYLAG attorney called Defendant Proud and questioned why
aid-continuing had not been ordered. As aresult ofthat phone call, Defendant Proud ordered
aid-continuing and Healthfirst has complied with that order.
25

135. Mr. Santiago's fair hearing is scheduled for July 21, 2014.
FACTS CONCERNING THE CLASS
136. Medicaid recipients who need assistance with the activities ofdaily living - who, for example, cannot perform essential life activities such as bathing, dressing, walking, toileting, or eating on their own - depend on Medicaid-funded care from an aide or nurse in order to remain safely in their own homes, rather than having to permanently reside in aMedicaid-funded
nursing home or other institution.
137. Historically, inNew York State, most Medicaid-funded home care services were authorized by the local Departments ofSocial Services, such as the Human Resources
Administration ("HRA") in New York City.
138. Currently, the New York State Medicaid program provides almost all Medicaidfunded home care services through some type ofmanaged care, either a Mainstream Managed Care (MMC) plan or aManaged Long Term Care plan (MLTC), collectively Managed Care
Organizations ("MCOs"). 139. After New York State received its 1115 waiver, participation in MLTC was first
made mandatory in New York City in September 2012, and Long Island and Westchester
followed in the next sixmonths. Six more counties were added in 2013, at least eight more counties were added so far in 2014, and the rest of the state is scheduled to be phased in
throughout 2014.
26

140. Individuals in mandatory counties who are eligible for both Medicare and
Medicaid ("dually eligible"), over 21 years old, and in need ofmore than 120 days ofhome care
services must enroll in anMLTC in order to receive Medicaid-funded home care services. In
counties that are not yet mandatory, Medicaid recipients with Medicare continue to access home care services through their local social services districts. Those who do not have Medicare must
access home care through a mainstream MMC plan.
141. As ofApril 2014, there were 115,674 individuals in New York State enrolled in MLTC plans. In New York City, enrollment in MLTCs increased to 103,697 individuals in
April 2014 as compared to 45,634 in April 2012. 142. A smaller statewide group ofabout 10,000 Medicaid-only recipients receive home
care services through a mainstream MMC plan. 143. Members of the class, all of whom need home care services in order to live safely
in the community, are very vulnerable. By definition, they cannot manage alone. They have multiple chronic conditions many ofwhich are degenerative - and do not improve - such as Multiple Sclerosis and Alzheimer's disease, and require long-term care services for basic activities of daily living including ambulation, toileting, and cooking.
144. Pursuant to his obligations under the Medicaid Act and its implementing
regulations, as well as the federal 1115 waiver, Defendant Zucker included in his contracts with
MLTCs and MMCs the obligation to comply with the Medicaid Act and its implementing
regulations and state law and regulations in their processes to assess, authorize, deny, reassess, reauthorize, increase, reduce, terminate and discontinue Medicaid-funded home care services for
Medicaid recipients enrolled in each plan.
27

145. Defendant Zucker routinely fails to provide timely and adequate notices and opportunities for Fair Hearings to members of the plaintiff class and Defendants Zucker and Proud routinely fail to authorize and provide aid-continuing.
146. MCO members have the right to request an "internal appeal" in which the plan will review the correctness of its own determination. Under defendant Zucker's policy, MMC members havethe option of requesting an internal appeal or proceeding directly to a fair hearing. If they initially request an internal appeal and lose, they may still request a fair hearing. The internal appeal does not toll the MMC member's time frame to request a fair hearing. An MMC member who opts to request an internal appeal and loses can then be denied a fair hearing if the hearing request was filed more than sixty days afterthe plan's initial adverse determination.
147. Defendant Zucker routinely fails to provide notices that adequately explain that requesting an internal appeal will not toll the timeperiod to request a fair hearing.
148. Unlike mainstream MMC members MLTC members must request an internal appeal as a pre-condition of requesting a fair hearing.
149. Defendant Zucker routinely fails to provide notices that adequately explain the exhaustion requirement.
150. When an MLTC or MMC plan denies an internal appeal, this triggers the need to issue a second notice. This notice must include, among other requirements, an explanation of the outcome of the internal appeal, the reasons for the decision, and the recipient's right to request a Fair Hearing and to receive aid continuing until a DAFH is issued from an Administrative Law Judge. This notice, like the initial notice, must be timely - it must be provided in advance of the proposed reduction, to afford the opportunity to request a fair hearing
28

with aid continuing. Defendant Zucker routinely fails to provide or ensure timely notice after an internal appeal.
151. Defendants Zucker and Proud, have a custom and practice of routinely failing to take one or more - and sometimes all - of the steps required by law and regulation when denying requests for new services, increases of current home care services or threatening reductions or terminations of such services, and in the administration of the fair hearings challenging such
determinations.
152. Defendant Zucker has a custom and practice of routinely failing to issue timely and adequate notice, or any written notice at all, before reducing or terminating home care services. Many class members only receive a phone call, or are told by a nurse or care manager that services are being reduced or terminated. Without notice many recipients do not even know they have the right to appeal, let alone navigate the applicable appeals procedure to maintain
critical home health services.
153. When some written notice is provided, Defendant Zucker has a custom and practice of routinely failing to provide such notice at least 10 days prior to the date of the intended action as required by law and regulation for reductions or terminations of home care
services.
154. When some written notice is provided, Defendant Zucker has a custom and practice of routinely failing to provide notice of adverse actions that is adequate. These notices frequently do not include an appropriate explanation of the legal and factual basis justifying the denial, reduction, discontinuance of services, an explanation of their rights to appeal and to aid continuing, an explanation of internal appeals and how requesting them or failing to request them impacts the right to a fair hearing.
29

155. Defendant Zucker has a custom and practice of routinely failing to issue timely and adequate notices of reductions, terminations, or discontinuances of home care services with "aid continuing" rights. Instead of notices giving advance warning of a reduction or termination in services, MCO notices routinely mischaracterize the plans' actions as a mere "authorization" for services, or as "denial" of requests for an increase in services. This distinction is critical, as plaintiffs whose services are reduced or terminated have the right to request an appeal with aid continuing, while an individual appealing a denial of a new or increased service or of a mere "authorization" has no right to aid continuing. Moreover, this mischaracterization unlawfully shifts the burden of proof in the appeal to the recipient, when the plan has the burden of proving that a reduction or termination is justified.
156. Defendant Zucker has a custom and practice of arbitrarily and capriciously reducing or terminating the home care services of Medicaid recipients whose medical condition is the same or worse than it was in the previous authorization.
FIRST CAUSE OF ACTION
1. Defendant Zucker's custom and practice of threatening to reduce or terminate, and of actually denying, reducing, or terminating home care services without first providing timely and adequate notice of such adverse actions and an opportunity for a fair hearing, violates Plaintiffs' rights under 42 U.S.C.§ 1396a(a)(3); 42 C.F.R. §§ 438.10; 438.210(b),(c), and (d), 438.400-410; 431.211;; New York Social Services Law § 22(12); 18 N.Y.C.R.R §§ 505.14(b)(5)(v)(c)5, 358-2-2, 358-2.23, and 358-3.3; and the Due Process clauses of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, and of the New York State Constitution, N.Y. Const. Art. I, § 6.
SECOND CAUSE OF ACTION
30

2. Defendant Proud's custom and practice of failing to authorize and State Defendants's custom and practice of failing to provide aid-continuing where required violates Plaintiffs' rights under 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 438.420, 438.424 ; New York

Social Services Law § 365-a(8); New York Social Services Law § 22(12); 18 N.Y.C.R.R § 358-

3.6; and the Due Process clauses of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, and of the New York State Constitution, N.Y. Const. Art. I, § 6.

THIRD CAUSE OF ACTION
3. Defendant Zucker's custom and practice, of reducing and terminating home care services when there has been no change in the recipient's condition or circumstances that would justify the reduction or termination, violates Plaintiffs' rights under the Due Process Clause of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, 42 CFR §

438.210(a), and as specifically set forth in Mayer v. Wing, 922 F.Supp. 902, and State Defendant's own regulations at 18. N.Y.C.R.R. § 505.14(b)(5)(v)(c).

FOURTH CAUSE OF ACTION

4.

Defendants' custom and practice of denying, reducing and terminating Plaintiffs'

home care services, by sending inadequate and untimely notices, or no notices at all, and of

failing to provide an opportunity for a fair hearing, threatens to result in the unnecessary

institutionalization of Plaintiffs, in violation of their right to receive services in the most

integrated setting appropriate to their needs as guaranteed by Title II of the Americans with

Disabilities Act, 42 U.S.C. § 12131, et seq.; 28 C.F.R. §§ 35.130(d); Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794; 28 C.F.R. §§ 41.51(d); and 45 C.F.R. § 84.4(b)(2)

WHEREFORE, it is respectfully requested that this Court enter judgment: 1. Certifying a class pursuant to Fed. R. Civ. P. Rule 23(a) and (b)(2), defined as:
31

All current and future Medicaid recipients in New York State who receive home care services through Medicaid Managed Care Organizations and who have suffered or will suffer threatened or actual denials, reductions, or terminations of their home care services without timely and adequate notice, and / or withoutany change in their condition or circumstances which would justify a reduction or termination, and/or without aid-continuing benefits pending internal appeals and the issuance of Decisions After Fair Hearings;
2. Declaring that DefendantZucker's custom and practice of threatening to reduce or terminate, and of actually denying, reducing, or terminating home health services without first providing timely and adequate notice of such adverse actions and an opportunity for a fair hearing, violates Plaintiffs' rights under 42 U.S.C.§ 1396a(a)(3); 42 C.F.R. §§ 438.10; 438.210(b),(c), and (d), 438400-410; 431.211; New York Social Services Law § 22(12); 18 N.Y.C.R.R §§ 505.14)(5)(v)(c)and 358-2-2, 358-2.23, and 358-3.3; and the Due Process clauses
of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, and of the New York State Constitution, N.Y. Const. Art. I, § 6;
3. Declaring that Defendants' custom and practice of failing to authorize and Defendants' custom and practice of failing to provide aid-continuing where required, violates Plaintiffs' rights under 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§438.420,438.424 ; New York Social Services Law § 365-a(8); New York Social Services Law § 22(12); 18 N.Y.C.R.R § 3583.6; and the Due Process clauses of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, and of the New York State Constitution, N.Y. Const. Art. I, § 6;
4. Declaring that Defendant Zuker's custom and practice of reducing and terminating home care services when there has been no change in the recipient's condition or circumstances that wouldjustify the reduction or termination, violates Plaintiffs' rights under the Due Process Clause of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, § 1, 42 CFR §
32

438.210(a), and as specifically set forth in Mayer v. Wing, and State Defendant's own regulations at 18. N.Y.C.R.R. § 505.14 (b)(5)(v)(c);
5. Declaring that Defendants' custom and practice of denying, reducing and terminating Plaintiffs' home care services, by sending inadequate and untimely notices, or no notices at all, and of failing to provide an opportunity for a fair hearing, threatens to result in the unnecessary institutionalization of Plaintiffs, in violation of their right to receive services in the most integrated setting appropriate to their needs as guaranteed by Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.; 28 C.F.R. §§ 35.130 (d); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; 28 C.F.R. §§ 41.51( (d); and 45 C.F.R. § 844(b)(2)
6. Enjoining Defendants to immediately reinstate home care services in the amount of 10 hours per day as aid continuing for plaintiff Janie TAYLOR;
7. Enjoining Defendant Zucker from threatening to deny, reduce, or terminate, or actually denying, reducing or terminating Plaintiffs' home care services without sending a timely and adequate notice that clearly identifies the proposed action, correctly characterizes the nature of the action being taken, states the reason for the action, and states the right to and process for requesting an internal appeal, a fair hearing, and aid-continuing;
8. Enjoining Defendants to authorize and provide aid-continuing when required., 9. Enjoining Defendant Zucker from reducing and terminating home care services when there has been no change in the recipient's condition or circumstances that would justify the
reduction or termination;
10. Awarding reasonable attorney's fees, as provided by 42 U.S.C. § 1988(b) and 42
U.S.C. 12102(2). 11. Awarding costs and disbursements; and 12. Granting such other and further relief as this Court deems just and proper.
33

Dated: July 15, 2014

New York, New York NEW YORK LEGAL ASSISTANCE GROUP
YisroelS^lman_President and Attorney in Charge
B>
Jane Greeng&ld Stevens, of counsel Sabrina T^vi, ofcounsel Benjamin Tayior, of counsel 7 Hanover Square, 7th Floor New York, NY 10004 (212)613-5000

34

 
 Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 1 of 22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
JAMIE TAYLOR; EDDY LEMIEUX by his NEXT FRIEND MARIE LADINY; and ANIBAL SANTIAGO by his NEXT FRIEND DENISE RIVERA, individually and on behalf of all others Similarly situation,
Plaintiffs,
-against-
HOWARD ZUCKER, as Acting Commissioner of The New York State Department of Health; SHARON DEVINE, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance,
Defendants.

USDC SDNY DOCUMENT ELECTRONICALLY FILEJ;:
, DDAOTCE#:FILED:_jJ·~Jt_5 i1
.. .:, ·: :. '.:._:.:=.:.·=.-:-,:.:~..::.:..=_ _;=====.:~- ~ ·"··~~:·:~"
No. 14-CV-05317 (CM)

MEMORANDUM DECISION AND ORDER ON MOTION FOR LEAVE TO FILE AMENDED CLASS ACTION COMPLAINT AND MOTION FOR CLASS CERTIFICATION
McMahon, J.: Before the Court are Plaintiffs' motions to amend the complaint and to certify a class
under Rule 23(b)(2). For the reasons set forth below, Plaintiffs' unopposed motion to amend the complaint is
GRANTED. Plaintiffs' motion for class certification is DENIED. BACKGROUND
Plaintiffs bring this action against Howard Zucker, the Acting Commissioner of the New York State Department of Health, and Sharon Devine, the Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance ("Defendants"). Plaintiffs allege Defendants' practices have led to the reduction and termination of home services for
1

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 2 of 22
Medicaid recipients without timely and adequate notice and without any change in plaintiffs' conditions which would merit such reduction or termination. (Docket# 1 at 1).
Medicaid is a joint state and federal program created under Title XIX of the Social Security Act to provide medical insurance for needy individuals. 42 U.S.C. § 1396, et. seq. ("Medicaid"). Under Medicaid, the federal government provides funding to participating states to establish medical assistance programs. The states are not required to participate in the Medicaid program; however, states that participate must conform to federal regulations. 42 U.S.C. §§ 1396a, 1396c. Of particular relevance here, participating states must administer the Medicaid program through a single state agency and must adopt a plan overseen by the federal Center for Medicare and Medicaid Services ("CMS"). 42 U.S.C. § 1396a(a)(5).
New York has elected to participate in Medicaid and administers the program through the New York Department of Health. N.Y. Soc. Serv. L. § 363-a(l). The New York Medicaid plan includes access to long-term "home care" services. These services include visiting nursing, home-based therapy, assistance with personal hygiene, mobility assistance, and nutritional support. (Docket #1 at 9).
Under Section 1115 of the Social Security Act, CMS may grant waivers to states from certain requirements of the Medicaid program. In 1997, the CMS granted New York a Section 1115 waiver for the New York Partnership Plan, which mandates that individuals eligible for Medicare enroll in managed care organizations ("MCOs"). N.Y. Soc. Serv. Law§ 364-j(2)(a). MCOs are independent health insurance plans that coordinate the provision of Medicare to their enrollees. (Docket# 33 at 1). They can be either for-profit or not-for-profit organizations.
2

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 3 of 22
Delivering care through MCOs replaced a system whereby county-level social service districts administered Medicaid services and health care providers were responsible for paying for the services provided. (Docket# 33 at 4).
MCOs are obliged by law to assess their patients "to ensure that all participants are provided with appropriate services, including special care." N.Y. Soc. Serv. Law§ 364-j(4)G)(2). MCOs are responsible for mailing timely notices to the patients regarding any change in patient care or benefits. 42 C.F.R. § 438.404. Additionally, MCOs must have an internal appeals process in place in which enrollees may challenge any changes in care.
There are two different types of MCOs for Medicaid recipients in New York, depending on whether the recipient receives Medicare in addition to Medicaid. (Docket #1 at 11). Since 2010, when New York's Section 1115 waiver was amended, Medicaid recipients who need long term care services but who do not receive Medicare must enroll in a different class ofMCO, a Medicaid Managed Care plan ("mainstream MCO")(Docket #1 at 11). Beginning in November 2012, Medicaid recipients who are on Medicare were required to enroll in Managed Long Term Care plans ("MLTC") (Docket #35 at 2). There are a total of 19 mainstream MCO plans and 49 MLTC plans in New York. (Docket #33 at 10). There are three different types of MLTCs: the Medicaid MLTC (partial cap) plans, Medicaid Advantage Plus ("MAP"), and Programs of AllInclusive Care for the Elderly ("PACE") plans. (Docket #33 at 10). Plaintiffs Lemieux and Santiago are enrolled in mainstream MCOs, whereas Plaintiffs Taylor and Tsvilikhovsky are enrolled in MLTCs. (Docket# 33 at 11).
In his capacity as the Acting Commissioner of the New York State Department of Health, Defendant Zucker has contracted with each mainstream MCO and MLTC. The contract terms require that "the services ... be furnished in an amount, duration, or scope to reasonably be
3

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 4 of 22
expected to achieve the purpose for which the services are furnished." 42 C.F.R. § 438.21 O(a)(3)(i). Federal law requires that Medicaid recipients be given adequate and timely notice of their opportunity for a fair hearing when their benefits are denied, reduced, or terminated. 42 U.S.C. § 1396(a)(3). Under certain circumstances, when a recipient requests a fair hearing, his or her level of care cannot be reduced until the hearing is concluded and a final decision rendered. 42 U.S.C. § 1396(a)(3); (Docket #33 at 9).
Under the New York Medicaid plan, fair hearings are administered by the Office of Temporary and Disability Services' Office of Administrative Hearings ("OAH"), which holds such hearings on behalf of the Department of Health. (Docket #33 at 9). OAH receives requests for, schedules, and conducts these hearings. (Docket #33 at 9).
Recipients who are members of mainstream MCO plans have the right to appeal adverse determinations by filing an internal appeal or by demanding a fair hearing. While an internal appeal is not a prerequisite for a fair hearing, recipients who first follow the internal appeal procedure do not give up their right to demand a fair hearing. (Docket #1 at 14). Ifrecipients pursue an internal appeal and lose, they have 60 days from initial adverse determination notice to file an appeal for a fair hearing. (Docket #1 at 28).
Recipients who are covered by MLTC plans must appeal adverse determinations through an internal appeals process before they may be granted a fair hearing - in other words, for senior citizens who are covered by Medicare, an internal appeal is a prerequisite to a fair hearing. (Docket # 1 at 15).
All MCOs, regardless of type, are required to "give enrollees any reasonable assistance in completing forms and taking other procedural steps." 42 C.F.R. § 438.406(a)(l). MCOs must also provide enrollees with adequate notice whenever there has been a determination to deny,
4

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 5 of 22
reduce, or terminate services (42 C.F.R. § 438.404). The state must monitor whether MCOs are complying with these rules. (42 C.F.R. § 438.lOO(a)).
Plaintiffs claim that Defendant Zucker has a custom and practice of reducing or terminating without adequate notice of opportunities to appeal and when there has been no change in an enrollee's medical condition. (Docket #1 at 30-31). Plaintiffs claim that Defendant Zucker fails to provide timely and adequate notices of opportunities for appeal and continuously fails to authorize continued care to enrollees pending the results of the appeals process. (Docket #1 at 28). Plaintiffs also claim that Defendant Zucker does not give adequate notice explaining that requesting an internal appeal will not toll the time period to request a fair hearing. (Docket # 1 at 28). Plaintiffs further claim that Defendant Zucker does not adequately explain that under MLTC plans, enrollees must have been issued a final decision from an internal appeal before they may request a fair hearing. (Docket #1 at 28).
As of various dates in 2015 (April 15 for mainstream MCOs and July 1 for MLTCs), DoH has begun to require the use of standardized forms to give recipients notice about the appeals process. (Docket #33 at 12). While these standardized forms of notice were intended to ensure that the notice process complied with the law, Plaintiffs claim that their adoption is "not a panacea for all of the systemic harms suffered by Plaintiffs." (Docket #38 at 6).
Named Plaintiffs Janie Taylor Plaintiff Janie Taylor is 84 years old and suffers from several medical conditions including diabetes, hypertension, unsteady gait, and high blood pressure. (Docket #18, Exhibit B
i! 1-3). She lives alone in Harlem.
5

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 6 of 22
Plaintiff Taylor needs assistance with basic mobility - moving from room to room, preparing meals, bathing, dressing, etc. (Docket #18, Exhibit Bat~ 3). Prior to November 2012, she was authorized by her local social services district to receive Medicaid home care services 10 hours a day for 7 days a week. (Docket #19, Exhibit B ~ 1-2). Due to the November 2012 waiver change, Plaintiff Taylor was mandatorily enrolled in the VNS Choice MLTC plan in March 2013. At first she was authorized for the same level of home care: 10 hours a day, 7 days a week, as previously authorized. (Docket #18, Exhibit Bat~ 5).
On June 23, 2014, Plaintiff Taylor was mailed a document (dated June 19, 2014) informing her that she was only authorized to receive 5 hours of care, seven days a week, beginning on July 1, 2014 and ending December 31, 2014. (Docket# 18, Exhibit B at~ 7). Plaintiff Taylor had not asked to change the amount of home care she was receiving; the notice was labeled as a "new authorization" rather than a reduction. (Docket # 18, Exhibit B at~ 8). The notice did not explain any reason for the reduction in care and there was no change in Plaintiff Taylor's condition. The notice did not advise Plaintiff of her right to an appeal. (Docket # 18, Exhibit B ~ 8-11 ).
A social worker at Plaintiffs doctor's office filed an internal appeal, which was denied on July 1, 2014. That same day, the New York Legal Assistance Group ("NYLAG") demanded a fair hearing for Plaintiff Taylor and contacted the Office of Temporary and Disability Assistance for aid-continuing services. Plaintiff Taylor's original level of care (10 hours a day) resumed on July 16. Plaintiffs lawyer advised Plaintiff that her fair hearing was held on July 30. Plaintiff won at the hearing by default; neither the State nor the VNS sent a representative to defend the reduction in care.
6

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 7 of 22
Anibal Santiago
Plaintiff Anibal Santiago is a 65-year old resident of Manhattan. Due to his condition his niece, Denise Rivera, brings the action as his next friend.
Plaintiff Santiago, who suffers from diabetes, high blood pressure, and schizoaffective disorder, needs assistance with outdoor mobility, personal hygiene, meal preparation, etc. (Docket #18, Exhibit Cat~ 4). He has been enrolled in Healthfirst, a mainstream MCO plan, since 1997. (Docket #18, Exhibit Cat~ 1-3).
Healthfirst authorized personal care services for Santiago for 12 hours a day, 7 days a week for three years. On April 2, 2014, Healthfirst sent Plaintiff Santiago a notice that he was "approved" for personal care in the amount of only 4 hours, 7 days a week. (Docket #18, Exhibit C at ~ 7-8). There was no change in Plaintiff Santiago's condition.
The notice informed Plaintiff of his right to file an internal appeal but did not give any reason for the reduction of care, inform Plaintiff Santiago about his right to a fair hearing (to which he was entitled without first filing an internal appeal), or notify him of his ability to file for aid-continuing.
On April 22, 2014, Plaintiff Santiago's sister filed an internal appeal. Healthfirst responded on May 2, 2014 by reassessing Plaintiffs case and restoring half of Plaintiffs lost care; he was told that he was entitled to care 8 hours a day, 7 days a week. This notice advised Santiago of his right to a fair hearing. Santiago was not given aid-continuing at his prior level until the New York Legal Assistance Group called the Office of Temporary and Disability Services.
7

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 8 of 22
Santiago was reassessed by Healthfirst on February 18, 2015, and was advised that an appropriate level of care from February 2, 2015 to July 31, 2015 would be 8 hours a day, 7 days a week. On February 23, 2015, NYLAG demanded a fair hearing on behalf of Plaintiff Santiago. Eddy Lemieux
Plaintiff Eddy Lemieux is an 18 year old who lives with his aunt and severely disabled uncle in Brooklyn. Because of his condition, Plaintiff Lemieux's aunt, Marie Ladiny, brings this action as his next friend.
Plaintiff Lemieux suffers from Noonan's syndrome, pulmonary stenosis, severe scoliosis, lymphedema, bone disease, congenital stenosis, and pulmonary insufficiency. (Docket #18, Exhibit D at ~1-3). Due to these conditions, Plaintiff Lemieux is extremely frail and needs assistance with virtually all basic activities. Plaintiffs uncle also receives home care for his disabilities and Plaintiffs aunt works is unable to provide care to both individuals because she works two jobs. (Docket #18, Exhibit D at~ 4-5). Plaintiff Lemieux was authorized to receive 24 hour continuous home care "for many years." (Docket #18, Exhibit D at~ 9-10).
Plaintiff Lemieux has been enrolled in Healthfirst, a mainstream MMC plan, since 2012. On January 14, 2014, Healthfirst sent Plaintiff Lemieux a document explaining that his care would be reduced from 24 hours a day to "12 hours 7 days per week for 4 weeks then 8 hours, 7 days per week for 4 weeks, then 5 hours, 3 days per week for 4 weeks" -- after which, services would be discontinued. (Docket #18, Exhibit D at~ 11). The notice explained that "the requested service(s) is not/are no longer medically necessary because after review of the clinical information provided the Medical Director has determined that the amount of/level of Personal Care Services requested is not medically necessary." (Docket #18, Exhibit D at~ 12).
8

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 9 of 22
Plaintiffs next of friend requested an internal appeal. On January 27, 2014, Healthfirst informed Plaintiff Lemieux that he was approved for services 12 hours a day for 6 weeks, at which time Healthfirst would reassess his condition. Plaintiff Lemieux did not experience a change in his condition.
On February 7, 2014, Plaintiff Lemieux demanded a fair hearing to challenge the reduction of services. The Office of Temporary and Disability Assistance did not enable aidcontinuing until contacted by NYLAG on April 23, 2014.
On August 8, 2014, NYLAG informed Plaintiff that Healthfirst withdrew the notice of intent to reduce Plaintiffs care. (Docket #18, Exhibit D at~ 35).
After a routine assessment in January of2015, Plaintiffs Lemieux's care was again scheduled to be cut in half. (Docket #18, Exhibit D at~ 38). After NYLAG requested another fair hearing, Plaintiff Lemieuz was informed on February 2 that his care would instead be reduced to 16 hours a day on weekdays and would remain at 24 hours a day for the weekends. Two days later, on February 4, 2015, Healthfirst advised Plaintiff Lemieux that he would continue to receive full time care. (Docket #18, Exhibit D at~ 44-46). Plaintiff Lemieux's previously-filed hearing was held on February 19, 2015; neither the state nor Healthfirst was present for the hearing. (Docket #18, Exhibit D at~ 48). Alexander Tsvilikhovsky
Alexander Tsvilikhovsky is nearly 90 years old. He suffers from cardiovascular disease, arrhythmia, vertigo, dementia, and macular degeneration in both eyes. (Docket #18, Exhibit Eat ~ 2-5). His vertigo make him dizzy and nauseous and he needs assistance with basic mobility. Because of his condition, his daughter, Galina Tsvilikhovsky, brings this action as his next friend.
9

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 10 of 22
He is enrolled in a Medicaid MLTC administered by Fidelis. Plaintiff Tsvilikhovsky granted four hours of care per day upon his enrollment in 2012. As his condition worsened, the amount of care was gradually increased, first to six, then eight hours. In October 2014, Fearing that he might injure himself during the night, Plaintiffs daughter asked that he be authorized to receive 24 hour care. Fidelis called Ms. Tsvilikhovsky in November 2014 and verbally told her that the request to increase her father's care had been denied. Plaintiff was not informed that he could appeal the decision and did not do so. (Docket #19, Exhibit Eat~ 9). In December 2014, Plaintiff fell during the night and was hospitalized for seven days. (Docket #18, Exhibit Eat~ 10-11). After her father's hospitalization, Galina Tsvilikhovsky again sought increase to 24 hours care. Fidelis responded in writing in late December that Plaintiff Tsvilikhovsky was approved for 8 hours of care, seven days a week but did not inform Plaintiff of his right to an internal appeal or fair hearing and did not seek either. (Docket # 18, Exhibit Eat~ 13). Plaintiff was hospitalized again for another fall for 6 days in late January of 2015, and his daughter made a third request for an increase in his level of care. In response to that request, Plaintiff received five letters from Fidelis: four indicated that Plaintiff would continue to receive 8 hours of care seven days per week, while the fifth stated that he would receive a total of 36 hours of care per week from January 29, 2015 through February 12, 2015. (Docket #18, Exhibit Eat~ 19). Then, on February 17, 2015, Fidelis called Plaintiffs daughter and informed her that Plaintiffs care would be increased to 10 hours a day, seven days a week.
10

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 11 of 22
Plaintiffs daughter attended a fair hearing in March of 2015 and is still awaiting the result. (Docket# 18, Exhibit E at~ 20-23). Plaintiff Tsvilikhovsky currently receives 10 hours of care seven days a week). (Docket #18, Exhibit Eat~ 23).
DISCUSSION I. Motion to Amend Complaint
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, courts should freely give leave to parties to amend their complaints "when justice so requires." Fed. R. Civ. P. 15. Under Rules 20 and 21, a court may add a plaintiff "on just terms" (Fed. R. Civ. P. 21) "if they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences; and any question of law or fact common to all plaintiffs will arise in the action." Fed. R. Civ. P. 20(a)(l).
Plaintiffs seek to amend the complaint to add Alexander Tsvilikhovsky as a Named Plaintiff, to add factual allegations based on Tsvilikhovsky's claim, and to clarify a few aspects of the original complaint. Defendants have raised no objections to the amendment and there is no reason not to grant the motion. Therefore, the motion to amend the complaint is GRANTED. The amended complaint must be filed within ten days.
II. The Motion for Class Certification is Denied. Plaintiffs seek to maintain this action as a class action pursuant to Fed. R. Civ. P.
23(b)(2), which provides that an action may be maintained as a class action when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The class that Named Plaintiffs seek to represent consists of:
11

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 12 of 22
All current and future Medicaid recipients in New York State who receive home care services through Medicaid Managed Care Organizations and who have suffered or will suffer threatened or actual denials, reductions, or terminations of their home care services without timely and adequate notice, and/or without any change in their condition or circumstances which would justify a reduction or termination, and/or without aidcontinuing benefits to which they are entitled.
The proposed class does not specify a commencement date and so is presumably measured by the statute of limitations.
When confronted with a motion for class certification, the court must determine whether the requirements of Rule 23(a) are met; that is (1) the proposed class is so numerous thatjoinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Rule 23(a)'s four requirements "effectively limit the class claims to those fairly encompassed by the named plaintiffs claims." General Tel. Co. ofNw. v. EEOC, 446 U.S. 318, 330 (1980).
Beyond the Rule 23(a) requirements, a class must be certified under one of the Rule 23(b) subcategories. See Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010). When the proposed class will be proceeding under Fed. R. Civ. P. 23(b)(2), the Supreme Court "has clarified that certification of a class for injunctive relief is only appropriate where 'a single injunction ... would provide relief to each member of the class."' Sykes v. Mel S. Harris and Associates LLC, 780 F.3d 70, 80 (2d Cir. 2015) (quoting Wal-Mart v. Dukes, 131 S.Ct. 2541, 2557 (2011)).
Twombly and Iqbal have no relevance to class certification allegations; the party seeking certification must be prepared to demonstrate that there are "in fact sufficiently numerous parties, common questions oflaw or fact, etc." Wal-Mart, 131 S.Ct. at 2551 (emphasis in original).
12

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 13 of 22
While class certification is not supposed to be a mini-trial on the merits, or delve into factual issues unrelated to the Rule 23 requirements, district judges are required to resolve any factual disputes that are relevant to a finding on each Rule 23 requirement. See In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).
This case is paradigmatic of a type of case that was routinely certified as a class action prior to Dukes v. Wal-Mart. The question facing the court is whether it is appropriate to certify it as a class action now.
The answer is no. a. The proposed class meets the numerosity requirement.
Rule 23(a)(l) requires that "the class is so numerous thatjoinder of all members is impracticable." Fed. R. Civ. P. 23(a)(l). In this circuit, the numerosity requirement is presumed once plaintiffs number 40. See, e.g., Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). In this case, there is no doubt the proposed class is sufficiently numerous. Over 140,000 New Yorkers receive home care services through Medicaid. (Docket #20 at 17). Defendants do not challenge that the numerosity requirement would be met.
b. Plaintiffs would adequately represent the class. Rule 23(a)(4) requires that "class counsel is qualified, experienced, and generally able to conduct litigation." In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir. 1992). In this instance, Plaintiffs are represented by the New York Legal Assistance Group, which has a history of successful and competent litigation before this Court. See (Docket #1 at 7). Defendants do not allege that Plaintiffs' counsel in inadequate and there is no reason to believe otherwise. Plaintiffs must also demonstrate that "there is no conflict of interest between the named plaintiffs and other members of the plaintiff class." Marisol, 126 F.3d at 378. In Marisol, the
13

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 14 of 22
Second Circuit reasoned that because "plaintiffs [sought] broad based relief which would require the child welfare system to dramatically improve the quality of all its services, including proper case management ... the interests of the class members are identical." Marisol, 126 F.3d at 378. Here, the Court perceives no conflict between the named plaintiffs and other class members. Named Plaintiffs seek to improve the administration of the Medicaid home health care program in two ways -- by improving the manner in which notice is to be given to persons who are denied care, or whose care is going to be reduced; and also by prohibiting the Commissioner from denying or reducing care to recipients whose medical circumstances have not changed in ways that would justify a denial or reduction. Such an injunction would presumably be advantageous to all home health care recipients without prejudicing any of them. The requirements are Rule 23(a)(4) are met.
c. Class certification is denied because the claims of the named plaintiffs do not meet the "commonality" and "typicality" requirements after Wal-Mart.
"Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean merely that they have all suffered a violation of the same provision oflaw." Wal-Mart, 131 S.Ct. at 2551. The common injury "must be of such a nature that it is capable of class wide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." WalMart, 131 S.Ct. at 2551 n. 5 (quoting Gen. Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 157-58 (1982)).
The requirements of commonality and typicality "tend to merge into one another, so that similar considerations animate analysis of Rule 23(a)(2) and (3)." Marisol, 126 F.3d at 376. The typicality requirement "is satisfied when each class member's claim arises from the same course
14

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 15 of 22
of events, and each class member makes similar legal arguments to prove the defendant's liability." In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir. 1992).
The motion rests on the question of commonality/typicality. Each of the named plaintiffs has a similar narrative - s/he was receiving home health care via Medicaid for a certain number of hours each day or week; the care was cut back, allegedly without any change in the recipient's medical condition; the recipient was not given any reason for the change in the level of care; the recipient was not given notice that was reasonably designed to apprise him/her of his/her appellate rights or right to demand that there be no change in the level of care while any appeals were being decided. The wrongs done to each named plaintiff - having the level of care reduced arbitrarily and without any medical justification, receiving notice that does not meet the standards of the statute - are the same. The proposed class is defined in a way that, read literally, encompasses only those Medicaid home health care recipients who suffer the same injury as the named plaintiffs.
After Wal-Mart, that is not enough to meet the test of commonality or typicality. In Wal-Mart v. Dukes, a woman who had been fired from her job at Wal-Mart employee brought a Title VII action for employment discrimination. She sought to certify a class of all women employed at the company. Dukes claimed that the company followed a practice of giving store managers discretionary decision-making authority about employment matters within their stores, which led to discrimination against women throughout the corporation. The Ninth Circuit upheld the district court's certification of the lawsuit as a class action. The Supreme Court reversed. The Supreme Court held that though all the members of the proposed class claimed a common violation of the same law (Title VII), the commonality requirement of Rule 23(a) was
15

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 16 of 22
not met because "respondents have not identified a common mode of exercising discretion that pervades the entire company." Wal-Mart, 131 S.Ct. at 2555. The Court adopted and cited the dissent authored by Chief Judge Kozinski of the Ninth Circuit, which argued that the proposed class members "held a multitude of different jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female) ...." Wal-Mart, 131 S.Ct. at 2555. The Court found that Dukes wished
"to sue about millions of employment decisions at once ... [but] [w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Wal-Mart, 131 S.Ct. at 2552. Dukes presented the Court with statistics that suggested there was a regional pay disparity between women and men at the Wal-Mart, however the Court felt that such disparities "may be attributable to only a small set of Wal-Mart stores, and cannot by [themselves] establish the uniform, store-by-store disparity upon which the plaintiffs' theory of commonality depends." Wal-Mart, 131 S.Ct at 2555 (emphasis in original). "One named plaintiffs experience of discrimination" does not suggest that "discriminatory treatment of typical of [the employer's employment] practices." Wal-Mart, 131 S.Ct at 2555 (citing General Telephone Co. ofSw. v. Falcon, 457 U.S. 147, 158 (1982)). Wal-Mart precludes certification of the class that named plaintiffs seek to certify. Named Plaintiffs in the case at bar seek to litigate hundreds of independent decisions regarding different individuals at the same time. As in Wal-Mart, Plaintiffs at bar fail to provide "glue" connecting the reason for each enrollee's reduction or termination of care together. Plaintiffs are unable to demonstrate how Named Plaintiffs are indicative of a systematic failure in the administration of Medicaid in New York State. Named Plaintiffs are all from New York City even though they
16

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 17 of 22
seek to represent a statewide class. Furthermore, the Named Plaintiffs represent only three of 68 MCOs - VNS, Healthfirst, and Fidelis. This is not a representative sample of all the MCOs in
New York State. Plaintiffs cite a case virtually identical to this one, Strouchler v. Shah (Strouchler I), 891
F.Supp.2d 504, (S.D.NY. 2012); Strouchler v. Shah (Strouchler II) 286 F.R.D. 244 (S.D.N.Y. 2012), in which my colleague, Judge Scheindlin, did find sufficient commonality to certify a class. In Strouchler I, elderly and disabled recipients of 24-hour home care in New York City (a subset of the proposed plaintiff class in this case) brought a class action against the New York Commissioner of Health and the New York State Office of Temporary and Disability Services (the same defendants as in this case or more precisely, the individuals who held the same jobs as defendants back in 2012), seeking an injunction to prevent the defendants from "reducing or terminating these services without adequate notice and legitimate reasons ...." Strouchler I, 891 F.Supp.2d at 507 (the very same relief that is requested in this case). My colleague, Judge Scheindlin, without discussing Wal-Mart, certified a class consisting of:
All New York City Medicaid recipients of continuous personal care services who, at any time, since January 1, 2011, have been threatened with unlawful reduction or discontinuance of these services or whose care has been unlawfully reduced or discontinued because the City Defendant has determined that they do not meet the medical criteria for these services. Strouchler II, 286 F.R.D. at 247. Her reason for doing so was that the New York City program was highly centralized and decisions were ultimately made by a single individual: Although the facts of each class member's diagnosis and evaluations are unique to that individual, the following facts regarding the centralization of the program are likely sufficient to satisfy the commonality requirement. All putative class members are recipients of medical care administered by the City pursuant to Medicaid; their eligibility for the care is determined by a set of doctors working in one department; that department is run by one individual, Dr. Anita Aisner, who is personally supervising the review of "all split-shift cases"....
17

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 18 of 22
Strouchler II, 286 F.R.D. at 246. Unlike Wal-Mart, where each alleged instance of discrimination involved a store manager with his/her own discretionary authority, a single individual ultimately decided whether a patient's care would be reduced, and the recommendations she received came from the small staff that she personally supervised. As a result, Judge Scheindlin believed that an injunction directed to the Department of Health would address the plaintiffs concerns "in one stroke." Wal-Mart, 131 S.Ct. at 2551.
Judge Scheindlin's decision, being the decision of a coordinate jurist, is not binding on this court. But there are numerous differences between the case filed in her court and the case before this Court.
First, the proposed class is this case is not limited to New York City residents, as was the case in Strouchler. Rather, plaintiffs seek to certify a statewide class. The common administrator in Strouchler was an employee of the New York City Department of Health, who was administering only the claims of New York City residents. Even under the scheme that was in place back in 2012, recipients of home health care in locations elsewhere in the State (Albany, say, or Buffalo) had their programs administered locally -- not by a single doctor in New York City. Had the plaintiffs in Strouchler been seeking to certify a statewide class, the factors that obviously overcame Wal-Mart for Judge Scheindlin -- unity of administration under the supervision of a single ultimate decisionmaker -- would have been absent. It is, therefore, highly unlikely that she would have reached the same result.
Second, the proposed class in this case is not limited to elderly split-care Medicaid home health care recipients (who also qualify for Medicare), as was the case in Strauch/er. It includes individuals who do not receive Medicare (insurance for those older than 65) but who are nonetheless receiving Medicaid home health care. But since 2010, those individuals have been
18

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 19 of 22
required to be enrolled in a mainstream MCO as a condition of receiving home health care. It is the mainstream MCO - not the State, and not any local health care agency - that has made the decision about whether and how much home health care the recipient would get. There is more than one agency- to be precise, there are at present 19 mainstream MCOs - performing that task. Again the fact underpinning Judge Scheindlin's reasoning - centralized decision-making residing in the hands of a single individual - is lacking for this particular subclass of recipients.
Third, for dual eligible recipients (a subset of which were certified in Strouchler), the rules have changed since Judge Scheindlin certified the class in Strauch/er. Beginning in November 2012, dual eligible (Medicare/Medicaid) recipients who were receiving home health care have been required to enroll in MLTCs-at least, in counties where MLTCs are available (at present, a total of 49 of New York's 62 counties). (Docket# 35 at 2). Once a recipient is enrolled in an MLTC, care decisions work exactly like care decisions for participants in mainstream MCOs -- the MLTC, not the State Department of Health or any public agency, decides what and how much home health care the recipient is to receive. (Docket #35 at 5). There are 49 MLTCs performing this task at the present time - creating an even more fractured decision-making process.
True, the State maintains regulatory oversight over all mainstream MCOs and MLTCs, to ensure they comply with Medicaid and other relevant federal law (Docket # 34 at 1). But the state Health Commissioner does not make any decision to "terminate" or "reduce" services. The managed care organizations do. Decision-making is not centralized.
Plaintiffs argues that since the state is ultimately responsible for ensuring that the 68 mainstream MCOs and MLTCs comply with federal law, the state is responsible for any wrongful adverse terminations of a patient's care, so a single injunction running to the
19

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 20 of 22
Commissioner of the Department of Health can right all wrongs. But that is foolish. The state may have oversight responsible, but the state is neither making decisions to reduce or terminate care for individual patients or sending out notice of those decisions. Each of the 68 MCOs and MLTCs has its own procedures for making these decisions, and at least until the last few months, each had its own procedure for sending notifications. This is precisely the sort of "class action" that runs afoul of Wal-Mart.
Plaintiffs rely for the propriety of certification on Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997), in which the plaintiffs alleged that the City failed to adequately administer its welfare services to children who qualified and that such failure represented a systematic deficiency for which the City was responsible. In Marisol, the Second Circuit affirmed certification of a purported class of, "All children who are or will be in the custody of the New York City Administration for Children's Services ("ACS") .. .."Marisol, 126 F.3d at 375. However, Marisol actually suggests that a class ought not be certified here. Not only is Marisol a pre-Wal-Mart case, which lessens its precedential value, but even back in 2007 the Second Circuit cautioned that the expansive class it had certified was "near the border of the class action device" although in had not crossed into forbidden territory." Marisol, 126 F.3d at 377. If the Marisol class was near the border in 2007, it is highly doubtful that the class would be certified today.
Furthermore, the Circuit directed the district court to divide the Marisol class into numerous subclasses. That is eloquent testimony that Marisol was not really a case in which a single injunction (other than an injunction to "obey the law") could have resolved all the many issues confronting the Court. Again, it is highly unlikely that Marisol could have proceeded as a class action post-Wal-Mart.
20

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 21 of 22
Additionally, Marisol was like Strauch/er, in that commonality and typicality were found because the plaintiffs' injuries "derive from a unitary course of conduct by a single system" Marisol, 126 F.3d at 377 - which, in Marisol, was the New York City Child Welfare Administration. Here, where plaintiffs ask the Courts to certify a class of persons who are serviced by 68 independent entities, we have crossed well into what Marisol identified as "forbidden territory."
Plaintiffs also rely on Shaknes v. Eggleston, 740 F.Supp.2d 602, 625 (S.D.N.Y. 2010), a case in which this Court certified a class of New York City Medicaid recipients who alleged various procedural deficiencies in the processing of Medicaid appeals. Though Shakhnes sounds very similar to the case at bar (indeed, it was brought by the same organization representing the Plaintiffs at bar), the issue in that case was the failure by the Office of Administrative Hearings of the New York State Office of Temporary and Disability Assistance - which schedules all fair hearings statewide - to arrange for fair hearings within 90 days of a recipient's request, as required by 42 U.S.C. § 1396(a)(3). Any issues with the scheduling of hearings in Shakhnes could be addressed by a single office in "one stroke," to use Justice Scalia's language from WalMart. Here, an injunction running to the Defendant Commissioners would have no such effect.
In short, this is not a case in which class certification is appropriate, because it is not a case in which Plaintiffs come close to establishing the kind of commonality and typicality required after Wal-Mart. While each named Plaintiff, and presumably each member of the putative class, has been injured by the alleged violation of the same provision of the law, their common injury is not of such a nature that it is capable of classwide resolution. Neither does each class member's situation arise out of"the same course of events." In re Drexel Burnham Lambert, 960 F. 2d 285, 291 (2d Cir. 1991), because, as was the case in Wal-Mart, the plaintiffs
21

Case 1:14-cv-05317-CM-KNF Document 52 Filed 07/27/15 Page 22 of 22

here have been and are being evaluated by numerous medical personnel, working under multiple supervisors, in 68 different decision-making agencies spread across the vast geographic area that is the State of New York. The fact that these 68 decision-makers fall under the general supervisory authority of the Commissioner of the State Department of Health is of no more relevance than was the fact that everyone in authority in Wal-Mart ultimately worked for a single corporation governed by a single Board of Directors with a nationwide Chief Executive Officer.
The only common thread in this case that comes close to meeting the post Wal-Mart commonality requirement is New York's implementation of model notices. However, the Named Plaintiffs have not yet received these standardized notices; they were notified of their care reduction under the old, fragmented system in which each MCO had its own form of notice. (See Docket #33 at 12). Therefore, Named Plaintiffs' claims are not typical of the claims of individuals who are now beginning to receive the new notice in the form mandated by the Commission.
There is no need to discuss whether Plaintiffs have satisfied the requirements for class certification under Rule 23(b)(2). Because they have failed to meet their burden under Rule 23(a), their motion for class certification is DENIED.
The Clerk of the Court is directed to remove Docket No. 19 from the Court's list of pending motions and to close the file.

Dated: July 27, 2015

BY ECF TO ALL COUNSEL

U.S.D.J. 22

 
 Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 1 of 8
CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:14−cv−05317−CM−KNF

Taylor et al v. Zucker et al Assigned to: Judge Colleen McMahon Referred to: Magistrate Judge Kevin Nathaniel Fox Cause: 42:1396 − Tort Negligence
Plaintiff

Date Filed: 07/15/2014 Date Terminated: 10/13/2015 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Janie Taylor individually and on behalf of all others similarly situated

represented by Jane Greengold Stevens New York Legal Assistance Group 7 Hanover Square, 7th Floor New York, NY 10004 (212) 613−5031 Fax: (212) 750−0820 Email: jstevens@nylag.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Wait Taylor New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212)−613−5069 Fax: (212)−750−0820 Email: btaylor@nylag.org ATTORNEY TO BE NOTICED

Elizabeth Anne Jois New York Legal Assistance Group 7 Hanover Square New York, NY 10004 (212)−613−5093 Fax: (212)−714−7575 Email: ejois@nylag.org ATTORNEY TO BE NOTICED

Michelle Nicole Pallak Movahed New York Legal Assistance Group 7 Hanover Sq. New York, NY 10004 (212)−613−7586 Email: mmovahed@nylag.org ATTORNEY TO BE NOTICED

Sabrina Tavi New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212) 613 5032 Fax: (212)750−0820 Email: stavi@nylag.org ATTORNEY TO BE NOTICED

Plaintiff
Eddy Lemieux by his next friend, Marie Ladiny.

represented by Jane Greengold Stevens (See above for address)

Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 2 of 8

individually and on behalf of all others similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Jois (See above for address) ATTORNEY TO BE NOTICED

Michelle Nicole Pallak Movahed (See above for address) ATTORNEY TO BE NOTICED

Sabrina Tavi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Anibal Santiago by his next friend Denise Rivera, individually and on behalf of all others similarly situated

represented by Jane Greengold Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Jois (See above for address) ATTORNEY TO BE NOTICED

Michelle Nicole Pallak Movahed (See above for address) ATTORNEY TO BE NOTICED

Sabrina Tavi (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Howard Zucker as acting commissioner of the New York State Department of Health TERMINATED: 10/14/2015
Defendant Kristin M. Proud as Commissioner of the New York State Office of Temprorary and Disability Assistance TERMINATED: 10/14/2015

represented by Jennifer C. Simon Office of the Attorney General of the State of New York 120 Broadway, 24th fl. New York, NY 10271 212−416−6556 Email: jennifer.simon@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer C. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/15/2014
07/15/2014

# Docket Text
1 COMPLAINT against Kristin M. Proud, Howard Zucker. (Filing Fee $ 350.00, Receipt Number 100202)Document filed by Janie Taylor, Anibal Santiago, Eddy Lemieux.(laq) (moh). (Entered: 07/21/2014)
SUMMONS ISSUED as to Kristin M. Proud, Howard Zucker. (laq) (Entered: 07/21/2014)

Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 3 of 8

07/15/2014 07/15/2014 07/15/2014 07/15/2014 07/21/2014
07/21/2014
07/21/2014
07/28/2014 07/28/2014 07/28/2014 07/28/2014
07/29/2014 08/04/2014 08/04/2014 08/04/2014 08/05/2014 08/05/2014 08/07/2014

CASE REFERRED TO Judge Shira A. Scheindlin as possibly related to 12cv3216. (laq) (Entered: 07/21/2014)
Case Designated ECF. (laq) (Entered: 07/21/2014)
2 CIVIL COVER SHEET filed. (laq) (moh). (Entered: 07/21/2014)
3 STATEMENT OF RELATEDNESS re: that this action be filed as related to 12cv3216. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(laq) (moh). (Entered: 07/21/2014)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Jane Greengold Stevens for noncompliance with Section 14.2 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E−MAIL the PDF for Document 1 Complaint to: caseopenings@nysd.uscourts.gov. (laq) (Entered: 07/21/2014)
***NOTICE TO ATTORNEY TO SUBMIT PDF OF CIVIL COVER SHEET. Notice to Attorney Jane Greengold Stevens, to submit PDF of the Civil Cover Sheet. Email a copy of Civil Cover Sheet to: caseopenings@nysd.uscourts.gov. (laq) (Entered: 07/21/2014)
***NOTICE TO ATTORNEY TO SUBMIT RELATED CASE STATEMENT. Notice to Attorney Jane Greengold Stevens, for noncompliance with Local Civil Rule 13 of the Rules for the Division of Business Among Judges. Attorney must submit Related Case Statement for filing. Send a hard copy of the Related Case Statement form to: Clerk's Office, Finance Unit, 500 Pearl Street, Room 120, New York, NY 10007 and send a PDF of the Related Case Statement form to caseopenings@nysd.uscourts.gov. (laq) (Entered: 07/21/2014)
4 NOTICE OF APPEARANCE by Jennifer C. Simon on behalf of Kristin M. Proud. (Simon, Jennifer) (Entered: 07/28/2014)
5 LETTER addressed to Judge Shira A. Scheindlin from Jennifer C. Simon dated July 28, 2014 re: Plaintiffs' Statement of Relatedness. Document filed by Kristin M. Proud.(Simon, Jennifer) (Entered: 07/28/2014)
6 NOTICE OF APPEARANCE by Sabrina Tavi on behalf of Eddy Lemieux, Anibal Santiago, Janie Taylor. (Tavi, Sabrina) (Entered: 07/28/2014)
7 NOTICE OF CHANGE OF ADDRESS by Jennifer C. Simon on behalf of Kristin M. Proud. New Address: Office of the Attorney General of the State of New York, 120 Broadway, 24th Floor, New York, New York, 10271, (212) 416−6556. (Simon, Jennifer) (Entered: 07/28/2014)
8 NOTICE OF APPEARANCE by Benjamin Wait Taylor on behalf of Janie Taylor. (Taylor, Benjamin) (Entered: 07/29/2014)
NOTICE OF CASE ASSIGNMENT to Judge Colleen McMahon. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 08/04/2014)
Magistrate Judge Kevin Nathaniel Fox is so designated. (pgu) (Entered: 08/04/2014)
CASE DECLINED AS NOT RELATED. Case referred as related to 12−cv−3216 and declined by The Assignment Committee and returned to wheel for assignment. (pgu) (Entered: 08/04/2014)
9 NOTICE OF APPEARANCE by Jennifer C. Simon on behalf of Howard Zucker. (Simon, Jennifer) (Entered: 08/05/2014)
10 LETTER MOTION for Extension of Time to File Answer addressed to Judge Colleen McMahon from Jennifer C. Simon dated August 5, 2014. Document filed by Kristin M. Proud.(Simon, Jennifer) (Entered: 08/05/2014)
11 ORDER granting 10 Letter Motion for Extension of Time to Answer re 10 LETTER MOTION for Extension of Time to File Answer addressed to Judge Colleen McMahon from Jennifer C. Simon dated August 5, 2014. OK. Kristin M. Proud answer due 8/19/2014; Howard Zucker answer due 8/19/2014. (Signed by Judge Colleen McMahon on 8/7/2014) (ja) (Entered: 08/07/2014)

Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 4 of 8

08/18/2014 08/18/2014 08/18/2014 10/20/2014 10/21/2014 10/21/2014 11/07/2014
11/07/2014 11/14/2014 01/30/2015 03/13/2015
03/16/2015
03/16/2015 03/16/2015 03/16/2015

12 CONSENT LETTER MOTION for Extension of Time addressed to Judge Colleen McMahon from Jennifer C. Simon dated August 18, 2014. Document filed by Kristin M. Proud, Howard Zucker.(Simon, Jennifer) (Entered: 08/18/2014)
13 ORDER granting 12 Letter Motion for Extension of Time. Granted. (Signed by Judge Colleen McMahon on 8/18/2014) (ja) (Entered: 08/18/2014)
Set/Reset Deadlines: Kristin M. Proud answer due 10/24/2014; Howard Zucker answer due 10/24/2014. (ja) (Entered: 08/18/2014)
14 LETTER MOTION for Extension of Time to File Answer addressed to Judge Colleen McMahon from Jennifer C. Simon dated October 20, 2014. Document filed by Kristin M. Proud, Howard Zucker.(Simon, Jennifer) (Entered: 10/20/2014)
15 ORDER SCHEDULING AN INITIAL PRETRIAL CONFERENCE: Initial Conference set for 11/7/2014 at 10:15 AM in Courtroom 17C, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. (Signed by Judge Colleen McMahon on 10/21/2014) (kgo) (Entered: 10/21/2014)
16 ORDER granting 14 Letter Motion for Extension of Time to Answer. OK − last extension (Kristin M. Proud answer due 11/14/2014; Howard Zucker answer due 11/14/2014.) (Signed by Judge Colleen McMahon on 10/21/2014) (kgo) Modified on 10/22/2014 (kgo). (Entered: 10/21/2014)
Minute Entry for proceedings held before Judge Colleen McMahon: Initial Pretrial Conference held on 11/7/2014. Decision: Discovery is stayed until 1/23/2015. If the parties are unable to settle within that period, they must begin litigating, and must appear for a case management conference on January 30, 2015 at 9:30 a.m. (Submitted by Sarah Siegel). (mde) (Entered: 11/07/2014)
Set/Reset Hearings: Case Management Conference set for 1/30/2015 at 9:30 AM in Courtroom 17C, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. (mde) (Entered: 11/07/2014)
17 ANSWER to 1 Complaint. Document filed by Kristin M. Proud, Howard Zucker.(Simon, Jennifer) (Entered: 11/14/2014)
Minute Entry for proceedings held before Judge Colleen McMahon: Pretrial Conference held on 1/30/2015. Decision: Conference held. Motion to certify a class action due 3/13/15. All discovery to be completed by August 28, 2015. (Submitted by Sarah Siegel). (mde) (Entered: 02/05/2015)
18 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Amend/Correct the Class Action Complaint., MOTION to Certify Class . Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Attachments: # 1 MOL in Support of Motions to Amend and for Class Certification, # 2 Exhibit Decl of Jane Stevens In Support of Motions, # 3 Ex. A Proposed Amended Complaint, # 4 Affidavit Ex. B Decl. of Janie Taylor, # 5 Affidavit Ex. C Decl. of Denise Rivera, # 6 Affidavit Ex. D Decl. of Marie Ladiny, # 7 Affidavit Ex. E Decl. of Galina Tsvilikhovsky, # 8 Affidavit Ex. F Decl. of Maria Shkolnik, # 9 Affidavit Ex. G Decl. of Elizabeth Jois)(Stevens, Jane) Modified on 3/16/2015 (db). (Entered: 03/13/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Jane Greengold Stevens to RE−FILE Document 18 MOTION to Amend/Correct the Class Action Complaint. MOTION to Certify Class . ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) (Entered: 03/16/2015)
19 MOTION to Amend/Correct the Complaint., MOTION to Certify Class . Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Stevens, Jane) (Entered: 03/16/2015)
20 MEMORANDUM OF LAW in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class . . Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Stevens, Jane) (Entered: 03/16/2015)
21 DECLARATION of Jane Greengold Stevens in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Attachments: # 1 Exhibit Proposed

Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 5 of 8

03/16/2015 03/16/2015 03/16/2015 03/16/2015 03/16/2015 03/16/2015 03/18/2015 03/24/2015 03/24/2015 03/26/2015
03/26/2015 03/26/2015 04/10/2015 04/10/2015
04/10/2015
04/10/2015 04/24/2015

Amended Complaint)(Stevens, Jane) (Entered: 03/16/2015)
22 DECLARATION of Janie Taylor in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Stevens, Jane) (Entered: 03/16/2015)
23 DECLARATION of Denise Rivera in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Stevens, Jane) (Entered: 03/16/2015)
24 DECLARATION of Marie Ladiny in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Stevens, Jane) (Entered: 03/16/2015)
25 DECLARATION of galina Tsvilikhovsky in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Stevens, Jane) (Entered: 03/16/2015)
26 DECLARATION of Maria Shkolnik in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Stevens, Jane) (Entered: 03/16/2015)
27 DECLARATION of Elizabeth Jois in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Stevens, Jane) (Entered: 03/16/2015)
28 NOTICE OF APPEARANCE by Michelle Nicole Pallak Movahed on behalf of Eddy Lemieux, Anibal Santiago, Janie Taylor. (Movahed, Michelle) (Entered: 03/18/2015)
29 CONSENT LETTER MOTION for Extension of Time addressed to Judge Colleen McMahon from Jennifer C. Simon dated March 23, 2015. Document filed by Kristin M. Proud, Howard Zucker.(Simon, Jennifer) (Entered: 03/24/2015)
30 CONSENT LETTER addressed to Judge Colleen McMahon from Jennifer C. Simon dated March 24, 2015 re: Proposed Case Management Order. Document filed by Kristin M. Proud, Howard Zucker.(Simon, Jennifer) (Entered: 03/24/2015)
31 CIVIL CASE MANAGEMENT PLAN: Joinder of Parties due by 4/15/2015. Expert Discovery due by 10/30/2015. Discovery due by 10/30/2015. Pretrial Order due by 12/14/2015. (Signed by Judge Colleen McMahon on 3/25/2015) (kgo) (Entered: 03/26/2015)
32 ORDER granting 29 Letter Motion for Extension of Time. OK (Signed by Judge Colleen McMahon on 3/25/2015) (kgo) (Entered: 03/26/2015)
Set/Reset Deadlines: Responses due by 4/10/2015 Replies due by 4/24/2015. (kgo) (Entered: 03/26/2015)
33 MEMORANDUM OF LAW in Opposition re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class . . Document filed by Kristin M. Proud, Howard Zucker. (Simon, Jennifer) (Entered: 04/10/2015)
34 DECLARATION of Hope Goldhaber in Opposition re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Kristin M. Proud, Howard Zucker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Simon, Jennifer) (Entered: 04/10/2015)
35 DECLARATION of Margaret Willard in Opposition re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Kristin M. Proud, Howard Zucker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Simon, Jennifer) (Entered: 04/10/2015)
36 DECLARATION of Michael Allen in Opposition re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class .. Document filed by Kristin M. Proud, Howard Zucker. (Simon, Jennifer) (Entered: 04/10/2015)
37 NOTICE OF APPEARANCE by Elizabeth Anne Jois on behalf of Eddy Lemieux, Anibal Santiago, Janie Taylor. (Jois, Elizabeth) (Entered: 04/24/2015)

Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 6 of 8

04/24/2015 06/10/2015 06/11/2015 06/12/2015 06/15/2015
06/15/2015 06/16/2015 06/22/2015
06/24/2015 06/25/2015 06/30/2015 07/01/2015
07/02/2015

38 REPLY MEMORANDUM OF LAW in Support re: 19 MOTION to Amend/Correct the Complaint. MOTION to Certify Class . . Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor. (Movahed, Michelle) (Entered: 04/24/2015)
39 LETTER addressed to Judge Colleen McMahon from jane greengold stevens dated 06.10.2015 re: REquest for referral to Magistrate Judge. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Stevens, Jane) (Entered: 06/10/2015)
40 ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non−Dispositive Motion/Dispute: Discovery Disputes. Referred to Magistrate Judge Kevin Nathaniel Fox. (Signed by Judge Colleen McMahon on 6/11/2015) (kgo) (Entered: 06/11/2015)
41 FILING ERROR − DEFICIENT DOCKET ENTRY − LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Kevin Nathaniel Fox from Jane Greengold Stevens dated 06.12.2015. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Stevens, Jane) Modified on 6/15/2015 (db). (Entered: 06/12/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Jane Greengold Stevens to RE−FILE Document 41 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Kevin Nathaniel Fox from Jane Greengold Stevens dated 06.12.2015. ERROR(S): No signature or s/. (db) (Entered: 06/15/2015)
42 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Kevin Nathaniel Fox from Jane Greengold Stevens dated 6/15/2015. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Stevens, Jane) (Entered: 06/15/2015)
43 LETTER addressed to Judge Colleen McMahon re: PROPOSED PROTECTIVE ORDER. Document filed by Kristin M. Proud, Howard Zucker.(Simon, Jennifer) (Entered: 06/16/2015)
44 ORDER granting 42 Letter Motion for Local Rule 37.2 Conference addressed to Magistrate Judge Kevin Nathaniel Fox from Jane Greengold Stevens dated 6/15/2015. IT IS HEREBY ORDERED that a telephone conference shall be held in the above−captioned action on June 30, 2015, at 2:00 p.m. Counsel to the plaintiffs shall initiate theconference call to (212) 805−6705. (Telephone Conference set for 6/30/2015 at 02:00 PM before Magistrate Judge Kevin Nathaniel Fox.) (Signed by Magistrate Judge Kevin Nathaniel Fox on 6/22/2015) (kko) (Entered: 06/22/2015)
45 LETTER addressed to Magistrate Judge Kevin Nathaniel Fox from Jane Greengold Stevens dated 6/24/2015 re: request to add issue of Defendants' discovery delays to June 30 conference. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Stevens, Jane) (Entered: 06/24/2015)
46 LETTER addressed to Magistrate Judge Kevin Nathaniel Fox from Jennifer C. Simon dated June 25, 2015 re: Response to Plaintiffs' June 12, 2015 Letter. Document filed by Howard Zucker.(Simon, Jennifer) (Entered: 06/25/2015)
Minute Entry for proceedings held before Magistrate Judge Kevin Nathaniel Fox: A Telephone Conference was held on 6/30/2015. As a result of the discussion had during the conference, the discovery dispute raised in the parties' correspondence was resolved. (Midwood, Laura) (Entered: 07/02/2015)
47 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION for Local Rule 37.2 Conference concerning the proposed protective order filed by Defendants addressed to Judge Colleen McMahon from Michelle Movahed dated July 1, 2015. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Movahed, Michelle) Modified on 7/2/2015 (ldi). (Entered: 07/01/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Michelle Nicole Pallak Movahed to RE−FILE Document 47 LETTER MOTION for Local Rule 37.2 Conference concerning the

Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 7 of 8

07/02/2015 07/09/2015 07/20/2015
07/20/2015
07/27/2015
07/30/2015 07/31/2015 08/27/2015 09/08/2015
09/08/2015 09/11/2015

proposed protective order filed by Defendants addressed to Judge Colleen McMahon from Michelle Movahed dated July 1, 2015. Use the event type Letter found under the event list Other Documents. (ldi) (Entered: 07/02/2015)
48 LETTER addressed to Judge Colleen McMahon from Michelle Movahed dated July 1, 2015 re: the proposed protective order filed by Defendants. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Movahed, Michelle) (Entered: 07/02/2015)
49 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Colleen McMahon on 7/8/2015) (kko) (Entered: 07/09/2015)
50 TRANSCRIPT of Proceedings re: Telephone Conference held on 6/30/2015 before Magistrate Judge Kevin Nathaniel Fox. Court Reporter/Transcriber: Shari Riemer, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/13/2015. Redacted Transcript Deadline set for 8/24/2015. Release of Transcript Restriction set for 10/22/2015.(ca) (Entered: 07/20/2015)
51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Telephone Conference proceeding held on 06/30/2015 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(ca) (Entered: 07/20/2015)
52 MEMORANDUM DECISION AND ORDER ON MOTION FOR LEAVE TO FILE AMENDED CLASS ACTION COMPLAINT AND MOTION FOR CLASS CERTIFICATION granting 19 Motion to Amend/Correct ; denying 19 Motion to Certify Class. For the reasons set forth herein, Plaintiffs' unopposed motion to amend the complaint is GRANTED. Plaintiffs' motion for class certification is DENIED. The Clerk of the Court is directed to remove Docket No. 19 from the Court's list of pending motions and to close the file. (Signed by Judge Colleen McMahon on 7/27/2015) (kgo) (Entered: 07/27/2015)
53 CONSENT LETTER MOTION for Extension of Time to Complete Discovery ( CONSENT MOTION FOR STAY OF DEADLINES IN CASE MANAGEMENT PLAN) addressed to Judge Colleen McMahon from Jennifer C. Simon dated July 30, 2015. Document filed by Kristin M. Proud, Howard Zucker.(Simon, Jennifer) (Entered: 07/30/2015)
54 ORDER granting 53 Letter Motion for Extension of Time to Complete Discovery. Sounds good to me. (Signed by Judge Colleen McMahon on 7/31/2015) (kgo) (Entered: 07/31/2015)
55 LETTER MOTION for Extension of Time for submision of proposed revised CMO addressed to Judge Colleen McMahon from jane greengold stevens dated August 27, 2015. Document filed by Eddy Lemieux, Anibal Santiago, Janie Taylor.(Stevens, Jane) (Entered: 08/27/2015)
56 MEMO ENDORSEMENT on re: 55 LETTER MOTION for Extension of Time for submision of proposed revised CMO addressed to Judge Colleen McMahon from jane greengold stevens dated August 27, 2015. filed by Janie Taylor, Anibal Santiago, Eddy Lemieux. ENDORSEMENT: Telephone conference scheduled for 9/11/15 @ 10:30 a.m. Mr. Stevens to initiate the call to chambers with opposing counsel on the line. (Signed by Judge Colleen McMahon on 9/8/2015) (kgo) (Entered: 09/08/2015)
Set/Reset Hearings: Telephone Conference set for 9/11/2015 at 10:30 AM before Judge Colleen McMahon. (kgo) (Entered: 09/08/2015)
Minute Entry for proceedings held before Judge Colleen McMahon: Interim Pretrial Conference held on 9/11/2015. Decision: Conference held. The motion at Docket #55 is granted. The current Case Management Order (Docket #31) is suspended. Submitted By: Jacob D. Charles. (mde) . (Entered: 09/11/2015)

Case: 1:14-cv-5317 As of: 10/31/2017 01:34 PM EDT 8 of 8

10/13/2015
10/14/2015 10/14/2015

57 NOTICE OF VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the above−captioned action is voluntarily dismissed, Without prejudice against the defendant(s) Kristin M. Proud, Howard Zucker. Document filed by Janie Taylor, Anibal Santiago, Eddy Lemieux. (Stevens, Jane) (Entered: 10/13/2015)
Terminate Transcript Deadlines (km) (Entered: 10/14/2015)
58 STIPULATION OF VOLUNTARY DISMISSAL BY PLAINTIFFS WITHOUT PREJUDICE: Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), Plaintiffs hereby voluntarily dismiss all claims in the above−referenced action, without prejudice, against Defendants Howard Zucker, as Commissioner of the New York State Department of Health and Samuel D. Roberts, as Commissioner of the New York State Office of Temporary and Disability Assistance, with all parties to bear their own costs and attorney's fees. (Signed by Judge Colleen McMahon on 10/14/2015) (kgo) (Entered: 10/14/2015)