UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X CHARLES STROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all others similarly situated,

-against-

Plaintiffs,

NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources Administration/Department of Social Services,
Defendants. -------------------------------------------------------------------X

COMPLAINT Docket No.

I. PRELIMINARY STATEMENT 1. Plaintiffs are elderly or disabled Medicaid recipients who depend on twenty-four hour per
day split-shift home care in order to continue to live in their homes in the community. This life-sustaining care is provided and paid for by the New York State Medical Assistance programs. In violation of the court’s holding in Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996) (Scheindlin, J.), due process, and other federal laws, plaintiffs are threatened with drastic reductions of their essential home care services as a result of new practices and procedures, and a new state regulation, challenged in this proceeding. Accordingly, plaintiffs seek declaratory relief invalidating the regulation and defendants’ new policies, as well as an injunction preventing arbitrary reductions that bear no relationship to an individual’s need for services.

2. Contrary to the specific holding of Mayer v. Wing, and its implementing regulations, the City Defendant has notified the named plaintiffs and members of the plaintiff class that their home care will be reduced even though there has been no change in their medical condition and need for service, and even when they have been receiving the same amount of home care services for many years, in some cases for more than a decade.
3. When making the decisions to reduce services to Plaintiffs needing 24- hour continuous home care services (also known as “split-shift” care because it is provided by two home attendants, one working during the day and one at night), the City defendant is relying on a state regulation, challenged in this proceeding, which defines continuous care as the provision of uninterrupted care, by more than one person, for more than 16 hours per day for a patient who, because of the patient’s medical condition and disabilities, requires total assistance with toileting, walking, transferring or feeding at times that cannot be predicted. 18 N.Y.C.R.R.§ 505.14(a)(3)(2012). Rather than being used to limit home care services to those with a medical need for it, City Defendant is improperly using this regulation to deny and terminate split-shift care to almost all Medicaid patients – either by asserting that the patient’s needs are “predictable” – even if the assistance is for a task such as toileting – or because the need for assistance is not “total” but “some ” – even if “some assistance” is assistance with a task such as changing a soiled adult diaper which the patient could not possibly do on her own—or because a bedbound patient needs assistance with turning to prevent bedsores where the patient could not possibly turn on his or her own.
4. The result is that, despite a prior determination of the medical need for split-shift care, City defendant has notified plaintiffs and members of the class that their service will be reduced to “sleep-in” care in which an aide is in the home twenty-four hours per day but
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is expected to be able to sleep during the nighttime hours. As a result, a patient who needs to have an alert attendant at night will not receive medically necessary services. 5. The City defendant has begun a process of re-evaluating every case in which there has been an authorization of split-shift personal care services in order to reduce these medically necessary services to individuals who cannot assist themselves with crucial life-sustaining activities because the individual is somehow able to even minimally participate in a task or because the individual’s nighttime needs can be anticipated or “predicted.” Because many of the named plaintiffs and members of the Plaintiff class have extensive needs at night requiring an alert, awake aide, their health and safety cannot be maintained at home with care only by a sleep-in aide, and they will experience avoidable medical problems requiring treatment or hospitalization, or they will be forced to move to a nursing home. 6. Plaintiffs therefore bring this action for declaratory and injunctive relief to prevent and declare illegal the reduction of their Medicaid home care in violation of the Medicaid Act, 42 U.S.C. § 1396 et seq. and its implementing regulations; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. and its implementing regulations; Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794; and the Supremacy Clause and the Due Process Clause of the 14th Amendment of the United States Constitution.
II. JURISDICTION AND VENUE 7. 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; the Americans with
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Disabilities Act, 42 U.S.C. § 12133; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(a)(2). 8. 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 where all named plaintiffs reside and where a substantial part of the events giving rise to this action occurred.
III. PARTIES 9. Plaintiff CHARLES STROUCHLER is a 67 year old man who lives alone in Manhattan.
Because of his serious medical conditions and impairments, he has been receiving 24hour split-shift Medicaid covered home care 7 days a week since approximately 1997. 10. Plaintiff SARA CAMPOS is a 91 year old woman who lives alone in Manhattan. Because of her serious medical conditions and impairments, she has been receiving 24hour split-shift Medicaid covered home care for the past several years. 11. Plaintiff AUDREY ROKAW is a 93 year old woman who lives alone in Manhattan. Because of her serious medical conditions and impairments, she has been receiving 24hour split-shift Medicaid covered home care 7 days a week since 2010, following a favorable decision in an administrative hearing. 12. Defendant NIRAV SHAH, M.D. is the Commissioner of the New York State Department of Health (“DOH”) and is responsible for the administration of the Medicaid program in the State of New York. He maintains offices for the administration of Medicaid home care services at Corning Tower, Empire State Plaza, Albany, NY 12237. 13. Defendant ELIZABETH BERLIN is the Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance (“OTADA”) and is responsible for administering and supervising the Office of Administrative Hearings in
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New York State. She maintains offices at 40 North Pearl Street, Albany, New York 12243. In New York City OTADA conducts hearings at 14 Boerum Place, Brooklyn, New York. 14. Defendant ROBERT DOAR is the Administrator of the New York City Human Resources Administration (“HRA”) and is responsible for administering and supervising the Medicaid program in New York City. He maintains offices at 180 Water Street, New York, New York 10038.
IV. APPLICABLE STATUTES AND REGULATIONS The Medicaid Program
15. Medicaid is a joint federal-state program established under Title XIX of the Social Security Act (the “Medicaid Act”), which provides federal funding for state programs that furnish medical assistance and rehabilitation and other services to needy individuals. 42 U.S.C. § 1396 et seq.; 42 C.F.R. § 430 et seq.
16. States are not required to participate in the Medicaid program, but if they do, their state programs must conform to federal law and regulations in order to qualify for federal financial participation. 42 U.S.C. §§1396, 1396a, 1396c.
17. 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). 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 (“DOH”). N.Y. Soc. Serv. § 363-a(1).
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18. The DOH, as the “single state agency,” has exercised its authority under the law to delegate certain responsibilities of the program to local districts. However, DOH remains ultimately responsible to supervise the actions of its agents, including HRA, and to ensure that its agents comply with the federal and state statutes and regulations governing the Medicaid program. 42 U.S.C. § 1396a(a)(5); 42 C.F.R. §§ 431.10, 431.50, 435.903; N.Y. Soc. Serv. §§ 22, 363-a(1), 364(2).
19. The Human Resources Administration (“HRA”) is the local social service provider responsible for the day-to-day operations of the Medicaid program in New York City, acting pursuant to a local plan developed and maintained by HRA under the guidance of the DOH.
20. DOH may not delegate to HRA, or any other agent (including its local medical directors) the authority to (i) exercise administrative discretion in the administration or supervision of the State plan, or (ii) issue, policies, rules, and regulations on program matters. 42 C.F.R. § 431.10(e)(1).
21. Although DOH retains the ultimate responsibility for making decisions regarding Medicaid eligibility and services, if a recipient requests an administrative hearing, known as a “fair hearing,” the hearing is conducted by a hearing officer employed by OTADA, who will issue a recommended decision to the Commissioner of DOH who then issues the final administrative decision.
22. Under federal Medicaid requirements, states must provide comparable benefits, i.e., benefits that are equal in “amount, duration, and scope,” to all categorically needy Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(10)(B); 42 C.F.R. § 440.240(a), (b)(1). “Categorically needy” Medicaid beneficiaries are beneficiaries in “categories” specified by federal law, such
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as aged, blind and disabled individuals eligible for Supplemental Security Income (SSI) and other poverty-based programs. 42 U.S.C. §1396a(a)(10)(A). 23. The Medicaid Act also requires states to provide benefits to categorically needy Medicaid benefits that are comparable in “amount duration and scope,” to those benefits provided to” medically needy” Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. §§ 440.240 (b)(1). Medically needy Medicaid beneficiaries are beneficiaries who do not receive cash public assistance because they have income or resources in excess of the requirements for receipt of such assistance, but who nevertheless meet categorical requirements for such assistance, e.g., they are over age 65, blind, or disabled, and have insufficient financial means to pay for their medically necessary care. Individuals in this group become eligible for Medicaid by spending their excess income on medical care. 24. Federal Medicaid law requires participating states to establish reasonable standards, consistent with the objectives of the Medicaid Act, for determining the extent of covered services. 42 U.S.C. § 1396a(a)(17), (19). 25. Federal law prohibits unreasonable reductions in the amount, duration or scope of services based on diagnosis, type of illness, or condition. 42 C.F.R. § 440.230(c), 42 U.S.C. § 1396a (a)(10)(B). 26. Under federal law, a Medicaid recipient has a right to receive covered Medicaid services, and each service must be “sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b), 42 U.S.C. §1396a(10)(B).
Home Care Services under Medicaid 27. Under the Medicaid Act, “Medical Assistance” includes payment of part or all of the cost
of home care services. 42 U.S.C. § 1396d(a)(22). Personal care services, also called
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“home care services,” are services furnished to an individual who is not in an inpatient or institutionalized setting, and are authorized by a physician and provided in accordance with the State’s Medicaid service plan. 42 C.F.R. § 440.167(a). 28. The Federal Centers for Medicare and Medicaid Services explains that personal care services "include a range of human assistance provided to persons with disabilities and chronic conditions . . . which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability," and "most often relate[] to . . . eating, bathing, dressing, toileting, transferring, . . . maintaining continence, . . . personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management." Centers for Medicare and Medicaid Servs., STATE MEDICAID MANUAL § 4480(C), at 4-495 (1999)(emphasis added). 29. In New York State, “Medical Assistance” includes personal care services prescribed by a physician. N.Y. Soc. Serv. § 365-a(2)(e). 30. Under the New York plan, “[p]ersonal care services means some or total assistance with personal hygiene, dressing and feeding; and nutritional and environmental support functions,” such as assistance with feeding, toileting, and walking, where such services are essential to the maintenance of the patient’s health and safety in his or her own home. 18 N.Y.C.R.R., § 505.14(a)(1). New York State’s plan also allows for the provision of personal care through the Consumer Directed Personal Assistance Program (CDPAP) which enables an attendant to perform certain tasks that are beyond the general scope of home attendant practice. N.Y. Soc. Serv. § 365-f; 18 N.Y.C.R.R., § 505.28.
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31. In order to receive personal care services, the patient must have a stable medical condition which is defined as a condition that: (a) is not expected to exhibit sudden deterioration or improvement; (b) does not require frequent medical or nursing judgment to determine changes in the patient’s plan of care; and (c)(1) is such that a physically disabled individual is in need of routine supportive assistance and does not need skilled professional care in the home; or (c)(2) is such that a physically disabled or frail elderly individual does not need professional care but does require assistance in the home to prevent a health or safety crisis from developing. 18 N.Y.C.R.R. § 505.14(a)(4)(i)(a) – (c)(1) & (2).
32. Because a home attendant may be trained to provide certain skilled services under the consumer directed personal assistance program, the program uses a slightly more relaxed definition of medical stability, requiring only that the person’s condition is not expected to exhibit sudden deterioration or improvement and does not require frequent medical or nursing judgment to determine changes in the consumer’s plan of care. 18 N.Y.C.R.R. § 505.28 (b)(13). The requirements of 18 N.Y.C.R.R. § 505.14(a)(4)(i)(c)(1) & (2) do not apply to individuals who are receiving home care through the Consumer Directed Personal Assistance Program. Procedure for Requesting Home Care Services
33. 18 N.Y.C.R.R. § 505.14(b) sets out the procedure for a Medicaid recipient to request home care services. First, the recipient’s doctor must fill out a request for personal care services in accordance with 18 N.Y.C.R.R. § 505.14(c)(i).
34. Next, the City defendant will determine if the individual is eligible for home care by reviewing the physician’s order and conducting a social assessment, a nursing
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assessment, an assessment of the appropriateness and cost-effectiveness of the specified services, and an assessment of any other factors as required by the regulation. 18 N.Y.C.R.R. § 505.14(b)(2)(i)-(v). 35. For any case in which 24-hour continuous care is requested, the City Defendant must complete an independent medical review either by the local professional director, a physician designated by the local professional director or a physician under contract with the local social services department to review personal care services cases. 18 N.Y.C.R.R. § 505.14(b)(4)(i). 36. A social assessment is conducted by having a discussion with the patient about his/her circumstances and preferences and evaluating “the potential contribution of informal caregivers, such as family and friends, to the patient's care.” 18 N.Y.C.R.R. § 505.14(b)(3)(ii)(a),(b),(d). 37. A nursing assessment is completed by a nurse and includes a review and interpretation of the physician’s order, “an evaluation of the functions and tasks required by the patient,” an assessment of the degree of assistance required, “an evaluation whether adaptive or specialized equipment . . . can be provided safely and cost-effectively,” a “development of a plan of care in collaboration with the patient or his/her representative;” and a recommendation for authorization of services. 18 N.Y.C.R.R. § 505.14(b)(3)(iii). 38. When all of the evaluations are completed, the local professional director or designee reviews these assessments and “is responsible for the final determination of the level and amount of care to be provided.” Services can only begin once the authorization is complete. 18 N.Y.C.R.R. § 505.14(b)(4)(ii).
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39. At the end of the initial authorization period, a reauthorization must be completed in order to continue services. The reauthorization procedure follows the same steps as the original authorization, except that a nursing assessment is not required “if the physician’s order indicates that the patient’s medical condition is unchanged.” The reauthorization includes “an evaluation of the services provided during the previous authorization period.” 18 N.Y.C.R.R. § 505.14(b)(5)(ix).
40. 18 N.Y.C.R.R. § 505.28(d) and (f) sets forth a parallel assessment and authorization process for individuals participating in the consumer-directed personal assistance program. Notice and Administrative Hearing Requirements Upon Reduction or Termination of Services
41. Federal law and regulations require timely and adequate notice to Medicaid applicants and recipients of any action to deny, discontinue, suspend or reduce medical assistance authorization or services. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 435.919; 435.912, 431.210; U.S Const. Amend. XIV, § 1.
42. Federal law and regulations also require that a state’s Medicaid program provide Medicaid applicants and recipients an opportunity for 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.
43. When determinations are made to reduce or terminate Medicaid benefits, recipients who request a Fair Hearing in a timely manner are entitled to receive benefits unchanged pursuant to Aid Continuing Directives until a decision after a Fair Hearing is issued. 42 U.S.C. 1396a(a)(3); 42 U.S.C. § 1396a(a)(3); 42 C.FR. § 431.230(a), 431.231(c), U.S.
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Const. Amend. XIV, § 1. Fair Hearing systems must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254 (1970), 42 C.F.R. § 431.205(d). 44. Once a plan of care is created and services are authorized for a Medicaid recipient, those services may be reduced or discontinued only “when such services are … no longer medically necessary or when the social services district reasonably expects that such services cannot maintain or continue to maintain the client’s health and safety in his or her home.” 18 N.Y.C.R.R. § 505.14(b)(5)(v)(a). 45. Pursuant to the court order in Mayer v. Wing, to avoid arbitrary service reductions in violation of the Due Process Clause, services may only be reduced under certain delimited circumstances. Thus, the relevant state regulations outline different categories of appropriate reasons for the reduction or termination of services, including in pertinent part: that “the client’s medical, mental, economic or social circumstances have changed and the district determines that the personal care services provided under the last authorization or reauthorization are no longer appropriate or can be provided in fewer hours than they were previously,” that “a mistake occurred in the previous personal care services authorization,” that “the client can be more appropriately and cost-effectively served through other Medicaid programs and services,” that “the client’s health and safety cannot be assured with the provision of personal care services,” that “the client’s medical condition is not stable;” or that “the services the client needs exceed the personal care aid’s scope of practice . . . .” 18 N.Y.C.R.R. § 505.14(b)(5)(v)(c)(1), (2), (5-7), (9). 46. In administrative hearings challenging a reduction or termination of medical assistance, “the social services agency must establish that its actions were correct.” 18 N.Y.C.R.R. § 358-5.9(a).
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47. The fair hearing decision issued by the commissioner must be based exclusively on the administrative record. The Commissioner must issue a written decision that sets forth the hearing issues, the relevant facts, and the applicable law, regulations, and approved policy, if any, upon which the decision is based. The hearing decision must include findings of fact, a determination of the issues, and the reasons for the determination, along with any specific action to be taken by the social services agency. Further, the hearing decision must be supported by substantial evidence. 18 N.Y.C.R.R. § 358-6.1(a), 18 N.Y.C.R.R. § 358-5.9(b). Disability Discrimination Prohibitions and Requirements
48. Title II of the Americans with Disabilities Act (“ADA”) provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
49. Thus, under the ADA, public entities are required to provide meaningful access to their programs, services and activities, and provide any accommodations or modifications necessary for people with disabilities to access those services. 42 U.S.C. §§ 12131, 12132.
50. Regulations implementing Title II of the ADA provide: “A public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s program with respect to individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3).
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51. The ADA prohibits discrimination based on type of disability. 52. The ADA’s regulations further provide that “[a] public entity shall not impose or apply
eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. § 35.130(b)(8). 53. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). 54. Section 504’s regulations prohibit recipients of federal financial assistance from utiliz[ing] criteria or methods of administration . . . (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons. 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4). 55. Furthermore, pursuant to the requirements of Title II of the ADA and Section 504, public entities and recipients of federal financial assistance must “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d), 28 C.F.R. § 41.51(d).
Medicaid Home Care Services in New York 56. Medicaid-funded home care services enable people, like the named plaintiffs, who need
assistance with the activities of daily living ( essential life activities such as ambulating, bathing, eating, toileting) to receive care from a home attendant while remaining safely in
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their own homes, rather than having to permanently reside in a Medicaid-funded nursing home, hospital or other institution. 57. Medicaid home care services are provided for a set numbers of hours depending on the patient’s needs and the availability of other informal caregivers to provide assistance. Where medically necessary, individuals receiving home care can obtain up to twenty-four hour split-shift care, which involves two home attendants coming to the home, each for twelve hour shifts, seven days per week. 18 N.Y.C.R.R. §§ 505.14(a)(3), (5). 58. The City Defendant also provides “live-in”(also known as “sleep-in”) attendants for individuals who do not require continuous care, but who may need very occasional assistance during the night. These sleep-in attendants generally work in a 12-hour shift (with one “duty free” hour) and are expected to be able to sleep at night, but to be in the home in the event of an emergency or occasional need for assistance during times outside their shift. 59. On information and belief, the City Defendant contracts with various home care agencies to provide home care assistance to Medicaid recipients, and the terms of the contracts require that the home attendants have time to sleep at night, so that one individual does not have to work both day and night. 60. The applicable regulation distinguishes between “total” and “some” assistance. It has long provided that split-shift care is available to individuals who require “total assistance with toileting and/or walking and/or transferring and/or feeding…” 18 N.Y.C.R.R. § 505.14(a)(3). Total assistance is defined to mean that “a specific function or task is performed and completed for the patient.” In contrast, “some assistance” is defined to
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mean that “a specific function or task is performed and completed by the patient with help from another individual.” 18 N.Y.C.R.R. § 505.14(a)(2)(i), (ii). 61. The State defendant recently amended the regulation applicable to personal care services by providing that split-shift personal care services may only be approved if the patient requires “total assistance with toileting, walking, transferring or feeding at times that cannot be predicted.” 18 N.Y.C.R.R. § 505.14(a)(3) [emphasis added]. The former regulation provided such care could be approved when the patient required assistance “at unscheduled times during the day and night.” [emphasis added]. 62. Defendant Shah has formally noted that the modification of the regulation was not expected to result in any service changes for current recipients of split-shift personal care services. 12 OHIP-ADM 1. 63. Notwithstanding the State defendant’s statement, the City defendant notified all Local Medical Directors (LMDs) that upon subsequent reviews of continuous care cases, the LMDs should determine whether the care should be reduced to live-in services where an individual’s need for assistance could be “predicted” or where the person could be found to “participate” in the activity of daily living. 64. While the change in regulatory language seems minor, the new language is being used by the City defendant to permit the reduction of services in split-shift cases regardless of the importance of such assistance to the maintenance of the individual’s health and safety, the frequency with which the individual requires such assistance during the nighttime hours, or the individual’s complete inability to perform the activity without the attendant’s assistance.
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V. FACTS RELATING TO INDIVIDUAL PLAINTIFFS Plaintiff Charles Strouchler
65. Charles Strouchler is a 67-year old man who had worked as an artist until becoming disabled by the effects of multiple sclerosis. He now has advanced multiple sclerosis, with quadriplegia, limitations in respiratory functioning, and difficulty swallowing. He also has Factor XI deficiency, a form of hemophilia. All of these conditions prevent him from performing his activities of daily living without the assistance of a home attendant. For the past 15 years, he has been receiving split-shift personal care services in his home. His services are delivered through the consumer directed personal assistance program.
66. Mr. Strouchler requires the alert attention of a home attendant at night to reposition him every two hours to avoid the development of bed sores and to reposition his arms and legs when he experiences painful spasms at various times throughout the night. In addition, he requires assistance with bladder catheterization and with necessary adjustments to his breathing mask, and assistance to clear his airways to avoid choking when he is in a reclining position. He also requires assistance during the day and night for occasional nasal and rectal bleeding episodes that he experiences. Aside from the turning every two hours, all his other nighttime needs are at unscheduled and unpredictable times.
67. At the time of his most recent re-assessment for services, Mr. Strouchler’s physician recommended that his split-shift services be reauthorized as they had been for the prior 14 years.
68. Mr. Strouchler’s request for continued split-shift services was reviewed by Local Medical Director (LMD) Charles Levit, who had also reviewed Mr. Strouchler’s for his prior
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reauthorization of services in August 2011. In his August 2011 review, Dr. Levit, had determined that Mr. Strouchler should be reauthorized for split-shift services “without change.” In his Local Professional Review form dated February 10, 2012, however, Dr. Levit determined that despite Mr. Strouchler’s need for assistance with nighttime catheterization and repositioning every two hours, Mr. Strouchler’s services should be reduced to sleep-in care because his needs were “predictable” and could be “scheduled.” 69. In a notice dated February 23, 2012 the City determined to reduce Mr. Strouchler’s care because his “nighttime needs which involve turning/positioning and toileting are anticipated and can be scheduled.” The notice went on to conclude that “therefore a mistake had occurred in your previous authorizations and you do not meet the criteria for continuous care.” 70. The only statement regarding a mistake in a previous assessment is found in Dr. Levit’s February 10, 2012 Local Professional Review form which states that “prior split-shift authorizations appear to have been incorrect.” Such conclusion would also apply to Dr. Levit’s own August 2011 recommendation to re-authorize split-shift services for Mr. Strouchler. 71. Mr. Strouchler appealed the City’s determination and a hearing was held on April 9, 2012. 72. At the hearing Mr. Strouchler presented medical evidence of his numerous nighttime needs and challenged City Defendant’s assertion that a mistake had been made in the last 14 re-authorizations of split-shift services. 73. Dr. Levit testified inconsistently and contradictorily at the hearing. First, he stated that split-shift care should be given to individuals with “excessive” nighttime needs, which he
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explained was either more than twice per night or more than four times per night. Either way, he recognized that since, at a minimum, Mr. Strouchler requires turning and positioning every two hours, this need would exceed either interpretation of “excessive” nighttime needs. At the same time, Dr. Levit asserted that it didn’t matter whether or not Mr. Strouchler’s nighttime needs were “excessive” because he would not be entitled to split-shift care because his nighttime needs were “predictable.” 74. Dr. Levit also testified that the “mistake” that had been made in previous authorizations was a “regulatory mistake.” Although he could not provide an entirely clear response, Dr. Levit stated that the Local Medical Directors received an e-mail directive in October, 2011, instructing them that all split-shift cases were to be reviewed to see if the services could be reduced because the individual’s needs could be “predicted.” 75. Mr. Strouchler is currently awaiting a hearing decision. 76. Mr. Strouchler lives alone in an apartment at St. Margaret’s House, a HUD 202/Section 8 housing facility for older individuals and individuals with mobility impairments and other disabilities, which is located near the South Street Seaport. It is a source of great satisfaction to him that he is able to continue to live at home in his apartment, a situation that deeply enriches his life and allows him to maintain relationships with friends and loved ones in a way that would be difficult or impossible in an institution.
Plaintiff Sara Campos 77. Sara Campos is a 91 year old Medicaid recipient who lives alone is Manhattan. 78. Ms. Campos is extremely ill. She suffers from dementia, pain secondary to osteoporosis,
chronic diarrhea and osteoarthritis.
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79. Ms. Campos requires total assistance with every activity of daily living, including the need for turning and re-positioning at least every two hours per night and day to prevent bedsores, and frequent diaper changes to ensure skin integrity.
80. Despite her condition, Ms. Campos receives many benefits from remaining at home, among familiar surroundings and in the familiar community where she is most comfortable. Her loved ones can visit her frequently in her home. Her family believes that if she were transferred to a nursing home, her condition would deteriorate rapidly.
81. For the past several years, Ms. Campos has been able to remain at home because she receives Medicaid funded split-shift personal care services in the amount of 24- hours per day.
82. On February 10, 2012, Ms. Campos received two notices from City Defendant which stated that her personal care services were going to be reduced from 24 hour split-shift services, to twenty-four hour sleep-in services and another which stated that her services were being reauthorized for twenty-four hour split-shift services.
83. On the notice that stated her services were being reduced the stated reason was “our review has determined that your re-authorizations for split-shift care was based on your insomnia and no accommodation for sleep-in services, as such a mistake was made in your initial authorization, therefore you do not meet the criteria for continuous care.”
84. This notice to reduce care is based on a December 9, 2011 determination made by one of the City’s Local Medical Directors, Aura Mask. In her report Dr. Mask concluded that Ms. Campos’s home care should be reduced because her nighttime repositioning and toileting needs can be scheduled, and as such, do not meet the definition for split-shift care.
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85. On February 22, 2012, Ms. Campos’s representative requested a fair hearing to challenge the reduction of her personal care services. The State ordered “aid continuing” pending the hearing decision, and for this reason only her services have remained unchanged.
86. It is not true that Ms. Campos’s nighttime needs can be scheduled and are predictable. In order to prevent bedsores, it is medically necessary that her adult diapers be changed promptly when they are soiled. This happens several times per night.
87. Moreover, even if these medical needs could be predicted, they far exceed what one sleep-in aide is capable of doing. Sleep-in aides are on duty at least one 24-hour period, and must be able to sleep. Because it is medically necessary that Ms. Campos be repositioned at least every two hours, night and day, it would be impossible for a sleep-in attendant to perform this service.
88. If Ms. Campos loses her fair hearing she will have to be admitted to a nursing home because a sleep-in aide will not be able to give her the nighttime care she requires to remain in the community.
Plaintiff Audrey Rokaw
89. Audrey Rokaw is a 93 year old Medicaid recipient who lives alone is Manhattan. 90. Ms. Rokaw is severely disabled, with dementia, osteoarthritis, and congestive heart
failure. 91. Ms. Rokaw requires total assistance with every activity of daily living, including frequent
diaper changes to ensure skin integrity. 92. Despite her condition, Ms. Rokaw enjoys living at home, visited frequently by her loved
ones, and in familiar and comfortable surroundings.
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93. Ms. Rokaw has been receiving home care since she first applied for it in 2010. At that time she was originally approved for 24- hour sleep-in care.
94. Because that amount of care was insufficient, she requested a fair hearing, which in 2010 resulted in a final administrative decision that due to her medical condition she was eligible twenty-four hour split-shift care.
95. On March 12, 2012, Ms. Rokaw received two notices from City Defendant which stated that her personal care services were going to be reduced from 24- hour split-shift services, to twenty-four hour sleep-in services and another which stated that her services were being reauthorized for twenty-four hour split-shift care.
96. On the notice that stated her services were being reduced, the stated reason was: “Our current evaluation confirms that you do not require feeding at night and you require partial assistance with ambulating, transferring, and toileting. This reflects a change in your medical condition and your personal care services can be provided in fewer hours than were previously authorized. Time cannot be provided for redirecting and calming you, as stand-alone tasks.”
97. This notice to reduce care is based on a determination made by one of the City’s Local Medical Directors, Aura Mask, on November 17, 2011. In her report Dr. Mask concludes that Ms. Rokaw’s home care should be reduced because her night time toileting needs are “partial,” as opposed to “total,” and as such do not meet the definition of continuous care.
98. On March 12, 2012, Ms. Rokaw’s representative requested a fair hearing to challenge the reduction of her personal care services. The State ordered “aid continuing” until a decision after the fair hearing, and for this reason only her services have remained unchanged.
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99. It is not true that Ms. Rokaw’s night-time needs can be provided by a sleep-in aide. Her aides report that she needs to have her diaper changed five to six times per night. In order to prevent skin breakdown, it is medically necessary that her adult diapers be changed promptly when they are soiled. She is unable to change her diapers by herself and needs the aide to change them for her.
100. Sleep-in aides are on-duty at least one 24-hour period, and often for several consecutive 24-hour periods and must be able to sleep. Because it is medically necessary that Ms. Rokaw to be changed five to six times per night, it would be impossible for a sleep-in attendant to perform this service.
101. If Ms. Rokaw loses her fair hearing she will have to be admitted to a nursing home because a sleep-in aide will not be able to give her the night time care she requires to remain in the community.
VI. CLASS ACTION ALLEGATIONS
102. Named plaintiffs bring this action pursuant to Fed. R. Civ. P. Rule 23(a) and (b)(2) on behalf of themselves and as representatives of a class of:
All current and future New York City Medicaid recipients who have been determined by either a Court or City or State Defendants to meet the eligibility requirements for continuous personal care services who are threatened with or subjected to a reduction of Medicaid-funded continuous personal care services because City Defendant has determined that they do not meet the criteria for continuous care set forth in 18 N.Y.C.R.R.§ § 505.14(a)(3) or 18 N.Y.C.R.R.§ § 505.28(b)(4). 103. The class is so numerous that joinder of class members would be impracticable. There are currently approximately 1100 individuals living in New York City who are receiving split-shift Medicaid-funded personal care services. Approximately 35,000 residents of
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New York City currently receive some personal care services and may need split-shift care at some point in the future. 104. Further, it would be impracticable for the members of the class, who are by definition elderly and disabled and impoverished, to obtain legal services on an individual basis to assert their claims. Consequently, they will likely be unable to assert their legal rights without certification of a class to represent them. 105. Questions of law and fact common to the class predominate over individual questions. The common questions of law and fact are whether the new regulation and policy result in the reduction of split-shift home care in a way that violates Medicaid law, due process and the ADA. 106. All named class members have claims typical of the class in that they all have received reduction notices notwithstanding that there has been no change in their medical condition or circumstances. Furthermore, although there are individual differences in particular medical conditions of the named plaintiffs, in every one of their cases, the City Defendant has informed them of a decision to reduce their long-term split-shift services because: 1) they need “some” but not “total” assistance with the performance of an activity or activities of daily living; or 2) because their nighttime needs are “predictable” or can be scheduled. Named plaintiffs, like members of the class have received notices of such reductions, which fail to comply with Constitutional and statutory notice requirements, and fail to comply with standards set forth in Mayer v. Wing, and fail to take into account the need for alert nighttime assistance to allow the recipient to remain at home, rather than having to go to an institution.
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107. Named plaintiffs will adequately protect the rights of class members. There are no conflicts of interest between the named Plaintiffs and members of the class in that all would benefit if the City is ordered to refrain from arbitrary decision making and to apply rational and appropriate standards for determining the amount of home care services to be authorized.
108. Named plaintiffs are represented by Leslie Salzman and Toby Golick, Clinical Professors of Law at Cardozo Law School, Ben Taylor, Senior Staff Attorney at New York Legal Assistance Group, and Donna Dougherty, Director of JASA/Legal Services for the Elderly in Queens. All of Plaintiffs’ attorneys are experienced in class action litigation and specifically class actions involving issues under the Medicaid program, including the Medicaid home care programs.
109. A class action is the superior method for a fair and efficient adjudication of this matter in that Defendants have acted in a manner generally applicable to the class and a class action will avoid numerous separate actions by class members that would unduly burden the courts and create the possibility of inconsistent decisions, thereby making final injunctive and declaratory relief appropriate as to the class as a whole.
110. What happened to the named plaintiffs reflects a recent concerted effort by City Defendant to reassess the continuing eligibility of members of the proposed class for receipt of continuous personal care services, with the purpose of drastically reducing the number of home care hours authorized for each individual’s care. In fact, at a recent hearing, one LMD testified that she had recently reviewed 30 continuous care cases and determined to reauthorize continuous care in only two of the 30 cases.
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111. City defendant is reducing home care even when there has been no change or reduction in the individual’s needs or eligibility for personal care services, or any other lawful ground for the reduction.
112. City defendant is making decisions in reverse order by deciding to reduce care and then attempting to justify it after the fact by claiming that there must have been a prior mistake or change in condition, without identifying and articulating either the mistake or the change in condition. In Ms. Campos’ and Mr. Strouchler’s cases and in other instances, the City Defendant is invoking the justification of a “mistake in a prior authorization,” when the individual has received the same level of services for many years, sometimes for more than a decade.
113. The City defendant is using a radical new interpretation and application of the state regulations concerning “total assistance” as a pretext to reduce continuous (split-shift) home care to 24-hour sleep-in care. The City defendant is now irrationally interpreting this regulation to mean that even when a partially paralyzed individual needs an attendant to change his or her diaper, or when an individual cannot get to or use a toilet or commode without the physical assistance of an attendant, those individuals do not require “total” assistance with toileting.
114. The City defendant is also irrationally interpreting the state home care regulation defining continuous care to deny coverage to individuals who require services, such as scheduled turning every two hours to avoid bed sores, because such care can be “predicted,” even though there is no way a sleep-in home attendant could perform these tasks day and night, and still have any opportunity to sleep.
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115. While some errors in City determinations are corrected through administrative hearings, some Medicaid recipients do not request hearings because of age or infirmity, and in some cases the hearings erroneously affirm the reduction or termination of benefits based on the State defendants’ failure to apply consistent and lawful standards, including the failure to find and articulate any changes in circumstances that warrant a reduction in home care.
116. Even if City defendant’s determinations in the named plaintiffs’ cases are reversed by the State Defendants after fair hearings, their situations are capable of repetition at their next home care re-assessment.
VII. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS
FOR ARBITRARY AND IRRATIONAL REDUCTIONS OF MEDICALLY NECESSARY HOME CARE SERVICES 117. Defendants have a policy and practice of arbitrarily and irrationally reducing Plaintiffs’ home care services when there has been no significant change in their conditions or circumstances that would justify the reduction of services. 118. Defendants have arbitrarily proposed to reduce personal care services previously authorized for Plaintiffs to a level that is inadequate to ensure their health and safety at home. 119. Defendants’ policy and practice of authorizing the reduction of home care services where there has been no change in the recipient’s condition or circumstances that would justify the reduction violates plaintiffs’ rights under the Due Process Clause of the 14th
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Amendment to the United States Constitution as specifically set forth in Mayer v. Wing, and State Defendant’s implementing regulations at 18. N.Y.C.R.R. § 505.14 (b)(5)(v)(c).
SECOND CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS FOR REDUCTIONS OF HOME CARE SERVICES WITHOUT ADEQUATE NOTICE 120. Defendants have a policy and practice of reducing plaintiffs’ home care services without
providing notice that articulates any change in the individual’s circumstances or condition that would justify such a reduction. 121. Defendants have a policy and practice of reducing plaintiffs’ home care services pursuant to notices that claim that a mistake had been made in a previous authorization or authorizations, but provide no factual information regarding the alleged prior mistake. 122. Defendants have a policy and practice of sending multiple notices to home care recipients that contain contradictory information, for example sending two notices on the same day, one reducing care, and the other reauthorizing the same level of care. 123. Defendants’ policy and practice of authorizing the reduction of home care services where the notice fails to articulate the factual basis or reason justifying such a reduction, and of sending multiple notices with contradictory information violates plaintiffs’ rights under 42 U.S.C. 1396a(a)(3), 42 C.F.R. §§ 435.919; 435.912, 431.210; and the Due Process Clause of the 14th Amendment to the United States Constitution.
THIRD CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS FOR VIOLATION OF THE ADA and SECTION 504 and their INTEGRATION MANDATES
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124. Named plaintiffs are all disabled within the meaning of the ADA and Section 504, as they have physical and/or mental impairments that substantially limit one or more major life activity. 42 U.S.C. 12102(2); 29 U.S.C. 794; 705(20).
125. Named plaintiffs are all “qualified individuals with a disability” within the meaning of the ADA, 42 U.S.C. 12131(2); 28 C.F.R. 35.104, and Section 504, because they are capable of living safely at home with adequate home care assistance and meet the income eligibility requirements to receive Medicaid home care services.
126. Additionally, relevant treating medical professionals, and often prior nursing and medical professionals affiliated with City Defendant, have recommended split-shift personal care services as a medically appropriate mode of care for plaintiffs. Plaintiffs have not experienced a change in condition or circumstances that would alter their continued eligibility for services.
127. Defendants are the Commissioners of the State Office of Temporary and Disability Assistance and Department of Health and the New York City Commissioner of the Human Resources Administration, which are public entities that receive federal financial assistance for the administration of the Medicaid program making them subject to the provisions of Title II of the ADA and Section 504.
128. Defendants are utilizing regulatory criteria and methods of administration that have the effect of subjecting qualified individuals with disabilities such as Named Plaintiffs and Members of the plaintiff class to discrimination and that have the purpose or effect of substantially impairing accomplishment of the objectives of the Medicaid home care program.
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129. Defendants have been authorizing the reduction of the personal care services of Named Plaintiffs when there has been no change in their needs or circumstances justifying the reductions.
130. As a consequence of these reductions of home care, named plaintiffs will suffer injuries and the unavoidable deterioration of their health status and conditions, necessitating additional treatment or hospitalizations, or they will be required to enter less integrated institutional settings to obtain their long-term care services.
131. Named plaintiffs have been and can be appropriately and safely cared for in their homes by defendants without any fundamental alteration of the defendants’ ability to provide services to other individuals with disabilities needing long-term care under the Medicaid program.
132. Defendants’ conduct subjects plaintiffs to disability-based discrimination and impairs the accomplishment of the objectives of the Medicaid personal care program and has resulted in, will result in, or threatens to result in the unnecessary institutionalization of named 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(b)(3), (b)(8) and (d); and Section 504 of the Rehabilitation Act, 29 U.S.C. 794; 28 C.F.R. § 41.51(b)(3)(i) and (d); 45 C.F.R. § 84.4(b)(4).
FOURTH CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS FOR VIOLATIONS OF LAW BASED ON THE APPLICATION OF
STATE REGULATIONS THAT DEFINE “CONTINUOUS CARE”
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133. Defendant Shah has amended the Medicaid personal care regulation defining continuous, 24-hour home care services, 18 N.Y.C.R.R. § 505.14 (a)(3), in a manner that is inherently irrational on its face and that permits local districts to deny medically necessary services to individuals needing significant amounts of home care services to continue to safely reside in the community.
134. City defendant is relying on the modification of the continuous care definition to deny split-shift services to plaintiffs based on the nature of their medical condition, rather than based on their medical need for services to maintain their health and safety at home.
135. Defendants are utilizing 18 N.Y.C.R.R. § 505.14(a)(3) to deny medically necessary home care services to individuals such as named plaintiffs who have a medical need for frequent nighttime assistance with significant health-sustaining home care tasks because Defendants will not consider their need for assistance with turning and re-positioning or because defendants determine that Plaintiffs need “some” but not “total” assistance with personal care services or because their need for assistance with personal care is “predictable” or capable of being scheduled.
136. Under the language of the regulations and its application by City Defendants, an individual who needs assistance with toileting/diaper changing at unpredictable times to avoid the development of bed sores would be authorized for split-shift care while a person needing assistance with turning and positioning every two hours during the night would not be authorized for split-shift care because his needs are predictable.
137. Under the language of the regulations and its application by City Defendants, a person needing assistance with toileting six times per night would be theoretically entitled to split-shift care, while a person who cannot move his body and requires re-positioning six
31

times per night to avoid the development or exacerbation of bedsores would not be entitled to split-shift care because “toileting” assistance appears in the definition while assistance with “turning and positioning” does not.
138. Similarly, under the regulatory definition for split-shift care, the defendants will provide split-shift care to a person deemed to need “total assistance” with toileting, but deny splitshift services to a person deemed to need “some assistance” with toileting because she can theoretically get to a toilet or commode, albeit only with assistance. Thus, applying the regulatory modification, Defendants will provide nighttime assistance with toileting to those very few individuals deemed to need “total assistance” with toileting, while the person who needs physical assistance to get to the toilet or commode would be forced to lie in her own waste during the nighttime hours because she is deemed to need only “some assistance” with toileting.
139. The regulatory language is used to provide awake, nighttime care to some individuals needing intensive nighttime assistance to maintain their health and safety in the home, while denying those Medicaid services to other recipients with the same need for such intensive nighttime assistance.
140. The regulatory language is irrational, fails to insure that medically necessary services are provided to eligible individuals, and fails to ensure that the amount duration and scope of any services available to any Medicaid recipient be the same as that made available to other Medicaid recipients.
141. Consequently, the continuous care regulation, 18 N.Y.C.R.R. § 505.14(a)(3), on its face and as applied, denies medically necessary home care services to some individuals with the need for such assistance many times during the nighttime hours, while denying such
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services to others with the same medical need for nighttime assistance, in violation of Plaintiff’s rights under 42 U.S.C. § 1396a(a)(10)(B); 42 U.S.C. § 1396a(a)(17); 42 C.F.R. §§ 440.240(a), (b)(1) and 440.230(b),(c), U.S. Const. Amend. XIV §1, and U.S. Const. Art. VI, §2.
FIFTH CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS FOR VIOLATIONS OF THE MEDICAID ACT
142. Defendant’s policy and practice of arbitrarily and irrationally reducing plaintiffs’ home care services when there has been no significant change in the recipient’s condition or circumstances has created a situation where some categorically needy Medicaid recipients receive the medically necessary home care they need, while others do not.
143. Defendant’s policy and practice of arbitrarily and irrationally reducing plaintiffs’ home care services when there has been no significant change in the recipient’s condition or circumstances has created a situation whereby some medically needy home care recipients receive the services that are medically necessary even though other individuals who are categorically needy do not.
144. Defendant’s policy and practice of arbitrarily and irrationally reducing plaintiffs’ splitshift home care services when there has been no significant change in the recipient’s condition or circumstances violates the “comparability of services” requirements of the Medicaid Act which require that the amount, scope and duration of any services available to any Medicaid recipients be equal to that made available to other recipients. By engaging in this policy and practice, defendants violate plaintiffs rights under 42 U.S.C. §
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1396a(a)(10)(B), 42 U.S.C. § 1983, and the Supremacy Clause of the U.S. Constitution., Art. IV.
THEREFORE, it is respectfully requested that this Court make and enter judgment: 145. Declaring that defendants’ practices and procedures result in arbitrary and irrational
reductions of home care services in violation of the Medicaid Act, the ADA, Section 504 and due process rights; that defendants are failing to provide services to Named Plaintiffs in violation of the anti-discrimination provisions and integration mandates of the ADA and Section 504; that defendants’ regulation defining split-shift care is invalid because it is unreasonable and fails to provide Medicaid personal care recipients with personal care services equal in amount, scope, and duration to that provided to other Medicaid recipients and that are sufficient to reasonably achieve the Medicaid Act’s purpose of providing medically necessary covered services; 146. Enjoining all defendants, separately and together, to adopt and implement rules and procedures so as to take steps and/or ensure that named plaintiffs and members of the class will not be arbitrarily and irrationally denied necessary home care services and required to be institutionalized when community-based alternatives are available and more appropriate for the recipient; 147. Enjoining all defendants, separately and together, from reducing plaintiffs’ home care services without clearly identifying a reason for the decision pursuant to the regulations set out in 18 N.Y.C.R.R. § 505.14 and Due Process and including that reason in the notice to home care recipients;
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148. Awarding reasonable attorney’s fees, as provided by 42 U.S.C. § 1988(b); 42 U.S.C. 12102(2); 29 U.S.C. 794; 705(20);
149. Awarding costs and disbursements; and 150. Granting such other and further relief as this Court deems just and proper.

Dated: April 23, 2012 New York, New York

_______________________________ TOBY GOLICK [TG 5365] LESLIE SALZMAN CARDOZO BET TZEDEK LEGAL SERVICES 55 Fifth Ave., 11th Floor New York, New York 10003 (212) 790-0240
YISROEL SCHULMAN BEN TAYLOR NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square, 18th Floor New York, NY 10004 212-613-5000
DONNA DOUGHERTY JASA/LEGAL SERVICES FOR THE ELDERLY IN QUEENS 97-77 Queens Blvd, Suite 600 Rego Park, New York 11374 (718) 275-5352
Attorneys for Plaintiffs

TO: ELIZABETH BERLIN, Executive Deputy Commissioner New York Office of Temporary and Disability Assistance 40 North Pearl Street Albany, New York 12243
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ROBERT DOAR, Administrator New York City Human Resources Administration 180 Water Street, 25th Floor New York, New York 10038 NIRAV SHAH, M.D., Commissioner New York State Department of Health Corning Tower Empire State Plaza, Albany, NY 12237
36

 
 Case 1:12-cv-03216-SAS Document 61 Filed 09/04/12 Page 1 of 50

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- }(
CHARLES STROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all persons similarly situated,

'. lJSDCSDNY
. DOCUMENT . BLECrRONICAlLY Fn.BD
DDAOTCE#F:1-iE-D:-.Cf-7"""~~II~--
OPINION AND ORDER 12 Civ. 3216 (SAS)

Plaintiffs,

- against-

NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources Administration/Department of Social Services,

Defendants.

----------------------------------------------------- }(
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

On behalf of themselves and a putative class, Charles Strouchler, Sara

Campos, and Audrey Rokaw have brought this lawsuit against the Commissioner

of the New York State Department of Health, in his official capacity ("DOH" or

1

Case 1:12-cv-03216-SAS Document 61 Filed 09/04/12 Page 2 of 50
“the State”) and the Administrator of the New York City Human Resources
Administration, in his official capacity (“HRA” or “the City”). Plaintiffs are
elderly and disabled recipients of 24-hour continuous home care services,
administered by the State through its agent the City using Medicaid dollars. They
now seek a preliminary injunction (and eventually a permanent injunction)
preventing defendants from reducing or terminating these services without
adequate notice and legitimate reasons that comply with federal and state law and the federal Constitution.1 They also seek the restoration of services that have been
wrongly reduced or terminated since October 4, 2011. On July 17, 26, and 27 I
held a hearing to evaluate the parties’ evidence. They have submitted both pre-and post-hearing briefs.2
1 On June 12, 2012, after plaintiffs moved for a temporary restraining order, the parties entered into a stipulation that largely preserved the status quo “until the Court hears Plaintiffs’ application for a preliminary injunction.” Stipulation and Order Concerning Temporary Relief ¶ 1 [Docket No. 13].
2 See Plaintiffs’ Memorandum of Law in Support of Motion for a Temporary Restraining Order and Preliminary Injunction (“Pl. Mem.”); State Defendants’ Memorandum of Law in Opposition to Motion for Preliminary Injunction (“State Mem.”); City Defendant’s Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction (“City Mem.”); Plaintiffs’ Reply Memorandum of Law in Response to State and City Defendants’ Oppositions to Motion for Preliminary Injunction (“Pl. Rep. Mem.”); Plaintiffs’ Proposed Findings of Fact and Conclusions of Law (“Pl. Findings”); City Defendant’s Proposed Findings of Fact and Conclusions of Law (“City Findings”). The hearing began on July 17, 2012 (“7/17/12 Hearing Tr.”) and continued on July 26 and 27 (“Hearing Tr.”).
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Case 1:12-cv-03216-SAS Document 61 Filed 09/04/12 Page 3 of 50
New York State, like many states whose tax revenues were severely reduced by recent economic circumstances, has faced a significant budget crunch in recent years. Simultaneously, medical care is consuming an ever-larger portion of the state’s budget and it is understandable that state and local governments are exploring ways to reduce costs. Indeed, reforming our health care system has been a dominant topic of the nation’s political discourse in recent years.
While these goals may be laudable, the evidence here establishes a substantial likelihood that defendants’ actions have violated federal law and the Constitution’s guarantee of due process. Any change in the provision of health care must result from the legislative and regulatory process. But administrators – even when faced with major budget crises – may not deprive citizens of the care to which they are legally entitled. Because plaintiffs have established a substantial likelihood of success on the merits and of imminent irreparable harm, their motion for a preliminary injunction is granted, although its scope is narrower than what they seek. II. FINDINGS OF FACT
A. The Medicaid Program in New York City As the Second Circuit recently explained, Medicaid is a cooperative federal-state program through which the Federal Government provides financial assistance to States so that 3

Case 1:12-cv-03216-SAS Document 61 Filed 09/04/12 Page 4 of 50
they may furnish medical care to needy individuals. The federal and state governments share the cost of Medicaid, but each state government administers its own Medicaid plan. State Medicaid plans must, however, comply with applicable federal law and regulations.
Any state that participates in Medicaid must designate “a single State agency” . . . to administer – or to supervise the administration of – the state’s Medicaid plan. See 42 U.S.C. § 1396a(a)(5). Although the State agency may delegate to local entities the performance of certain responsibilities, see 42 C.F.R. § 431.10(e), the State agency must (1) “[h]ave methods to keep itself currently informed of the adherence of local [entities] to the State plan provisions and the agency’s procedures for determining eligibility,” and (2) “[t]ake corrective action to ensure their adherence,” 42 C.F.R. § 435.903 (some quotations and citations omitted).3
In New York State, DOH is the state agency responsible for the implementation of the State’s Medicaid plan.4 The City HRA administers the
Medicaid program in New York City as the local agent of the State. As part of that
program, plaintiffs and others receive help with personal hygiene, dressing,
feeding, walking, and other activities of daily life, and are therefore able to
continue living in their homes rather than in hospitals or other institutions. This
assistance, known as “personal care services,” is governed by federal and state
3 Shakhnes v. Berlin, — F.3d —, 2012 WL 3264099, at *1 (2d Cir. Aug. 13, 2012).
4 See N.Y. Soc. Servs. L. § 363 et seq. 4

Case 1:12-cv-03216-SAS Document 61 Filed 09/04/12 Page 5 of 50
regulations.5 The State offers various types of personal care services, depending on
a patient’s need. The most expansive (and expensive) type is known as “split-shift care,” because it involves multiple care givers each working a separate shift so that a patient can have up to 24 hours per day of care. The next type is known as “livein” or “sleep-in” care, whereby one attendant lives with the patient full time and is able to sleep during the night without waking up to provide care except on rare occasions.6
In order to obtain personal care services, Medicaid recipients apply to the City, which conducts an assessment and determines the level of care that it believes is medically necessary.7 Before split-shift care is authorized, the initial determination must be reviewed and approved by an independent physician called a “local medical director” or “LMD.”8 Authorizations of personal care services are reviewed either once or twice per year. Before reducing or terminating care,
5 See 42 C.F.R. § 440.167; 18 N.Y.C.R.R. § 505.14. 6 See 18 N.Y.C.R.R. § 505.14(a)(3) and (a)(5). New York Labor Law requires that live-in employees be provided the opportunity for eight hours of sleep per night, with five hours of uninterrupted sleep. See Pl. Mem. at 4 (citing the New York State Department of Labor’s 3/11/10 Opinion Letter). 7 See State Mem. at 3-4; 18 N.Y.C.R.R. § 505.14(a)(3) and (b). 8 See State Mem. at 4.
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defendants must provide notice to the recipient detailing their reasons for doing so, must provide the recipient the opportunity for an administrative hearing to challenge the change in services, and must refrain from making the changes pending the outcome of that hearing.9
B. Recent Developments In 2011, the United States intervened on behalf of a City employee
who had brought a false claims action alleging that “the City has maintained a policy . . . of reauthorizing split-shift services without any LMD determination,” in violation of State regulations.10 As part of the settlement terminating the lawsuit, the City committed “to obtain independent medical reviews in connection with reauthorizing 24-hour split-shift care.”11 Also in 2011, the State made certain amendments to its regulations governing personal care services although, according to subsequent clarifications by the State, the relevant changes to the regulations were only semantic, not substantive.
9 See 42 C.F.R § 431.205(d); 18 N.Y.C.R.R. § 505.14(b)(5)(v)(c); Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996).
10 First Amended Complaint-in-Intervention of Plaintiff-Intervenor the United States of America ¶ 48, United States ex rel. Feldman v. City of New York (“Feldman”), No. 09 Civ. 8381 (S.D.N.Y.), Ex. A to Declaration of Robert L. Kraft, Assistant Attorney General, in Support of State Mem. (“Kraft Decl.”).
11 Feldman Stipulation of Settlement and Dismissal ¶ 3(c), Ex. B to Kraft Decl.
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Case 1:12-cv-03216-SAS Document 61 Filed 09/04/12 Page 7 of 50
Beginning around April or May of 2011, the City began an initiative
“to review all split-shift cases . . . that were being reauthorized.”12 This initiative
was part of an effort by the City to “reduce or transfer split-shift cases” and to
revisit all previous decisions in light of the Feldman settlement.13 Plaintiffs argue
that these actions were taken in order to reduce the cost of the program.14 The City
12 Hearing Tr. at 213:12-17 (testimony of Dr. Anita Aisner, the medical director of home care at the New York County Health Services Review Organization, who supervises the City’s LMDs and is responsible for all final determinations regarding the provision of personal care services to New York City Medicaid recipients).
13 See id. at 270:4-271:14.
14 See 6/27/11 Letter from Robert Doar, the Commissioner of the New York City Human Resources Administration, to Mark Kissinger, Deputy Commissioner of the New York State Department of Health (“Doar Letter”), Plaintiffs’ Hearing Exhibit (“PX”) 1 at 2. Plaintiffs have pointed to the Doar letter as evidence that, for financial reasons, there has been a concerted effort by the defendants to reduce the number of patients on split-shift care. The stated purpose of the letter was to discuss “HRA’s successes in making the Personal Care program more cost-effective” and to propose other cost-saving policy changes. Id. at 1. In it, Doar explains that because split-shift services cost $150,000 per patient per year, HRA had “suggested eliminating PCS split-shift services,” which “would cause the 1274 current PCS split-shift recipients to transfer to other less expensive long term care services” – namely, nursing home care, managed long term care, and sleep-in care. Id. However, Doar noted that the State had not taken the action, recommended by the City, to eliminate the program and that “[w]ithout such [State] administrative action, our efforts to reduce or transfer split-shift cases to other long term care programs would likely fall victim to the vagaries of the Fair Hearing system.” Id. at 2. Doar then explained that the City had a “dismal fair hearing record” – losing sixteen of the seventeen cases in which it sought to reduce or terminate split-shift care in the first four months of the year.
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has responded by arguing that, because of the structure of the Medicaid program under New York law, it would not benefit financially from a reduction in the number of split-shift recipients.15
Between January 1, 2010 and May 1, 2011, the number of patients on split-shift care fell from 1,356 to 1,274. From August 2011 through April 2012, the number of recipients fell from 1,135 to 945. As plaintiffs point out, “during this more recent period, [the City] reduced its split-shift census twice the amount in half the time.”16 Between August 1, 2011 and June 15, 2012, 270 recipients of split-shift care appealed the decision by the City to reduce or terminate their care. After conducting fair hearings, the State’s Administrative Law Judges (“ALJs”) reversed 262 of these decisions.17 That is, the City’s decisions were reversed by the State over ninety-seven percent of the time.
15 For cost-sharing reasons, the State’s treasury (but not the City’s) would realize all savings that result from reducing the number of patients on splitshift care. See Hearing Tr. at 281:13-286:1. Plaintiffs cite to evidence showing that the State has put significant pressure on the City to reduce the cost of the program, but I need not consider the accuracy or probative value of this evidence because defendants’ intentions are irrelevant to the outcome of the pending motion. See Pl. Findings ¶ 12.
16 Pl. Findings ¶15(j). 17 See Declaration of Shmuel Bushwick in Support of Plaintiffs’ Motion for a Preliminary Injunction (“Bushwick Decl.”) ¶¶ 2-4 (describing statistics compiled from the State’s website http://otda.ny.gov/oah/FHArchive.asp.)
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C. Regulations and Interpretations of Regulations Challenged by Plaintiffs Many of the City’s termination or reduction notices rely on one or
more of the following reasons, which plaintiffs challenge as improper under state regulations and/or federal law:
1. “Some” Versus “Total” Assistance Since 1987, New York State’s Medicaid regulations have distinguished between a patient’s need for “some assistance” with the activities of daily living and a patient’s need for “total assistance” with those activities. The distinction is crucial because only those patients who require “total assistance” are entitled to split-shift care. The regulations define the terms as follows: (i) Some assistance shall mean that a specific function or task is performed and completed by the patient with help from another individual. (ii) Total assistance shall mean that a specific function or task is performed and completed for the patient.18 The distinction is between those tasks that are completed by the patient with help and those that are completed for the patient. “[I]n the wake of the Feldman case,” the administrative leadership at the HRA placed a new “focus” on
18 18 N.Y.C.R.R. § 505.14(a)(2). 9

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these definitions to ensure that all split-shift recipients fit within the regulations.19 Instead of ensuring proper implementation of the regulation, however, the City’s renewed focus led it to adopt a strained interpretation of “total” and “some” assistance that conflicts with the plain language of the regulation.
According to Anita Aisner, its chief medical director, the City’s new understanding of the regulation was this: “some assistance is when the task is completed with the assistance of the patient so that the patient at least minimally assists with the task.”20
Rather than focusing on who is the primary person performing the task – i.e, whether the task is performed by the patient or for the patient – the City has decided that if a patient can lend even minimal assistance in the performance of the task, she requires only “some assistance” with it. This interpretation resulted in certain unsupportable decisions. Most notably, according to Aisner, an incontinent patient who requires a diaper change needs only “some assistance” with that change if she is able to “help keep [her] body [on its side] by holding onto the side of the bed” so as to make it easier for the home attendant to change the diaper.21
19 Deposition of Michael Eisner, (former) Deputy Commissioner of the Home Care Services Program at HRA (“Eisner Dep.”) at 188:20-25.
20 Hearing Tr. at 84:6-9 (emphasis added). Accord Eisner Dep. at 186. 21 Hearing Tr. at 87:11-17.
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But such a scenario cannot possibly fit the definition of “some assistance,” which
requires that “a specific function or task is performed and completed by the patient
with help from another individual.” A patient is not changing her own diaper, with
help, when she grabs hold of a bar on the side of a bed. Rather, the task is being
“performed and completed for the patient.”
On approximately twenty-six occasions since last fall, the State’s
ALJs have reversed the City’s determination that an individual only needs “some” assistance and is thus not eligible for split-shift care.22 In one illustrative case, the
ALJ rejected the City’s conclusion that an individual needed only “some”
assistance with using the toilet:
[The City’s conclusion is] not supported by the record at all . . . . Appellant has only partial limbs; no hands and no fingers . . . and she cannot assist in toileting because she cannot ambulate her body at all . . . This Appellant cannot even hold a spoon, nor sit up, nor even turn her head . . . [She is] unable to even turn her body even an inch.23

22 See Summary Chart, PX 12. Plaintiffs reviewed all 270 fair hearing decisions and categorized the ALJs’ reasons for reversing the City’s decisions. In many cases, the ALJ had numerous reasons for reversal. Due to time constraints, the City was able to review only sixty-one of plaintiffs’ categorizations. The City disagreed with sixteen of them. I find that the disagreements are marginal, not significant. Although the City may be correct that a few cases should be moved from one category to another, there is no dispute that ALJs have been consistently reversing the City for making unlawful reductions or terminations.

23
7)).

Pl. Findings ¶ 20(d)(ii) (citing to fair hearing 6041059J (PX 13D at

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Despite this individual’s severe disability, the City made a determination that she could “perform the task” of using the toilet.24 As the ALJ put it in that opinion, “Partial Assistance by definition means the patient does most of the task,”25 and that was surely not the case here.
2. Care at Times that Cannot Be Predicted Prior to October 4, 2011, split-shift services were available for a patient only if he or she “requires total assistance . . . at unscheduled times during the day and night.”26 After that date, the services were available only if the patient “requires total assistance . . . at times that cannot be predicted.”27 On April 9, 2012, the State issued an administrative directive clarifying that the new language “is not a substantive change from past practice.”28 This position was reiterated by the State in written testimony.29
24 According to the ALJ’s opinion, the City determined that the “client requires partial assistance with toileting 2-3x/night,” but the conclusion was “not supported by the record at all.” Id.
25 PX 13D at 7. 26 18 N.Y.C.R.R. § 505.14(a)(3) (emphasis added). 27 Id. (emphasis added). 28 12 OHIP-ADM 1, Ex. K to Affidavit of Margaret Willard (“Willard Aff.”) at 4. 29 See Willard Aff. ¶ 54.
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Although Aisner testified on behalf of the City that it never treated the change as substantive,30 the City began to rely on the “predictability” of a person’s nighttime needs to eliminate split-shift care and began to reduce care for dozens of patients because their need for care was predictable.31 The City’s interpretation of the regulation led to the following distinction. If a patient could verbally express her need for a diaper change during the night, she would be eligible for care because her need for the care was not predictable. However, if a patient could not call to his attendant when he needed a diaper change – for example, because he had dementia – then he would be ineligible for care. His diaper changes would be regularly scheduled, rather than as-needed, and therefore under the City’s interpretation he would not be covered by the regulation.32
In August 2011, a doctor for the City determined that Plaintiff
30 See Hearing Tr. at 215:10-216:9. 31 Most notably, between February 1, 2012 and March 23, 2012, one City case worker sent forty-one identical reduction notices informing patients that “You can be more appropriately and cost-effectively served through sleep-in services because your nighttime needs including toileting and transfer are infrequent and predictable.” See Pl. Findings ¶ 24(c) (citing to PX 9). 32 See fair hearing decisions 6032627Y, 5914927Y, and 6023218K, reversing City’s decision on this ground, Pl. Findings ¶ 25(d) (citing to PX 13B). While I understand why such a distinction may make sense as a policy matter, both through ALJ decisions and its statements in this litigation, the State has rejected the City’s interpretation.
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Strouchler’s need for catheterization two to three times a night and need to be turned every two hours were “unschedulable” and therefore merited split-shift care; but six months later, the same doctor denied reauthorization of Strouchler’s care because those needs were predictable and could be scheduled. He determined that “a mistake occurred in the prior authorization.”33 His decision was reversed by an ALJ.
The State’s witness confirmed that according to the State’s understanding of the regulations, a person who needs regular care (such as diaper changes or repositioning) every two hours throughout the night would be eligible for split-shift care, even though the timing of the care was “predictable.”34 On approximately fifty-six occasions, ALJs reversed the City’s decision to eliminate care as a result of this issue.35
3. Turning and Positioning Under the regulations, split-shift care is available for patients who need help with “toileting, walking, transferring or feeding.”36 According to the
33 Pl. Findings ¶ 24. 34 See 7/17/12 Hearing Tr. at 39:15-40:17. 35 Pl. Summary Chart. 36 18 N.Y.C.R.R. § 505.14(a)(3).
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State, a bed-bound patient’s need to be repositioned every two hours in order to avoid bedsores has always been included in the term “transferring.”37 In 2003, the
City’s medical training manual conformed with the State’s position and indicated
that an individual who needed turning every two hours to avoid bedsores might require split-shift care.38 However, the City’s current position is that a need for
such care does not qualify a patient for split-shift care because turning and positioning is not a component of transferring.39 In approximately thirty-seven fair hearings, ALJs have reversed the City’s determination on this issue.40
Notably, Dr. Cameron Hernandez, plaintiffs’ expert witness, testified
that according to general medical terminology, “transferring” refers to moving
37 See 7/17/12 Hearing Tr. at 31:17-33:2; Willard Aff. ¶¶ 61-66. According to Willard, when the regulations were promulgated between 1985 and 1987, the State considered explicitly including turning and positioning as a covered activity but decided not to. 7/17/12 Hearing Tr. at 40:24-41:10. The State has never issued instructions stating that turning and positioning are included within the term “transferring.” Id. at 54:7-54:14. See also State Mem. at 17 (reiterating its interpretation).
38 See Physician Training Manual, Ex. 1 to Deposition of Anita Aisner (“Aisner Dep.”), at 27 (“Where there are excessive [night time] activities which make sleep-in service inappropriate such as the client’s frequent needs for positioning or [night time] changes due to frequent incontinent episodes, this will, of course, require Split-Shift.”).
39 See Hearing Tr. at 224:7-12; Aisner Dep. at 73-79. 40 See Pl. Summary Chart.
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from one location to another and is distinct from turning and repositioning in bed.41 Thus, although he made very clear that he believes turning and positioning is medically essential for bed-bound patients, his testimony supports the City’s position that turning and positioning is not covered by the regulatory language that refers only to “transferring.”42
4. Changes in a Patient’s Condition State regulations require the City to “deny or discontinue personal care services when such services are not medically necessary or are no longer medically necessary,” as a result of, among other things, a change in the patient’s medical condition.43 In approximately seventy-nine cases, ALJs have determined that the City improperly relied on a purported change in medical condition to justify reducing or terminating split-shift care.44 In one illustrative example, the ALJ held that the undisputed record discloses that the frequency of the Appellant’s toileting (3-4x/night) was known during the last authorization and that the only thing that has changed is that the Agency now speculates (without any basis in the record) that the
41 Hearing Tr. at 148:15-18. 42 Id. at 134:17-140:12. 43 18 N.Y.C.R.R. § 505.14. 44 See Pl. Summary Chart.
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Appellant’s toileting can now be addressed on a scheduled basis.45 5. Mistakes In 1996, in a related action over the same program, I enjoined defendants from terminating home care services for arbitrary reasons, without notice, or without the opportunity for continued aid pending the outcome of a fair hearing appeal.46 Defendants were worried that too restrictive an injunction would prevent them from rectifying any mistakes that they had made in a previous authorization, and so I explicitly permitted them to reduce services in such instances.47 It appears, however, that the City has expanded what was meant to be a narrow exception into a mechanism for simply reducing services arbitrarily. In approximately sixty-five cases, ALJs have reversed the City’s determination that a previous authorization was a “mistake.”48 The following is one illustrative ALJ explanation: [While the City’s doctor] contended that ‘it is clear a mistake has occurred’ the evidence establishes that this was a conclusory statement bereft of evidence in order to try to come under the technicality provided by [Mayer] . . . What the evidence
45 Pl. Findings ¶ 34 (citing fair hearing 6023201P (PX 13 C at 30)). 46 See Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996). 47 See id. at 912. 48 See Pl. Summary Chart.
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establishes is that the [City’s doctor] was making a new determination but labeling it as a correction of a mistake.49 C. The Named Plaintiffs50 Charles Strouchler is a 67-year old man who has been disabled by the effects of advanced multiple sclerosis. During the night he must be repositioned at least every two hours in order to avoid the onset of bedsores, his limbs must be repositioned when they spasm, his breathing mask must at times be adjusted, and he must be catheterized. For the past fifteen years he has received this help through split-shift care. In February, 2012, the City informed him that it planned to reduce his care because his “nighttime needs which involve turning/positioning and toileting are anticipated and can be scheduled,” and that “therefore a mistake had occurred in your previous authorizations and you do not meet the criteria for continuous care.”51 Strouchler challenged the decision and it was reversed by an ALJ on July 9, 2012.52 Sara Campos is a 91-year old woman who requires total assistance with every activity of daily living, including turning and repositioning at least
49 Fair hearing 5949170Y (PX13E at 9-10). 50 See generally Pl. Mem. at 5-8. 51 Id. at 6. 52 See fair hearing 6028901R, PX 6.
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every two hours per night and day to prevent bedsores and frequent diaper changes to ensure skin integrity. She has received split-shift care for the past several years. On February 10, 2012, she received two notices from the City – one stating that her split-shift care was being reauthorized and the other stating that her care would be reduced because her need for nighttime repositioning and toileting can be scheduled and, as such, does not meet the requirements for split-shift care. Campos challenged the determination and on June 21, 2012, the ALJ reversed the City’s decision and affirmed Campos’ entitlement to split-shift services.53
Audrey Rokaw is a 93-year old woman who requires total assistance with every activity of daily living, including frequent diaper changes. Like Campos, Rokaw received two conflicting notices from the City; one of them stated that her split-shift care was reauthorized and the other one said it would be reduced because “you require [only] partial [as opposed to total] assistance with ambulating, transferring, and toileting” and that her needs do not meet the requirement for split-shift care.54 Like Campos, she appealed the decision, received aid continuing pending the outcome of her fair hearing, and won a
53 See Declaration of Celeste Lewis (“Lewis Decl.”) in Support of City Defendant’s Opposition to Plaintiffs’ Motion for a Preliminary Injunction ¶ 3.
54 Pl. Mem. at 8. 19

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reversal of the City’s decision on May 8, 2012.55 III. LEGAL STANDARD FOR PRELIMINARY INJUNCTION
“When seeking a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the moving party must show: (1) it will suffer irreparable harm absent the injunction and (2) a likelihood of success on the merits.”56 When the proposed injunction commands action rather than prohibits it, the standard is higher: “[W]here the injunction sought will alter rather than maintain the status quo, the movant must show clear or substantial likelihood of success.”57 In addition, “[w]henever a request for a preliminary injunction implicates public interests, a court should give some consideration to the balance of such interests in deciding whether a plaintiff’s threatened irreparable injury and probability of success on the merits warrants injunctive relief” in order to avoid harming the public needlessly if the plaintiff does not ultimately succeed on the merits.58 In order to merit preliminary relief,

55 See Lewis Decl. ¶ 4.

56 Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (quotation marks omitted).

57

Id.

58
1997).

Time Warner Cable v. Bloomberg L.P., 118 F.3d 917, 929 (2d Cir.

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the threat of irreparable harm must be imminent.59
IV. APPLICABLE LAW
A. Procedural Due Process
The Fourteenth Amendment prohibits the state from depriving a
person of life, liberty or property without due process of law. There is no dispute
that plaintiffs’ Medicaid benefits are a protectable “property interest” under the
Fourteenth Amendment. There is also no dispute that federal law requires
defendants to provide notice and the opportunity for a pre-deprivation hearing if they wish to terminate or reduce a patient’s home care services.60
B. Substantive Due Process
As the Supreme Court has explained,
Our prior cases have held the provision that ‘no State shall . . . deprive any person of life, liberty, or property, without due process of law,’ to guarantee more than fair process and to cover a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them.
59 See Rodriguez, 175 F.3d at 235, holding that: “[T]he harm must be so imminent as to be irreparable if a court waits until the end of trial to resolve the harm. See 11A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2948.1, at 144-49 (2d ed. 1995) (‘Only when the threatened harm would impair the court’s ability to grant an effective remedy is there really a need for preliminary relief. Therefore, if a trial on the merits can be conducted before the injury would occur there is no need for interlocutory relief.’).”
60 See 42 C.F.R § 431.205(d); Mayer, 922 F. Supp. at 912-13. 21

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We have emphasized time and again that the touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness . . . or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective. . . .
[However,] only the most egregious official conduct can be said to be ‘arbitrary’ in the constitutional sense . . . . To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience.61
Substantive due process “requires that government officials refrain
from acting in an irrational, arbitrary or capricious manner.”62 Specifically,
“decisions regarding entitlements to government benefits [must] be made
according to ascertainable standards that are applied in a rational and consistent
manner.”63
B. The Medicaid Act
61 County of Sacramento v. Lewis, 523 U.S. 833, 840-46 (1998) (quotations and citations omitted).
62 Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985). Accord Mayer, 922 F. Supp. at 911 (“Capricious action in a legal sense is established when an administrative agency on identical facts decides differently.”) (quotation and citation omitted).
63 Mayer, 922 F. Supp. at 911. Accord Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968) (Housing Authority may not arbitrarily decide, with neither standards nor a “fair and orderly procedure,” which prospective tenants to admit from public housing waiting list).
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The Medicaid Act requires that states use “reasonable standards (which shall be comparable for all groups) . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives” of the program.64 In addition, the federal regulations implementing the Act require that each covered service “be sufficient in amount, duration, and scope to reasonably achieve its purpose.”65
Relatedly, under the Medicaid Act’s “comparability provision,” states must provide recipients with benefits that are equal in amount, duration, and scope to the benefits that are provided to other recipients with the same medical needs.66 The “only proper application [of this provision] is in situations where the same benefit is funded for some recipients but not others.”67 According to the regulations, a state may “place appropriate limits on a service based on such
64 42 U.S.C. § 1396a(a)(17). 65 42 C.F.R. § 440.230(b). 66 See 42 U.S.C. § 1396a(a)(10)(B)(i) and (ii). 67 Rodriguez, 197 F.3d at 616. See V.L. v. Wagner, 669 F. Supp. 2d 1106, 1115 (N.D. Cal. 2009) (the provision requires that a state’s method of determining eligibility must “reasonably measure[] the individual need of a disabled or elderly person for a particular service”); Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 993 (N.D. Cal. 2010) (a state’s approach may not “result in some persons receiving [] services while others will not – notwithstanding that both are in critical need of such services”).
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criteria as medical necessity.”68 However, a state may not “arbitrarily deny or reduce the amount, duration, or scope of a required service . . . to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.”69
C. The Americans with Disabilities Act (ADA) The ADA and its regulations prohibit discrimination against disabled
people, including criteria that “tend to screen out” people with disabilities in a manner that prevents them from “fully and equally enjoying any service program, or activity unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”70 Part of this requirement involves providing services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities,”71 which in turn is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”72 States must make modifications to their services, programs, and activities in order to avoid discrimination unless those modifications
68 42 C.F.R. § 440.230(c)(2). 69 Id. § 440.230(c)(1). 70 28 C.F.R. § 35.130(b)(8). See 42 U.S.C. § 12132. 71 28 C.F.R. § 35.130(d). 72 Id., Part 35, App. B (2011).
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“would fundamentally alter the nature of the service, program, or activity.”73 The Supreme Court has explained that “[i]n evaluating a State’s
fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with [] disabilities, and the State’s obligation to mete out those services equitably.”74 V. DISCUSSION
A. Evidence Regarding Putative Class Members As an initial matter, I must decide whether it is appropriate to consider
evidence regarding the putative class members when adjudicating plaintiffs’ motion for a preliminary injunction. Because no class has yet been certified, defendants argue that “only the [named plaintiffs’] claims are relevant to the determination of whether they are likely to succeed on the merits.”75 It is true that named plaintiffs must have standing to assert claims on behalf of the class and that, in order to satisfy the typicality prong of Rule 23(a), named plaintiffs must assert
73 Id. § 35.130(b)(7). 74 Olmstead v. L. C., 527 U.S. 581, 597 (1999). 75 City Mem. at 10.
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that they have suffered the same injuries as class members.76 But that does not mean that I should ignore the alleged harm to putative class members or the likelihood that their injuries will enable the plaintiffs to succeed on the merits.
It is well established that “[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class” and that the “court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.”77 Less frequently discussed, however, is whether a court may rely primarily on likely harm to the putative class members – rather than harm to the named plaintiffs – at the preliminary injunction stage.
In 2003, Judge Michael Telesca of the Western District of New York granted a preliminary injunction in part on the basis of six affidavits from putative class members showing that they would suffer irreparable harm as a result of an improper reduction in medical insurance coverage.78 The Second Circuit affirmed the injunction, holding that “the district court did not abuse its discretion in relying
76 See Floyd v. City of New York, — F.R.D. —, 2012 WL 1868637, at *9-10, *14-15 (S.D.N.Y. May 16, 2012).
77 Alba Conte & Herbert Newberg, Newberg on Class Actions § 9:45 (4th Ed. 2002).
78 See LaForest v. Honeywell Int’l, Inc., No. 03 Civ. 6248, 2003 WL 23180220, at *2 (W.D.N.Y. Sept. 19, 2003).
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on this evidence in concluding that the then-putative class suffered irreparable
harm warranting a preliminary injunction.”79 The facts of LaForest are not
identical to those here: most notably, Judge Telesca had already granted summary
judgment to the plaintiffs, finding that they were contractually entitled to the health
insurance that defendants were denying them. But the facts are not so distinct
either: in this case, the State’s administrative law judges have reversed the City’s
decisions in over ninety-seven percent of the appeals brought by putative class
members. Like in LaForest, therefore, there is very strong evidence that the City
defendant has attempted to deny medical benefits to putative class members who
are legally entitled to them.80
79 LaForest v. Former Clean Air Holding Co., 376 F.3d 48 (2d Cir. 2004) (“Our conclusion is not affected by defendants’ attack on the evidence on which the district court relied. Defendants note that the district court granted relief on the basis of affidavits submitted by persons who were not named plaintiffs, and, moreover, that the court relied on only six affidavits in a case involving nearly six hundred putative class members . . . . That the six affidavits relied upon by the district court were submitted by unnamed plaintiffs gives us little pause, given that these persons are now members of the certified class. . . . [P]laintiffs should be allowed to adduce evidence of harm representatively, so long as they lay a foundation that the representative plaintiffs are similarly situated with regard to the issue of irreparable harm. Determining whether plaintiffs have laid such a foundation is a case-sensitive inquiry subject to review for abuse of discretion.”).
80 Accord Cota, 688 F. Supp. 2d at 989-90 (considering, prior to certification, the harm to putative class members from reductions in Medicaid services but not discussing the appropriateness of such consideration) and Cota v. Maxwell-Jolly, No. 09 Civ. 3798, 2010 WL 1222148 (N.D. Cal. Mar. 24, 2010) (recounting procedural history).
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According to the Second Circuit’s guidance in LaForest, plaintiffs should be permitted to “adduce evidence of harm representatively” if they can show that they are similarly situated to the putative class members and such evidence will be admissible if the class is subsequently certified. Preliminarily examining plaintiffs’ entitlement to class status is therefore appropriate, both for determining the likelihood of irreparable harm and the appropriate scope of any injunctive relief. Plaintiffs have moved for class certification but the parties’ briefs are not yet fully submitted. Based on the evidence described below, however, it is likely that plaintiffs will be able to meet the Rule 23 prerequisites of numerosity, commonality, typicality, and adequacy.
Given that there are hundreds of recipients of split-shift care, numerosity is satisfied.81 Although the facts of each class member’s diagnoses and evaluations are unique to that individual, the following facts regarding the centralization of the program are likely sufficient to satisfy the commonality requirement.82 All putative class members are recipients of medical care
81 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”) and Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (courts do not require “evidence of exact class size or identity of class members to satisfy the numerosity requirement”).
82 See generally Floyd, 2012 WL 1868637, at *12-14; McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 488 (7th Cir. 2012).
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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”83; Dr. Aisner told her staff, in writing, that “I have continued concerns for those [doctors] who have not forwarded any and/or very few [splitshift] reductions to me for review as instructed,” and that “this is one indicator of your performance”84; over ninety-seven percent of the decisions by the doctors in that department to reduce or terminate putative class members’ benefits have been rejected as improper by ALJs. Given this set of facts, it is highly likely that plaintiffs will be able to establish commonality.
The three named plaintiffs were threatened with reductions for precisely the same common reasons (turning and positioning, some versus total assistance, and mistake) that the City relied upon in reducing the benefits of dozens of other putative class members. As a result, they likely satisfy the typicality prong.85 Plaintiffs are represented by experienced and highly qualified counsel and
83 See Hearing Tr. at 212:9-2:13:10. See also 4/28/11 Email, Ex. 2 to Aisner Dep. (Bates 6732) (“Just a reminder that ALL [split-shift] reductions are to reviewed [sic] with me prior to finalization.”).
84 11/20/11 Email, Ex. 2 to Aisner Dep. (Bates 6720). 85 See Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244–45 (2d Cir. 2007)
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there is no reason to think that the named plaintiffs are inadequate representatives of the class; adequacy is therefore established. Finally, it is likely that plaintiffs claims satisfy Rule 23(b)(2), which requires that plaintiffs establish that defendants “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.”
Because class certification is likely, I will consider the facts relating to putative class members in order to adjudicate this motion. This is done without prejudice to revisiting the class certification question de novo upon submission of briefs by all parties.
B. Plaintiffs Have Demonstrated a Likelihood of Imminent Irreparable Harm A showing of irreparable harm “is the single most important
prerequisite for the issuance of a preliminary injunction.”86 And as the Supreme Court has recently re-affirmed, plaintiffs must “demonstrate that irreparable injury is likely in the absence of an injunction,” not merely that irreparable injury is a

(“Typicality requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events[ ] and each class member makes similar legal arguments to prove the defendant’s liability.” (Quotation marks omitted)).

86
1990).

Reuters, Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.

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possibility.87 The harm must be actual or imminent, not remote or speculative.88 Defendants argue that plaintiffs cannot make a showing of a
likelihood of irreparable harm because the fair hearing process protects plaintiffs from erroneous deprivations of medical care.89 Defendants argue that plaintiffs (1) have received legally sufficient notice of the intent to reduce or terminate their benefits; (2) receive continued aid pending the outcome of their fair hearing if they request it; (3) “cite no law” for the proposition that the “terrifying” threat of a loss of medical services constitutes irreparable harm; and (4) “cite no law for the proposition that a litigant who merely has to invoke his or her right to a pretermination hearing has thereby suffered irreparable harm” simply because complying with the fair hearing process is burdensome.90
Plaintiffs have submitted evidence rebutting the first three of defendants’ four arguments, which I summarize below. But it is important at the outset of the irreparable harm analysis to recognize precisely what the City is arguing: in short, it claims that – despite a ninety-seven percent reversal rate on

87 Winter v. Natural Resource Def. Council, Inc., 555 U.S. 7, 22 (2008).

88 See Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989).

89 See City Mem. at 5-9.

90

Id.

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appeal – the existence of a well-functioning appeals process eliminates any harm. But even assuming that defendants are providing adequate notice and a fair predeprivation hearing, the Constitution’s guarantee of substantive due process prohibits “certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’”91 Procedural due process does not cure arbitrary government action. However, because “only the most egregious official conduct can be said to be arbitrary in the constitutional sense”92 and because prudence demands that courts avoid reaching difficult constitutional issues unless necessary, it is sufficient to document the ways in which defendants have not provided an adequate pre-deprivation process.
First, plaintiffs present significant evidence that many putative class members have not received legally sufficient notice. “‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to
91 Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
92 Lewis, 523 U.S. at 846. 32

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present their objections.’”93 Plaintiffs’ evidence shows that on at least four occasions, the City “sent split-shift recipients two notices issued on the same date, one reauthorizing and the other reducing or discontinuing their split-shift services for the same reauthorization period.”94 In other instances, the City has sent two notices on the same day or in close proximity to one another – one retroactively reauthorizing split-shift care and the other prospectively reducing split-shift care.95 The City knew that such notices would be confusing, but nevertheless felt obliged to send them because there was a backlog of cases that required reauthorization.96 In addition, the City has issued a Spanish notice to an English-speaking recipient, an illegible notice, and a notice that was never received and perhaps never mailed.97 Finally, in many instances, the City has sent boilerplate notices to recipients stating that their benefits will be reduced because a mistake has occurred
93 Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13 (1978) (quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950)).
94 Pl. Findings ¶ 37 (citing to notices of E.M., O.T., A.S. (PX 10C) and to fair hearing number 5917045J (PX 13D)).
95 See id. ¶ 38 (citing to Eisner Dep. at 174:15-24 for proposition that such notices were sent multiple times; Hearing Tr. at 115-117 for discussion of confusing notices sent to F.D.; PX 10C for confusing notices sent to C.R.).
96 See Eisner Dep. at 175-177. 97 See Pl. Findings ¶ 41 (citing to fair hearing decisions recounting these deficiencies in notice).
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but failing to identify the alleged mistake.98
All of the above notices are legally insufficient under the traditional
Mullane standard because they are not “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.”99 As a practical matter, these
improper notices increase the probability that a recipient will erroneously lose her
benefits despite the availability of a fair hearing because they are not reasonably
calculated to inform her of her right to a hearing.100 In addition, the failure to
provide sufficient notice violates the Medicaid statute and regulations.101 Finally,
98 See id. ¶ 38. 99 Mullane, 339 U.S. at 314. 100 See Mayer, 922 F. Supp. at 910. 101 See 42 U.S.C. § 1396a(a)3 (“A State plan for medical assistance must . . . provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied”); 42 C.F.R § 431.205(d) (“The hearing system must meet the due process standards set forth in Goldberg v. Kelly”); Fishman v. Daines, 743 F. Supp. 2d 127, 144 (E.D.N.Y. 2010) (Bianco, J.) (“In sum, the Court concludes that . . . § 1396a(a)(3) creates a right to a fair hearing before Medicaid recipients have their aid revoked.”).
The boilerplate language regarding a previous “mistake” is insufficient to meet the Goldberg holding that “principles [of due process] require that a recipient have timely and adequate notice detailing the reasons for a proposed termination.” Goldberg, 397 U.S. at 267-68 (emphasis added). Accord Pashby v. Cansler, 279 F.R.D. 347, 355 (E.D.N.C. 2011) (“Defendant’s notice to all Plaintiffs contained verbatim language that failed to provide detailed reasons for
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the failure to provide constitutionally sufficient notice is itself irreparable harm;
indeed, even the allegation of a deprivation of constitutional rights triggers a
finding of irreparable harm for preliminary injunctive purposes.102 In short,
defendants’ first argument – that putative class members are receiving adequate
notice – is not persuasive.
Second, plaintiffs have produced evidence showing that at least three
putative class members have not continued to receive aid pending their fair
hearing.103 As a result, these disabled elderly people have not been turned and
the proposed termination. As the termination of in-home [personal care services] could be quantified as a ‘brutal need,’ Defendant is likely required to go to greater lengths to provide more detailed notice regarding the reasons for the termination of an individual’s benefits.”); Unthaksinkun v. Porter, No. 11 Civ. 588, 2011 WL 4502050, at *21 (W.D. Wash. Sept. 28, 2011) (“a constitutionally sufficient notice must explain the reason for an agency’s action in enough detail that the recipient can prepare a meaningful appeal”); Rodriguez v. Chen, 985 F. Supp. 1189 (D. Ariz. 1996).
102 “The district court therefore properly relied on the presumption of irreparable injury that flows from a violation of constitutional rights. In any event, it is the alleged violation of a constitutional right that triggers a finding of irreparable harm.” Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (emphasis in original) (citing Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (quotation marks and citation omitted))).
103 Tomasa Pouvillegas is a 77-year-old disabled Manhattan resident who is bedbound and incontinent. See Declaration of Tomasa Pouvillegas ¶¶ 1-16 (PX 16). In February, the City sent a notice that it intended to reduce her from splitshift to sleep-in care; she timely requested a fair hearing to challenge the reduction
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repositioned as required by their doctors’ orders and have spent nights lying in
soiled diapers, and one did not drink a sufficient amount of water in an attempt to
avoid wetting her diapers. This puts them at risk of developing bedsores and
infections.104 This loss of medical care, in contravention of federal law, constitutes
but, nevertheless, for two weeks her services were reduced. During those weeks, when she did not have full-time care at night, she did not drink as much water as recommended by her doctor because she was worried she would have to lie in a wet diaper. She was also uncomfortable throughout the night because she could not be repositioned.
Steve Shapiro is a 61-year-old Brooklyn resident with cerebral palsy who is almost completely unable to move any of his limbs and is totally dependent on home attendants for toileting, transferring, eating, and personal hygiene. See Declaration of Steve Shapiro ¶¶ 1-7 (PX 17). In March, the City sent him notice of intent to reduce his split-shift care to sleep-in care; he requested a fair hearing and aid continuing. Although he received a fair hearing (and was still waiting for the determination as of July 26), he has not received continuing split-shift care; “on many nights” he has been left in wet diapers and has not had sufficient help with turning and repositioning.
Otelia Terry is a 76-year-old Manhattan resident who is completely bedbound as a result of her metastatic cancer and obesity. Like Pouvillegas and Shapiro, she received notice of an intent to reduce her split-shift care, requested a fair hearing, but did not receive aid continuing for two weeks. As a result, she suffered from “tremendous physical pain” because her sleep-in aids would not reposition her during the night and she felt “completely degraded” because she was forced to lie in her soiled diapers. See Declaration of Randal S. Jeffrey, Terry’s Counsel, ¶¶ 13-15.
104 See Pl. Findings ¶ 6 (citing to testimony of Dr. Cameron Hernandez discussing the medical importance of regular turning and repositioning of bedbound patients, and of changing their soiled diapers, in order to prevent bedsores).
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irreparable injury.105
Third, there is Second Circuit and out-of-circuit appellate law holding
that the mere threat of a loss of medical care, even if never realized, constitutes
irreparable harm.106 Dr. Hernandez testified that particularly for elderly and
demented patients, anxiety exacerbates symptoms of mental illness and worsens
pain.107 Thus, even home care recipients who do receive aid pending their fair
hearing are likely to suffer irreparable harm as a result of the threatened reduction
in their care.108
105 See LaForest, 376 F.3d at 55 (finding that the loss of medical benefits leading to a substantial risk to health, financial hardship, and anxiety associated with uncertainty “comports with this Court’s understanding of irreparable harm as harm shown to be non-compensable in terms of money damages”) (internal quotation omitted). Accord Communications Workers of America v. NYNEX Corp., 898 F.2d 887, 891 (2d Cir. 1990); Whelan v. Colgan, 602 F.2d 1060, 1062 (2d Cir. 1979) (“the threatened termination of benefits such as medical coverage for workers and their families obviously raised the spectre of irreparable injury”).
106 See LaForest, 376 F.3d at 55 and Whelan, 602 F.2d at 1062. See also United Steelworkers of America v. Textron, Inc., 836 F.2d 6, 8 (1st Cir. 1987) (Breyer, J.) (“We should then conclude that retired workers [deprived of health insurance and thus at risk of losing medical care] would likely suffer emotional distress, concern about potential financial disaster, and possibly deprivation of life’s necessities (in order to keep up insurance payments). In short, taken together, these facts would show harm that, in this sort of case, is ‘irreparable.’”).
107 See Hearing Tr. at 142-144. 108 See, e.g, id. at 172 (testimony of plaintiff Strouchler regarding his extreme anxiety and fear at the prospect of losing care).
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Finally, it is important to remember that the City succeeded in reducing or terminating the split-shift care of approximately 312 people between October 4, 2011 and July 20, 2012.109 During that time, however, approximately ninety-seven percent of people who were threatened with a reduction or termination of benefits and asked for a fair hearing succeeded in reversing the City’s decision. Although it may be that many of the 312 individuals who failed to request a fair hearing did so because they agreed that they were no longer entitled to split-shift care, it is also highly likely that many of the 312 simply failed to request a fair hearing because they did not receive or understand the notice or recognize their right to a fair hearing. It is further likely that some of the people who did not request a hearing were in fact similarly situated to the people who requested and won hearings and that if they had requested a fair hearing, the ALJ would have ruled in their favor.
The evidence shows that members of the putative class have been irreparably harmed as a result of defendants’ actions. And the evidence also establishes a strong likelihood that if defendants’ actions continue unabated, members of the putative class will imminently suffer more irreparable harm.
C. Plaintiffs Have Established a Substantial Likelihood of Success on the Merits
109 Defendants’ List of Individuals, PX 14. 38

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As I explain below, plaintiffs have established a likelihood of success on their challenge to the defendants’ practices on the basis of the Medicaid Act and on grounds of procedural due process. I therefore do not need to reach their claims under the ADA and the Rehabilitation Act or under substantive due process.
Two principles are central to plaintiffs’ likelihood of success on their Medicaid Act claim. First, defendants are obligated to use “reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan”110 and to provide the same services to all eligible individuals who have the same need for those services.111 Second, as federal regulations and the Second Circuit have made clear, the State must ensure compliance with the Medicaid Act; although the City acts as the State’s agent, the State bears ultimately responsibility for the program.112
As plaintiffs point out, the State has authority to make its fair hearing
110 42 U.S.C. § 1396a(a)(17). 111 See id. § 1396a(a)(10)(B)(i) and (ii). 112 See Shakhnes, 2012 WL 3264099, at *1 (“Although the State agency may delegate to local entities the performance of certain responsibilities, see 42 C.F.R. § 431.10(e), the State agency must (1) ‘[h]ave methods to keep itself currently informed of the adherence of local [entities] to the State plan provisions and the agency’s procedures for determining eligibility,’ and (2) ‘[t]ake corrective action to ensure their adherence,’ 42 C.F.R. § 435.903” (some quotations and citations omitted)).
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decisions “binding” on other similar cases.113 Of course, it can also issue clearer regulations and clarifying memoranda and it can conduct training sessions.114
Given the State’s ninety-seven percent reversal rate of City decisions, the State’s failure to direct the City to change its practices is troubling.115
1. “Some” Versus “Total” Assistance
Plaintiffs have established a substantial likelihood that they will
prevail on their claim regarding the City’s interpretation of the terms “some
assistance” and “total assistance.” As I discussed above, the City is failing to
assess whether a task is performed by the patient or for the patient, and treating all
patients who can participate in any way as needing only “some” assistance. This
interpretation conflicts with the plain meaning of the regulation and the State’s
113 See 18 N.Y.C.R.R. § 358-6.3 (when issuing a fair hearing decision, the State may also issue “a direction to the agency to review other cases with similar facts for conformity with the principles and findings in the decision.”).
114 The State did issue one clarifying memorandum regarding the change in regulatory language from “unscheduled” to “at times that cannot be predicted.” But it has not issued other clarifying mememoranda on the topics at issue here. The State has not conducted any trainings with the City between January, 2011 and the present. See Hearing Tr. at 37:1-7.
115 In his 6/27/11 letter, the City Commissioner informed the State Deputy Commissioner of the City’s “dismal fair hearing record,” which at the time involved reversal in sixteen of seventeen cases. Since then, the City’s record has only gotten worse and yet the State, aware of the problem and legally responsible for it, has failed to act.
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failure to “[t]ake corrective action to ensure [the City’s] adherence” to the regulations violates the Medicaid Act.116
2. Care at Times that Cannot Be Predicted Plaintiffs have established a substantial likelihood that they will prevail on their claim regarding the availability of home care for patients who have frequent medical needs at times that can be predicted – e.g., those patients like Strouchler who need attention every two hours. The State’s regulation now states that split-shift care is only available if the assistance is needed at times that “cannot be predicted.”117 However, the State’s witness testified that a patient who needed diaper changes and turning and positioning throughout the night would not be ineligible for split-shift services simply because the need was regular and could be
116 Plaintiffs argue that a modification to the regulation is crucial because, even when interpreted according to its plain meaning, the some/total distinction does not make sense: if a patient requires another person’s help in order to perform a crucial task, it does not matter whether the task is conceptualized as being performed “by the patient” with the attendant’s help or by the attendant “for the patient” with the patient’s help. See Pl. Findings ¶ 56. The State has not explained why it adopted the some/total distinction. Because this litigation is still at the preliminary injunction stage, however, there is no reason to reach the question of whether the distinction complies with federal law. It is sufficient at this stage to find that plaintiffs are likely to prevail on their argument that the City’s application of that distinction is improper.
117 18 N.Y.C.R.R. § 505.14(a)(3). 41

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predicted.118 In multiple fair hearing decisions, the ALJs have reversed the City’s determination to eliminate split-shift care based on its interpretation of this regulation.119
There is a substantial likelihood that the State’s failure to clarify the meaning of this regulation and ensure that its agent (the City) adheres to that meaning violates the State’s duty to create and enforce “reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan.”120
3. Turning and Positioning Plaintiffs have established a substantial likelihood that they will prevail on their claim regarding the availability of home care for patients who have a medical need for turning and positioning (but not transferring) during the night. The State’s regulations do not include “turning and positioning” as one of the
118 See 7/26/12 Hearing Tr. at 40:15-17. 119 See Pl. Findings ¶¶ 24(b)(iv), 24(d), 24(e) (citing fair hearing decisions, including the one overturning the City’s decision to terminate Strouchler’s care). 120 42 U.S.C. § 1396a(a)(17). Plaintiffs believe that it is unreasonable to deny care to patients whose needs are predictable but frequent and that the regulation must therefore be rewritten. They also argue that it violates Medicaid’s comparability requirement and puts such patients at risk of institutionalization in violation of the ADA. Again, because the State has said that the regulation should not be read to deny such patients care, I need not (yet) reach those questions.
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activities of daily living for which split-shift care is available. Instead, the State argues that it “has rationally determined not to add ‘turning’ or ‘repositioning’ to the list of tasks included in personal care services regulations because [it] believes these acts are part of the function of ‘transferring’ which is included in the regulation.”121
Although the State’s position was apparently uncontroversial for many years, Dr. Aisner, believes that the concept of “turning” and “positioning” is not included in “transferring.” Plaintiffs’ doctor agrees with her. Even the State’s chief witness acknowledged, on cross examination, that the terms generally refer to different activities.122
The State’s position is therefore unclear. In dozens of cases, the State has reversed the City as a result of this confusion. There is a substantial likelihood that the State has therefore failed to establish and ensure adherence to “reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan.”123
4. Changes in Medical Conditions or Previous Mistakes

121
122
148).
123

State Mem. at 17. See City Findings ¶¶ 62-65 (citing to 7/26/12 Hearing Tr. at 13, 55-56,
42 U.S.C. § 1396a(a)(17). 43

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Plaintiffs have established a substantial likelihood of success on their claim that the City has, in dozens of cases, improperly cited either a change in condition or a mistake in previous assessment (and frequently both) to justify reducing or terminating split-shift care.124 These decisions are unreasonable. Because, in these cases, neither the City nor the State has ensured compliance with reasonable standards, there exists a substantial likelihood that defendants have violated the Medicaid Act.
5. Failure to Provide Adequate Notice Finally, as described in the analysis of irreparable harm, the City’s form of notice has frequently violated the Medicaid requirement that all termination notices comply with Goldberg v. Kelly.125 D. Balance of Interests Plaintiffs’ interest in halting the improper reduction and termination of their benefits is significant. On the other hand, the State and the City have no legitimate interest in improperly reducing or terminating the benefits of people who are legally entitled to those benefits. The City argues that the public has a interest in “the orderly administration of split-shift services and other personal care
124 See Pl. Findings ¶¶ 32-35. 125 See 42 C.F.R § 431.205(d) (“The hearing system must meet the due process standards set forth in Goldberg v. Kelly”).
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services,” and that is surely true.126 But over the past sixteen months, defendants’ implementation of the home care services program has been disorderly. Acting as the State’s agent, the City has informed hundreds of elderly and disabled people that they are no longer entitled to the medical care that they have been receiving. Then, after causing these vulnerable patients a great deal of anxiety and much work on the part of their family members and advocates, the State has reversed ninetyseven percent of the City’s decisions. The public can have no interest in the perpetuation of such practices. Both plaintiffs’ interest and the public interest weigh heavily in favor of injunctive relief.
E. Appropriate Scope of Injunctive Relief Plaintiffs seek an injunction “enjoining the City and State Defendants from reducing or terminating split-shift home care services to those New York City Medicaid recipients currently receiving these services and . . . reinstating split-shift services to any New York Medicaid recipient whose split-shift home care has been reduced or terminated since January 1, 2011.”127 Furthermore, they seek to enjoin enforcement of State regulations insofar as they deny split-shift care to patients because they need only turning and positioning (but not feeding, ambulating,
126 City Mem. at 22. 127 Notice of Motion for Preliminary Injunction ¶¶ 1-2.
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transferring, or toileting), because their needs are deemed predictable or capable of
scheduling, or because they need only “some” and not “total” assistance.128
The City objects to the scope of the injunction, arguing that it is
improper to prevent the reduction or termination of care in all cases as plaintiffs do
not allege that all reductions or terminations of care are improper. The City argues
that it should only be enjoined from reductions or terminations on the basis of
reasons that the Court has found likely constitute a violation of law. Similarly, the
City believes it should not be required to reinstate split-shift care in all cases.129
As the Second Circuit has recently explained,
Rule 65(d) provides that “[e]very order granting an injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). We have interpreted Rule 65(d) as requiring that “an injunction . . . be specific and definite enough to apprise those within its scope of the conduct that is being proscribed.” S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001) (internal
128 See id. ¶ 3. The State argues that “[t]he Eleventh Amendment bars plaintiffs’ claims against state defendants which seek retrospective relief for alleged past violations of federal law, which allege violations of state law and which seek enforcement of state regulations.” State Mem. at 14. But the relief plaintiffs seek is prospective, not retrospective, and it relates to compliance with federal law, not state law. See Fishman, 743 F. Supp. 2d at 136-39.
129 See City Mem. at 23-25. The State has disputed plaintiffs’ entitlement to an injunction but has not addressed the appropriate scope of any injunction should the Court find one necessary.
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quotation marks omitted) . . .
Although a district court has “a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct,” it is nonetheless “the essence of equity jurisdiction” that a court is only empowered “to grant relief no broader than necessary to cure the effects of the harm caused by the violation.” Forschner Grp., Inc. v. Arrow Trading Co., 124 F.3d 402, 406 (2d Cir. 1997) (internal quotation marks omitted). We have instructed that injunctive relief should be “narrowly tailored to fit specific legal violations” Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 50 (2d Cir. 1996) (internal quotation marks omitted), and that the court must “mould each decree to the necessities of the particular case,” Forschner Grp., 124 F.3d at 406 (internal quotation marks omitted).130
In light of my obligation to craft an injunction narrowly tailored to fit
the specific legal violations, and in light of my findings of fact and conclusions of
law as detailed above, I enter the following injunction:
The City shall not reduce or terminate the split-shift care of any current recipient because:
- the recipient needs only “some” assistance; - the recipient’s needs can be predicted or scheduled; - the recipient’s only medical needs are turning and positioning; - there has been a change in the recipient’s medical condition,
unless the City submits to the recipient a declaration, signed by a physician who has personally examined the recipient, that details a material change in the patient’s condition and certifies that because of the change the recipient is no longer eligible for split-shift care; or because
130 City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 143-44 (2d Cir. 2011).
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- there has been a mistake in a previous diagnosis or assessment, unless the City submits to the recipient a declaration, signed by a supervising LMD, that details the mistake in the previous diagnosis and explains how it occurred.
At the same time that it sends any recipient a notice terminating or reducing care as a result of a previous mistake or change in medical condition, the City shall forward to plaintiffs’ counsel a copy of the notice. The City shall redact from the copy any personal identifying information.
The State shall, within thirty days of this order, publicly issue written clarification regarding the proper interpretation and application of the regulation with respect to the availability of split-shift care for needs that are predicted and for patients whose only nighttime need is turning and positioning.
Plaintiffs have also asked that I order defendants to reinstate split-shift
care for all recipients who have lost it since 2011. However, it is likely that at least
some of those recipients did not request fair hearings because they agreed or did
not object to the City’s determination. The parties have not submitted sufficient
information for me to direct relief as to all people who lost split-shift services. The
parties are therefore instructed to meet and confer and then to submit letters to the
Court with recommendations regarding appropriate relief for this group of people.
VI. CONCLUSION
For the reasons stated above, plaintiffs’ motion for a preliminary
injunction is granted in part. I decline to order the reinstatement of split-shift care
to all those whose services have been reduced or terminated, pending additional
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submissions by the parties. A conference is scheduled for September 10, 2012 at 4:00 p.m.

Dated:

September 4,2012 New York, New York

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Appearances

For Plaintiffs:

Toby Golick, Esq. Leslie Salzman, Esq. Cardozo Bet Tzedek Legal Services 55 Fifth Ave., 11th Floor New York, NY 10003 (212) 790-0240

Donna Dougherty, Esq. JASA / Legal Services for the Elderly in Queens 97-77 Queens Blvd., Suite 600 Rego Park, NY 11374 (718) 275-5352

Yisroel Schulman, Esq. Ben Taylor, Esq. Randal Jeffrey, Esq. N.Y. Legal Assistance Group 7 Hanover Sq., 18th Floor New York, NY 10004 (212) 613-5000

For City Defendant:

For State Defendant:

David Rosinus, Jr. Gloria Yi Assistant Corporation Counsel New York City Law Department 100 Church St. New York, NY 10007 (212) 788-8316

Robert Kraft Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 24th Floor New York, NY 10271 (212) 416-8632

50

 
 Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------- }C

CHARLES STROUCHLER, SARA CAMPOS, by her ne}Ct friend ANA SIMARD, and AUDREY ROKAW, by her ne}Ct friend NINA PINSKY, individually and on behalf of all others similarly situated,
Plaintiffs,

STIPULATION AND ORDER CONCERNING TEMPORARY RELIEF

-against­
NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as E}Cecutive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources Administration/Department of Social Services,

12 Civ. 3216 (SAS)

Defendants.

WHEREAS, Plaintiffs commenced this action on April 24, 2012 alleging that Defendants violated their rights in reducing or terminating their continuous personal care services (also known as "split-shift services") provided under the Medicaid personal care and consumer directed personal assistance programs ("continuous personal care services");
WHEREAS, Plaintiffs Charles Strouchler, Sara Campos, and Audrey Rokaw have made an application to the Court seeking a temporary restraining order and a preliminary injunction enjoining Defendant Commissioner Robert Doar ("City Defendant") from reducing or terminating their continuous personal care services, or the continuous personal care services of similarly situated persons;
WHEREAS, counsel for Plaintiffs and for Defendants Commissioner Nirav Shah, E}Cecutive Deputy Commissioner Elizabeth Berlin (the "State Defendants"), and

Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 2 of 9
Commissioner Robert Doar (together, the "Defendants," and, collectively with Plaintiffs, "the Parties") appeared before the Court on May 18, 2012;
WHEREAS, the Court directed the Parties to attempt to negotiate the language of a stipulation and order providing temporary relief to plaintiffs and members of the proposed class, which would remain in effect until a hearing on Plaintiffs' application for a preliminary injunction;
WHEREAS, Defendants deny any and all liability or wrongdoing arising from Plaintiffs' allegations in the Complaint or their papers in support of their application for a temporary restraining order and preliminary injunction, and nothing in this Stipulation and Order Concerning Temporary Relief ("this Stipulation and Order") shall be deemed an admission of any fault or liability by any Defendant;
WHEREAS, payments to providers of personal care services ("providers") paid for by the New York Medicaid program are made by Defendant Shah's fiscal agent after the provider makes a claim to said fiscal agent; and
WHEREAS, the Parties have agreed to resolve Plaintiffs' application for a temporary restraining order on the terms set forth below;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, through their attorneys, as follows:
1. The terms of this Stipulation and Order shall be in effect from the date that the Court so-orders it until the Court hears Plaintiffs' application for a preliminary injunction.
2. Pending the hearing on Plaintiffs' application for a preliminary injunction, the City Defendant agrees to refrain from reducing or terminating continuous personal care services to individuals who have been authorized to receive such services, except for those cases
2 


Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 3 of 9
specified in paragraph 3 below. City Defendant will provide Plaintiffs' counsel with a copy of any fair hearing decision (redacted of any identifying information other than the fair hearing number) affirming a reduction or termination of continuous care at the time the decision is received by City Defendant.
3. Notwithstanding the terms of paragraph 2 above, City Defendant shall be permitted to reduce or terminate continuous personal care services for those individuals in the following categories during the period that this Stipulation and Order is in effect:
a. Individuals authorized to receive continuous personal care services due to a temporary medical condition, medical treatment, or accident that resulted in a need for such services for a finite time period that has ended;
b. Individuals who voluntarily transfer to other long-term care programs, such as nursing homes or managed long-term care;
c. Individuals who have a change in their financial circumstances such that they are no longer eligible for Medicaid funded services;
d. Individuals who have a change in their social circumstances which changes their need for continuous personal care services; or
e. Individuals who have failed to submit the necessary documentation that would enable the City Defendant to process his or her application for reauthorization of continuous personal care services, to the extent that reducing or terminating such services for any such individual is otherwise permitted by law.
4. In any case in which Plaintiffs' counsel contends that the proposed reduction or termination to be made pursuant to paragraph 3 above is improper under current law and regulations, they will contact counsel for City Defendant to inform such counsel of their concern
3 


Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 4 of 9
regarding the propriety of City Defendant's determination and afford him a reasonable opportunity that does not pose an imminent risk to a client's health or safety to respond to and address Plaintiffs' concerns prior to seeking any necessary relief from this Court.
S. In any case in which City Defendant determines to reduce or terminate continuous personal care services, the affected individual recipient retains all legal and fair hearing rights to challenge any determination reducing or terminating such services.
6. During the time period that this Stipulation and Order is in effect, the Local Medical Directors ("LMDs") shall continue to conduct their scheduled independent assessments of each recipient's case, as required by State law, rule, and/or regulation. However, if any recipient's case does not fall within one of the categories set forth in paragraph 3 above, there shall be no reduction or termination of continuous personal care services pursuant to the LMD's assessment.
7. If as a result of the LMD assessment, City Defendant determines that continuous personal care services should be reduced or terminated, and the case does not fall within one of the categories set forth in paragraph 3 above, City Defendant will continue to provide personal care at the current level, and shall send a notice to the recipient advising the recipient (a) of City Defendant's determination and the reasons therefor; (b) that, despite the determination, no reduction or termination of services will take place at this time; and (c) that, prior to any reduction or termination of services, the recipient 'will receive a new notice, and will have the opportunity to request a fair hearing with aid continuing should the recipient wish to challenge the termination or reduction of services. The new notice will comply with all notice requirements of 18 N.Y.C.R.R. Part 358.
4

Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 5 of 9
8. Any recipient whose continuous personal care services would have been reduced but for the existence of this Stipulation and Order, but whose services are maintained pursuant to the terms of this Stipulation and Order, shall receive continuous personal care services throughout the time period that this Stipulation and Order is in effect, with the exception of individuals involuntarily transferred to Medicaid Managed Long Tenn Care. Plaintiffs reserve the right to seek further relief from the Court against the appropriate defendants should any recipient face reduction or termination of continuous personal care services following an involuntary transfer to Medicaid Managed Long Term Care.
9. If City Defendant is permitted to reduce or tenninate any such recipient's continuous personal care services following the expiration of this Stipulation and Order or any subsequent order issued in this action during a reauthorization period that begins while this Stipulation and Order is in effect, City Defendant shall serve a Notice of Intent to reduce or terminate continuous personal care services at that time (as discussed in paragraph 7(c) above), and the recipient's right to request a fair hearing and seek aid~continuing pursuant to applicable law shall accrue at that time. This provision shall survive the expiration of the term of this Stipulation and Order.
10. Nothing contained herein shall be deemed to be an admission by any of the Defendants that they have in any manner or way violated any of Plaintiffs' rights, or the rights of any other person or entity, as defined in the constitutions, statutes, ordinances, rules, or regulations of the United States, the State of New York, or the City of New York, or any other rule, regulation, or by-law of any department or subdivision of the State of New York, the City of New York, the New York State Department of Health, the New York State Office of Temporary and Disability Assistance, or the New York City Human Resources Administration.
5 


Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 6 of 9
11. This Stipulation and Order is not effective unless and until it is So Ordered by the Court, and no party has any rights or obligations arising from this Stipulation unless and until this Stipulation and Order is So Ordered by the Court.
12. Within twenty days after the end of each calendar month covered by the provisions of this So Ordered StipUlation, City Defendant will forward to counsel for Defendant Shah a list of the names and client identification numbers of all persons whose personal care authorization would have been reduced from continuous personal care services to a lower level of care during the preceding calendar month but for the operation of this So Ordered Stipulation and Order.
13. Payment by Defendant Shah's fiscal agent to providers for services provided for continuous personal care to the persons identified pursuant to paragraph 12 of this Stipulation and Order will not be denied solely on the basis that continuous personal care services were provided to comply with the terms of this So Ordered StipUlation and Order. Notwithstanding the preceding sentence, Defendant Shah reserves, on behalf of his fiscal agent, the right to deny claims for payment made by providers on other grounds in the ordinary course of business, including, but not limited to, the failure of a service provider to properly complete and submit claims for payment.
14. This Stipulation and Order contains all of the terms and conditions agreed upon by the Parties, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation and Order regarding its subject matter shall be deemed to exist, or to bind the Parties, or to vary the terms and conditions contained herein.
6 


Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 7 of 9

15. This Stipulation and Order shall not be used as evidence in, nor is it related to,

any other litigation or settlement negotiation, nor shall it be used as evidence, or for any other

reason, in the instant litigation. except to enforce the tenns hereof.

Dated: New York. New York June 11,2012

TOBY GOLICK, ESQ. LESLIE SALZM~, ESQ.

MICHAEL A. CARDOW

CORPORATION COUNSEL OF THE

CITY OF NEW YORK

£ .__ ~~. By: .' . ...

~::----

lia~. Rosinus, Jr.• Esq.

Glona Vi. Esq.

Cardozo Bet Tzedek Legal Services 55 Fifth Avenue, 11th Floor New York, New York 10003 (212) 790-0240
• and·

100 Church Street, Rm. 2-165 
 New York, New York 10007 
 (212) 788·8316 

CouDsel for Defendant Commissioner Robert Doar

NEW YORK LEGAL ASSISTANCE 
 GROUP 

BY:~. ~/~~ en Taylor, Esq. 
 Yisroel Schulman, Esq. 
 Randal Jeffrey, Esq. 

7 Hanover Square, 18th Floor 
 New York, New York 10004 
 (212) 613·5000
-and -

7
- - - - - -..- . - - - - - - - - - - - - - - - - - - - - - - - - - -_ _ _ _----l

Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 8 of 9

JASAILEGAL SERVICES FOR THE ELDERLY IN QUEENS
97-77 Queens Boulevard, Suite 600 Rego Park, New York 11374 (718) 275-5352 Counsel for Plaintiffs

ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK
By:_-:--~_-:---=-. ._ _~
Robert L. Kraft, Esq.
120 Broadway New York, New York 10271 (212) 416-6075
Counsel for Defendants Commissioner Nirav Shah, M.D., and Executive Deputy Commissioner Elizabeth Berlin

SO ORDERED:
SHIRA A. SCHEINDLIN U.S.D,J.

8

Case 1:12-cv-03216-SAS Document 13 Filed 06/12/12 Page 9 of 9

JASAILEGAL SERVICES FOR THE ELDERLY IN QUEENS
By:_ _ _ _ _ _ _ _ __
Donna Dougherty. Esq.
97-77 Queens Boulevard, Suite 600 
 Rega Park, New York 11374 
 (718) 275-5352 

COUDlel for Plaintiffs 


ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF' NEW<VORK
By:I"'-~
Ro·~~4~rt~L-.~Kr~a~~~E~sq--.- - - - ­
',-, I 

120 Broadway 
 New York, New York 10271 
 (212) 416-6075 

Counm for Defendants Commissioner Nirav Shah, M.D., and Executive Deputy Commissioner Elizabeth Berlin

8 


 
 Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 1 of 44

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X CHARLES STROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all others similarly situated,

ECF

-against-

Plaintiffs,

NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources Administration/Department of Social Services,
Defendants. -------------------------------------------------------------------X

FIRST AMENDED COMPLAINT
Docket No. 12 CV 3216 (SAS)(GWG)
Filing Date: April 24, 2012

I. PRELIMINARY STATEMENT 1. Plaintiffs are elderly or disabled Medicaid recipients who depend on continuous personal
care services (also known as “home care”) in order to continue to live in their homes in the community. This 24-hour care is also known as “split-shift” care because it is provided by home attendants working in shifts day and night. It is provided and paid for by the New York State Medical Assistance program. In violation of the court’s holding in Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996) (Scheindlin, J.), due process, and other federal laws, Plaintiffs are threatened with drastic reductions of these essential splitshift home care services as a result of new practices and procedures, including the City Defendant’s reliance on a state regulation, challenged in this proceeding. Accordingly,

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 2 of 44
Plaintiffs seek declaratory relief invalidating the regulation and Defendants’ new policies, as well as an injunction preventing arbitrary reductions and terminations of home care that bear no relationship to an individual’s need for services. 2. Contrary to the specific holding of Mayer v. Wing, and its implementing regulations, the City Defendant has notified the named Plaintiffs and members of the Plaintiff class that their home care will be reduced or terminated even though there has been no change in their medical condition and need for service, and even when they have been receiving the same amount of home care services for many years, in some cases for more than a decade. 3. Further, when making the decisions to reduce services to Plaintiffs needing 24- hour continuous home care services the City Defendant often relies on a state regulation, challenged in this proceeding, which defines continuous care as
the provision of uninterrupted care, by more than one person, for more than 16 hours per day for a patient who, because of the patient’s medical condition and disabilities, requires total assistance with toileting, walking, transferring or feeding at times that cannot be predicted. 18 N.Y.C.R.R.§ 505.14(a)(3)(2012). 4. Rather than being used appropriately to provide home care services to those with a medical need for it, City Defendant is improperly using this regulation to deny split-shift care to almost all Medicaid patients, usually in one of three ways. In some cases it is by asserting that the patient’s needs are “predictable” – even if the assistance is for a task such as toileting which cannot be predicted. In other cases it is by asserting that the need for assistance is not “total” but “some” – even if “some assistance” is assistance with a task such as changing a soiled adult diaper which the patient could not possibly do on her own. In still other cases it is by asserting that a bedbound patient may not receive
2

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 3 of 44
frequent nighttime assistance with turning to prevent bedsores because “turning” does not appear in the definition of continuous care. 5. The result is that, despite a prior determination of the medical need for split-shift care, City Defendant has notified Plaintiffs and members of the class that their service will be reduced, in many cases to “sleep-in” care in which an aide is in the home twenty-four hours per day but is expected to be able to sleep during the nighttime hours. As a result, a patient who needs to have an alert attendant at night will not receive medically necessary services. 6. The City Defendant has begun a process of re-evaluating every case in which there has been an authorization of split-shift personal care services in order to reduce and/or eliminate the City’s 24-hour caseload. As a result, City Defendant has denied medically necessary services to individuals who cannot assist themselves with crucial lifesustaining activities because the individual is somehow able to even minimally participate in a task or because the individual’s nighttime needs can be anticipated or “predicted.” Because many of the named Plaintiffs and members of the Plaintiff class have extensive needs at night requiring an alert, awake aide, their health and safety cannot be maintained at home with care only by a sleep-in aide, and they will experience avoidable medical problems requiring treatment or hospitalization, or they will be forced to move to a nursing home. 7. As a result of the communications between the City Defendant and Defendant Shah and the numerous Fair Hearings requested by members of the proposed class and the extraordinarily high number of decisions reversing the City’s reductions and terminations of split-shift home care, both State Defendants know of the City’s unlawful actions. In
3

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 4 of 44
addition, both State Defendants know that the City has been strictly following a state regulation that makes “the local professional director or his or her designee [referred to as the “local medical director” (“LMD”)]” the final decision-maker. Although all Defendants are aware that the LMDs are not following the law, none of the Defendants has taken adequate steps to train the LMDs regarding the relevant law for the provision of split-shift home care, and to require the LMDs to follow the law. Rather than taking any steps to address the LMD’s obvious flouting of the relevant legal and regulatory requirements, State Defendant Shah has affirmatively and purposefully endeavored to ensure that the LMDs remain the sole decision makers by repeatedly instructing the City Defendant that the LMDs and only the LMDs must make these decisions and that the City must follow the LMD determinations whether they comply with the law or not. 8. Plaintiffs therefore bring this action for declaratory and injunctive relief to prevent and declare illegal the reduction of their Medicaid home care in violation of the Medicaid Act, 42 U.S.C. § 1396 et seq. and its implementing regulations; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. and its implementing regulations; Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794; and the Supremacy Clause and the Due Process Clause of the 14th Amendment of the United States Constitution.
II. JURISDICTION AND VENUE 9. 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; the Americans with
4

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 5 of 44
Disabilities Act, 42 U.S.C. § 12133; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(a)(2). 10. 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 where all named Plaintiffs reside and where a substantial part of the events giving rise to this action occurred.
III. PARTIES 11. Plaintiff CHARLES STROUCHLER is a 68 year old man who lives alone in Manhattan.
Because of his serious medical conditions and impairments, he has been receiving 24hour split-shift Medicaid covered home care 7 days a week since approximately 1997. 12. Plaintiff SARA CAMPOS is a 91 year old woman who lives alone in Manhattan. Because of her serious medical conditions and impairments, she has been receiving 24hour split-shift Medicaid covered home care for the past several years. 13. Plaintiff AUDREY ROKAW is a 93 year old woman who lives alone in Manhattan. Because of her serious medical conditions and impairments, she has been receiving 24hour split-shift Medicaid covered home care 7 days a week since 2010, following a favorable decision in an administrative hearing. 14. Defendant NIRAV SHAH, M.D. is the Commissioner of the New York State Department of Health (“DOH”) and is responsible for the administration of the Medicaid program in the State of New York. He maintains offices for the administration of Medicaid home care services at Corning Tower, Empire State Plaza, Albany, NY 12237. 15. Defendant ELIZABETH BERLIN is the Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance (“OTADA”) and is responsible for administering and supervising the Office of Administrative Hearings in
5

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 6 of 44
New York State, including ordering aid-continuing and directing local districts to review cases to ensure that the agency is following the principles and findings of State Fair Hearing decisions in similar cases. She maintains offices at 40 North Pearl Street, Albany, New York 12243. In New York City OTADA conducts hearings at 14 Boerum Place, Brooklyn, New York. 16. Defendant ROBERT DOAR is the Administrator of the New York City Human Resources Administration (“HRA”) and is responsible for administering and supervising the Medicaid program in New York City. He maintains offices at 180 Water Street, New York, New York 10038.
IV. APPLICABLE STATUTES AND REGULATIONS The Medicaid Program
17. Medicaid is a joint federal-state program established under Title XIX of the Social Security Act (the “Medicaid Act”), which provides federal funding for state programs that furnish medical assistance and rehabilitation and other services to needy individuals. 42 U.S.C. § 1396 et seq.; 42 C.F.R. § 430 et seq.
18. States are not required to participate in the Medicaid program, but if they do, their state programs must conform to federal law and regulations in order to qualify for federal financial participation. 42 U.S.C. §§1396, 1396a, 1396c.
19. 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). New York has elected to participate in the Medicaid program, and the “single state agency” responsible for the administration of the Medicaid program
6

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 7 of 44
in New York is the New York State Department of Health (“DOH”). N.Y. Soc. Serv. § 363-a (1). 20. The DOH, as the “single state agency,” has exercised its authority under the law to delegate certain administrative responsibilities of the program to local districts. However, DOH remains ultimately responsible for the actions of its agents, including HRA, and to ensure that its agents comply with the federal and state statutes and regulations governing the Medicaid program. 42 U.S.C. § 1396a (a) (5); 42 C.F.R. §§ 431.10, 431.50, 435.903; N.Y. Soc. Serv. §§ 22, 363-a (1), 364(2). 21. The Human Resources Administration (“HRA”) is the local social service provider responsible for the day-to-day operations of the Medicaid program in New York City, acting pursuant to a local plan developed and maintained by HRA under the guidance of the DOH. 22. DOH may not delegate to HRA, or any other agent (including its local medical directors) the authority to (i) exercise administrative discretion in the administration or supervision of the State plan, or (ii) issue, policies, rules, and regulations on program matters. 42 C.F.R. § 431.10(e) (1). 23. Although DOH retains the ultimate responsibility for making decisions regarding Medicaid eligibility and services, if a recipient requests an administrative hearing, known as a “Fair Hearing,” the hearing is conducted by a hearing officer employed by OTADA, who will issue a recommended decision to the Commissioner of DOH who then issues the final administrative decision. 24. Federal regulations require that DOH, as the single state agency, have methods to keep itself informed of local agency compliance with the State plan and “procedures for
7

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 8 of 44
determining eligibility” and must “take corrective action to ensure” compliance by the local agency. 42 C.F.R. § 435.903. 25. Federal law requires that “medical assistance…shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). 26. Under federal Medicaid requirements, states must provide comparable benefits, i.e., benefits that are equal in “amount, duration, and scope,” to all categorically needy Medicaid beneficiaries. 42 U.S.C. § 1396a(a)(10)(B); 42 C.F.R. § 440.240(a), (b)(1). “Categorically needy” Medicaid beneficiaries are beneficiaries in “categories” specified by federal law, such as aged, blind and disabled individuals eligible for Supplemental Security Income (SSI) and other poverty-based programs. 42 U.S.C. §1396a(a)(10)(A). 27. The Medicaid Act also requires states to provide benefits to categorically needy Medicaid benefits that are comparable in “amount duration and scope,” to those benefits provided to” medically needy” Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. §§ 440.240 (b)(1). Medically needy Medicaid beneficiaries are beneficiaries who do not receive cash public assistance because they have income or resources in excess of the requirements for receipt of such assistance, but who nevertheless meet categorical requirements for such assistance, e.g., they are over age 65, blind, or disabled, and have insufficient financial means to pay for their medically necessary care. Individuals in this group become eligible for Medicaid by spending their excess income on medical care. 28. Federal Medicaid law requires participating states to establish reasonable standards, consistent with the objectives of the Medicaid Act, for determining the extent of covered services. 42 U.S.C. § 1396a(a)(17), (19).
8

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 9 of 44
29. Federal law prohibits unreasonable reductions in the amount, duration or scope of services based on diagnosis, type of illness, or condition. 42 C.F.R. § 440.230(c), 42 U.S.C. § 1396a (a)(10)(B).
30. Under federal law, a Medicaid recipient has a right to receive covered Medicaid services, and each service must be “sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b), 42 U.S.C. §1396a(10)(B).
31. While the Medicaid Act does not explicitly state that “medically necessary” services be provided, it is a judicially accepted implicit component of the federal legislative scheme.
Home Care Services under Medicaid 32. Under the Medicaid Act, “Medical Assistance” includes payment of part or all of the cost
of home care services. 42 U.S.C. § 1396d(a)(22). Personal care services, also called “home care services,” are services furnished to an individual who is not in an inpatient or institutionalized setting, and are authorized by a physician and provided in accordance with the State’s Medicaid service plan. 42 C.F.R. § 440.167(a). 33. The Federal Centers for Medicare and Medicaid Services explains that personal care services "include a range of human assistance provided to persons with disabilities and chronic conditions . . . which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability," and "most often relate[] to . . . eating, bathing, dressing, toileting, transferring, . . . maintaining continence, . . . personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management." Centers for
9

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 10 of 44
Medicare and Medicaid Servs., STATE MEDICAID MANUAL § 4480(C), at 4-495 (1999)(emphasis added). 34. In New York State, “Medical Assistance” includes personal care services prescribed by a physician. N.Y. Soc. Serv. § 365-a(2)(e). 35. Under the New York plan, “[p]ersonal care services means some or total assistance with personal hygiene, dressing and feeding; and nutritional and environmental support functions,” such as assistance with feeding, toileting, and walking, where such services are essential to the maintenance of the patient’s health and safety in his or her own home. 18 N.Y.C.R.R., § 505.14(a)(1). New York State’s plan also allows for the provision of personal care through the Consumer Directed Personal Assistance Program (CDPAP) which enables an attendant to perform certain tasks that are beyond the general scope of home attendant practice. N.Y. Soc. Serv. § 365-f; 18 N.Y.C.R.R., § 505.28. 36. In order to receive personal care services, the patient must have a stable medical condition which is defined as a condition that: (a) is not expected to exhibit sudden deterioration or improvement; (b) does not require frequent medical or nursing judgment to determine changes in the patient’s plan of care; and (c)(1) is such that a physically disabled individual is in need of routine supportive assistance and does not need skilled professional care in the home; or (c)(2) is such that a physically disabled or frail elderly individual does not need professional care but does require assistance in the home to prevent a health or safety crisis from developing. 18 N.Y.C.R.R. § 505.14(a)(4)(i)(a) – (c)(1) & (2). 37. Because a home attendant may be trained to provide certain skilled services under the consumer directed personal assistance program, the program uses a slightly more relaxed
10

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 11 of 44
definition of medical stability, requiring only that the person’s condition is not expected to exhibit sudden deterioration or improvement and does not require frequent medical or nursing judgment to determine changes in the consumer’s plan of care. 18 N.Y.C.R.R. § 505.28 (b)(13). The requirements of 18 N.Y.C.R.R. § 505.14(a)(4)(i)(c)(1) & (2) do not apply to individuals who are receiving home care through the Consumer Directed Personal Assistance Program.
Procedure for Requesting Home Care Services 38. 18 N.Y.C.R.R. § 505.14(b) sets out the procedure for a Medicaid recipient to request
home care services. First, the recipient’s doctor must fill out a request for personal care services in accordance with 18 N.Y.C.R.R. § 505.14(c)(i). 39. Next, the City Defendant will determine if the individual is eligible for home care by reviewing the physician’s order and conducting a social assessment, a nursing assessment, an assessment of the appropriateness and cost-effectiveness of the specified services, and an assessment of any other factors as required by the regulation. 18 N.Y.C.R.R. § 505.14(b)(2)(i)-(v). 40. For any case in which 24-hour continuous care is requested, the City Defendant must complete an independent medical review either by the local professional director, a physician designated by the local professional director or a physician under contract with the local social services department to review personal care services cases. 18 N.Y.C.R.R. § 505.14(b)(4)(i). 41. A social assessment is conducted by having a discussion with the patient about his/her circumstances and preferences and evaluating “the potential contribution of informal
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caregivers, such as family and friends, to the patient's care.” 18 N.Y.C.R.R. § 505.14(b)(3)(ii)(a),(b),(d). 42. A nursing assessment is completed by a nurse and includes a review and interpretation of the physician’s order, “an evaluation of the functions and tasks required by the patient,” an assessment of the degree of assistance required, “an evaluation whether adaptive or specialized equipment . . . can be provided safely and cost-effectively,” a “development of a plan of care in collaboration with the patient or his/her representative;” and a recommendation for authorization of services. 18 N.Y.C.R.R. § 505.14(b)(3)(iii). 43. When all of the evaluations are completed, the local professional director or designee reviews these assessments and “is responsible for the final determination of the level and amount of care to be provided.” Services can only begin once the authorization is complete. 18 N.Y.C.R.R. § 505.14(b)(4)(ii). 44. At the end of the initial authorization period, a reauthorization must be completed in order to continue services. The reauthorization procedure follows the same steps as the original authorization, except that a nursing assessment is not required “if the physician’s order indicates that the patient’s medical condition is unchanged.” The reauthorization includes “an evaluation of the services provided during the previous authorization period.” 18 N.Y.C.R.R. § 505.14(b)(5)(ix). 45. 18 N.Y.C.R.R. § 505.28(d) and (f) sets forth a parallel assessment and authorization process for individuals participating in the consumer-directed personal assistance program.
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Notice and Administrative Hearing Requirements Upon Reduction or Termination of Services
46. Federal law and regulations require timely and adequate notice to Medicaid applicants and recipients of any action to deny, discontinue, suspend or reduce medical assistance authorization or services. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 435.919; 435.912, 431.210; U.S Const. Amend. XIV, § 1.
47. Federal law and regulations also require that a state’s Medicaid program provide Medicaid applicants and recipients an opportunity for 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 reduce or terminate Medicaid benefits, recipients who request a Fair Hearing in a timely manner are entitled to receive benefits unchanged pursuant to Aid Continuing Directives until a decision after a Fair Hearing is issued. 42 U.S.C. 1396a(a)(3); 42 U.S.C. § 1396a(a)(3); 42 C.FR. § 431.230(a), 431.231(c), U.S. Const. Amend. XIV, § 1. Fair Hearing systems must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254 (1970), 42 C.F.R. § 431.205(d).
49. Once a plan of care is created and services are authorized for a Medicaid recipient, those services may be reduced or discontinued only “when such services are … no longer medically necessary or when the social services district reasonably expects that such services cannot maintain or continue to maintain the client’s health and safety in his or her home.” 18 N.Y.C.R.R. § 505.14(b)(5)(v)(a).
50. Pursuant to the court order in Mayer v. Wing, to avoid arbitrary service reductions in violation of the Due Process Clause, services may only be reduced under certain delimited circumstances. Thus, the relevant state regulations outline different categories
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of appropriate reasons for the reduction or termination of services, including in pertinent part: that “the client’s medical, mental, economic or social circumstances have changed and the district determines that the personal care services provided under the last authorization or reauthorization are no longer appropriate or can be provided in fewer hours than they were previously,” that “a mistake occurred in the previous personal care services authorization,” that “the client can be more appropriately and cost-effectively served through other Medicaid programs and services,” that “the client’s health and safety cannot be assured with the provision of personal care services,” that “the client’s medical condition is not stable;” or that “the services the client needs exceed the personal care aid’s scope of practice . . . .” 18 N.Y.C.R.R. § 505.14(b)(5)(v)(c)(1), (2), (5-7), (9). 51. In administrative hearings challenging a reduction or termination of medical assistance, “the social services agency must establish that its actions were correct.” 18 N.Y.C.R.R. § 358-5.9(a). 52. The Fair Hearing decision issued by the commissioner must be based exclusively on the administrative record. The Commissioner must issue a written decision that sets forth the hearing issues, the relevant facts, and the applicable law, regulations, and approved policy, if any, upon which the decision is based. The hearing decision must include findings of fact, a determination of the issues, and the reasons for the determination, along with any specific action to be taken by the social services agency. Further, the hearing decision must be supported by substantial evidence. 18 N.Y.C.R.R. § 358-6.1(a), 18 N.Y.C.R.R. § 358-5.9(b). 53. Under the authority granted by 18 N.Y.C.R.R. § 358-6.3, when Defendant Berlin determines from a Fair Hearing that the local district “has misapplied provisions of law,
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regulations or …State-approved policy,” she may direct the local district to review “other cases with similar facts for conformity with the principles and findings in the decision.” When the State gives the local district the direction permitted by 18 N.Y.C.R.R. § 3586.3, the local district is then required to review its cases and report to the State regarding the actions it has taken to comply with the State’s direction. 18 N.Y.C.R.R. § 358-6.5. Such reports are required within 30 days of the State’s direction, and as often thereafter as the State directs. Id.
Disability Discrimination Prohibitions and Requirements 54. Title II of the Americans with Disabilities Act (“ADA”) provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 55. Thus, under the ADA, public entities are required to provide meaningful access to their programs, services and activities, and provide any accommodations or modifications necessary for people with disabilities to access those services. 42 U.S.C. §§ 12131, 12132. 56. Regulations implementing Title II of the ADA provide: “A public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s program with respect to individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3). 57. The ADA prohibits discrimination based on type of disability.
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58. The ADA’s regulations further provide that “[a] public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. § 35.130(b)(8).
59. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
60. Section 504’s regulations prohibit recipients of federal financial assistance from utiliz[ing] criteria or methods of administration . . . (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons. 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4).
61. Furthermore, pursuant to the requirements of Title II of the ADA and Section 504, public entities and recipients of federal financial assistance must “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d), 28 C.F.R. § 41.51(d). Medicaid Home Care Services in New York
62. Medicaid-funded home care services enable people, like the named Plaintiffs, who need assistance with the activities of daily living (essential life activities such as ambulating, bathing, eating, toileting) to receive care from a home attendant while remaining safely in
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their own homes, rather than having to permanently reside in a Medicaid-funded nursing home, hospital or other institution. 63. Medicaid home care services are provided for a set numbers of hours depending on the patient’s needs and the availability of other informal caregivers to provide assistance. Where medically necessary, individuals receiving home care can obtain up to twenty-four hour split-shift care, which involves two home attendants coming to the home, each for twelve hour shifts, seven days per week. 18 N.Y.C.R.R. §§ 505.14(a)(3), (5). 64. The City Defendant also provides “live-in” (also known as “sleep-in”) attendants for individuals who do not require continuous care, but who may need very occasional assistance during the night. These sleep-in attendants generally work in a 12-hour shift (with one “duty free” hour) and are expected to be able to sleep at night, but to be in the home in the event of an emergency or occasional need for assistance during times outside their shift. 65. On information and belief, the City Defendant contracts with various home care agencies to provide home care assistance to Medicaid recipients, and the terms of the contracts require that the home attendants have time to sleep at night, so that one individual does not have to work both day and night. 66. The applicable regulation distinguishes between “total” and “some” assistance. It has long provided that split-shift care is available to individuals who require “total assistance with toileting and/or walking and/or transferring and/or feeding at unscheduled times during the day and night.” 18 N.Y.C.R.R. § 505.14(a)(3). Total assistance is defined to mean that “a specific function or task is performed and completed for the patient.” In contrast, “some assistance” is defined to mean that “a specific function or task is
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performed and completed by the patient with help from another individual.” 18 N.Y.C.R.R. § 505.14(a)(2)(i), (ii). 67. The State Defendant recently amended the regulation applicable to personal care services by providing that split-shift personal care services may only be approved if the patient requires “total assistance with toileting, walking, transferring or feeding at times that cannot be predicted.” 18 N.Y.C.R.R. § 505.14(a)(3) [emphasis added]. The former regulation provided such care could be approved when the patient required assistance “at unscheduled times during the day and night.” [emphasis added]. 68. Defendant Shah has formally noted that the modification of the regulation was not expected to result in any service changes for current recipients of split-shift personal care services. 12 OHIP-ADM 1. 69. Notwithstanding the State Defendant’s statement, the City Defendant notified all Local Medical Directors (LMDs) that upon subsequent reviews of continuous care cases, the LMDs should determine whether the care should be reduced to live-in services where an individual’s need for assistance could be “predicted” or where the person could be found to “participate” in the activity of daily living. 70. While the change in regulatory language seems minor, the new language is being used by the City Defendant to permit the reduction of services in split-shift cases regardless of the importance of such assistance to the maintenance of the individual’s health and safety, the frequency with which the individual requires such assistance during the nighttime hours, or the individual’s complete inability to perform the activity without the attendant’s assistance.
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V. FACTS RELATING TO INDIVIDUAL PLAINTIFFS Plaintiff Charles Strouchler
71. Charles Strouchler is a 68-year old man who had worked as an artist until becoming disabled by the effects of multiple sclerosis. He now has advanced multiple sclerosis, with quadriplegia, limitations in respiratory functioning, and difficulty swallowing. He also has Factor XI deficiency, a form of hemophilia. All of these conditions prevent him from performing his activities of daily living without the assistance of a home attendant. For the past 15 years, he has been receiving split-shift personal care services in his home. His services are delivered through the consumer directed personal assistance program.
72. Mr. Strouchler requires the alert attention of a home attendant at night to reposition him every two hours to avoid the development of bed sores and to reposition his arms and legs when he experiences painful spasms at various times throughout the night. In addition, he requires assistance with bladder catheterization and with necessary adjustments to his breathing mask, and assistance to clear his airways to avoid choking when he is in a reclining position. He also requires assistance during the day and night for occasional nasal and rectal bleeding episodes that he experiences. Aside from the turning every two hours, all his other nighttime needs are at unscheduled and unpredictable times.
73. At the time of his most recent re-assessment for services, Mr. Strouchler’s physician recommended that his split-shift services be reauthorized as they had been for the prior 14 years.
74. Mr. Strouchler’s request for continued split-shift services was reviewed by Local Medical Director (LMD) Charles Levit, who had also reviewed Mr. Strouchler’s for his prior
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reauthorization of services in August 2011. In his August 2011 review, Dr. Levit, had determined that Mr. Strouchler should be reauthorized for split-shift services “without change.” In his Local Professional Review form dated February 10, 2012, however, Dr. Levit determined that despite Mr. Strouchler’s need for assistance with nighttime catheterization and repositioning every two hours, Mr. Strouchler’s services should be reduced to sleep-in care because his needs were “predictable” and could be “scheduled.” 75. In a notice dated February 23, 2012 the City determined to reduce Mr. Strouchler’s care because his “nighttime needs which involve turning/positioning and toileting are anticipated and can be scheduled.” The notice went on to conclude that “therefore a mistake had occurred in your previous authorizations and you do not meet the criteria for continuous care.” 76. The only statement regarding a mistake in a previous assessment is found in Dr. Levit’s February 10, 2012 Local Professional Review form which states that “prior split-shift authorizations appear to have been incorrect.” Such conclusion would also apply to Dr. Levit’s own August 2011 recommendation to re-authorize split-shift services for Mr. Strouchler. 77. Mr. Strouchler appealed the City’s determination and a hearing was held on April 9, 2012. 78. At the hearing Mr. Strouchler presented medical evidence of his numerous nighttime needs and challenged City Defendant’s assertion that a mistake had been made in the last 14 re-authorizations of split-shift services. 79. Dr. Levit testified inconsistently and contradictorily at the hearing. First, he stated that split-shift care should be given to individuals with “excessive” nighttime needs, which he
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explained was either more than twice per night or more than four times per night. Either way, he recognized that since, at a minimum, Mr. Strouchler requires turning and positioning every two hours, this need would exceed either interpretation of “excessive” nighttime needs. At the same time, Dr. Levit asserted that it didn’t matter whether or not Mr. Strouchler’s nighttime needs were “excessive” because he would not be entitled to split-shift care because his nighttime needs were “predictable.” 80. Dr. Levit also testified that the “mistake” that had been made in previous authorizations was a “regulatory mistake.” Although he could not provide an entirely clear response, Dr. Levit stated that the Local Medical Directors received an e-mail directive in October, 2011, instructing them that all split-shift cases were to be reviewed to see if the services could be reduced because the individual’s needs could be “predicted.” 81. Mr. Strouchler was informed that the State was re-opening his appeal and would be conducting a new hearing de novo. 82. A second hearing was held on June 13, 2012. Dr. Levit did not appear at this hearing. Instead, Dr. Anita Aisner, a Local Medical Director supervisor, appeared to testify on the City Defendant’s behalf. 83. Dr. Aisner attempted to identify the “alleged mistake” from the 14 prior assessments, as a failure to recognize that Mr. Strouchler’s needs were predictable and could be scheduled. 84. Counsel for City Defendant argued that it was appropriate to reduce Mr. Strouchler’s because sleep-in care was more cost-effective than split-shift care and identified the prior “mistake” as the authorization of split-shift rather than sleep-in care. 85. Mr. Strouchler is currently awaiting a hearing decision.
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86. Mr. Strouchler lives alone in an apartment at St. Margaret’s House, a HUD 202/Section 8 housing facility for older individuals and individuals with mobility impairments and other disabilities, which is located near the South Street Seaport. It is a source of great satisfaction to him that he is able to continue to live at home in his apartment, a situation that deeply enriches his life and allows him to maintain relationships with friends and loved ones in a way that would be difficult or impossible in an institution. Plaintiff Sara Campos
87. Sara Campos is a 91 year old Medicaid recipient who lives alone is Manhattan. 88. Ms. Campos is extremely ill. She suffers from dementia, pain secondary to osteoporosis,
chronic diarrhea and osteoarthritis. 89. Ms. Campos requires total assistance with every activity of daily living, including the
need for turning and re-positioning at least every two hours per night and day to prevent bedsores, and frequent diaper changes to ensure skin integrity. 90. Despite her condition, Ms. Campos receives many benefits from remaining at home, among familiar surroundings and in the familiar community where she is most comfortable. Her loved ones can visit her frequently in her home. Her family believes that if she were transferred to a nursing home, her condition would deteriorate rapidly. 91. For the past several years, Ms. Campos has been able to remain at home because she receives Medicaid funded split-shift personal care services in the amount of 24- hours per day. 92. On February 10, 2012, Ms. Campos received two notices from City Defendant which stated that her personal care services were going to be reduced from 24 hour split-shift
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services, to twenty-four hour sleep-in services and another which stated that her services were being reauthorized for twenty-four hour split-shift services. 93. On the notice that stated her services were being reduced the stated reason was “our review has determined that your re-authorizations for split-shift care was based on your insomnia and no accommodation for sleep-in services, as such a mistake was made in your initial authorization, therefore you do not meet the criteria for continuous care.” 94. This notice to reduce care is based on a December 9, 2011 determination made by one of the City’s Local Medical Directors, Aura Mask. In her report Dr. Mask concluded that Ms. Campos’s home care should be reduced because her nighttime repositioning and toileting needs can be scheduled, and as such, do not meet the definition for split-shift care. 95. On February 22, 2012, Ms. Campos’s representative requested a Fair Hearing to challenge the reduction of her personal care services. The State ordered “aid continuing” pending the hearing decision, and for this reason only her services have remained unchanged. 96. It is not true that Ms. Campos’s nighttime needs can be scheduled and are predictable. In order to prevent bedsores, it is medically necessary that her adult diapers be changed promptly when they are soiled. This happens several times per night. 97. Moreover, even if these medical needs could be predicted, they far exceed what one sleep-in aide is capable of doing. Sleep-in aides are on duty at least one 24-hour period, and must be able to sleep. Because it is medically necessary that Ms. Campos be repositioned at least every two hours, night and day, it would be impossible for a sleep-in attendant to perform this service.
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98. On June 6, 2012, the Fair Hearing was held. The decision has not yet been issued. 99. If Ms. Campos loses her Fair Hearing she will have to be admitted to a nursing home
because a sleep-in aide will not be able to give her the nighttime care she requires to remain in the community.
Plaintiff Audrey Rokaw
100. Audrey Rokaw is a 93 year old Medicaid recipient who lives alone is Manhattan. 101. Ms. Rokaw is severely disabled, with dementia, osteoarthritis, and congestive heart
failure. 102. Ms. Rokaw requires total assistance with every activity of daily living, including frequent
diaper changes to ensure skin integrity. 103. Despite her condition, Ms. Rokaw enjoys living at home, visited frequently by her loved
ones, and in familiar and comfortable surroundings. 104. Ms. Rokaw has been receiving home care since she first applied for it in 2010. At that
time she was originally approved for 24- hour sleep-in care. 105. Because that amount of care was insufficient, she requested a Fair Hearing, which in
2010 resulted in a final administrative decision that due to her medical condition she was eligible twenty-four hour split-shift care. 106. On March 12, 2012, Ms. Rokaw received two notices from City Defendant which stated that her personal care services were going to be reduced from 24- hour split-shift services, to twenty-four hour sleep-in services and another which stated that her services were being reauthorized for twenty-four hour split-shift care. 107. On the notice that stated her services were being reduced, the stated reason was: “Our current evaluation confirms that you do not require feeding at night and you require
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partial assistance with ambulating, transferring, and toileting. This reflects a change in your medical condition and your personal care services can be provided in fewer hours than were previously authorized. Time cannot be provided for redirecting and calming you, as stand-alone tasks.” 108. This notice to reduce care is based on a determination made by one of the City’s Local Medical Directors, Aura Mask, on November 17, 2011. In her report Dr. Mask concludes that Ms. Rokaw’s home care should be reduced because her night time toileting needs are “partial,” as opposed to “total,” and as such do not meet the definition of continuous care. 109. On March 12, 2012, Ms. Rokaw’s representative requested a Fair Hearing to challenge the reduction of her personal care services. The State ordered “aid continuing” until a decision after the Fair Hearing, and for this reason only her services have remained unchanged. 110. It is not true that Ms. Rokaw’s night-time needs can be provided by a sleep-in aide. Her aides report that she needs to have her diaper changed five to six times per night. In order to prevent skin breakdown, it is medically necessary that her adult diapers be changed promptly when they are soiled. She is unable to change her diapers by herself and needs the aide to change them for her. 111. Sleep-in aides are on-duty at least one 24-hour period, and often for several consecutive 24-hour periods and must be able to sleep. Because it is medically necessary that Ms. Rokaw to be changed five to six times per night, it would be impossible for a sleep-in attendant to perform this service, and if services were reduced to sleep-in, she would have to move to a nursing home.
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112. Ms. Rokaw’s hearing was held on May 2, 2012. At the hearing, the City’s Local Medical Director, Aura Knox Mask, testified that in her medical opinion Ms. Rokaw was not eligible for continuous care because her night time needs were “partial” as opposed to “total” and that Ms. Rokaw’s medical condition had improved.
113. On May 8, 2012 a decision was issued which reversed the City’s determination to reduce Ms. Rokaw’s care. Among other problems noted with the City’s determination, the Fair Hearing decision found that the City failed to complete the assessment in accordance with the regulations, that the City failed to present any evidence at all of a change in Ms. Rokaw’s condition, and that their record did not justify any reduction in services.
114. Even if City Defendant’s determinations in the named Plaintiffs’ cases are reversed by the State Defendants after Fair Hearings, their situations are capable of repetition at their next home care re-assessment.
115. What happened to the named Plaintiffs reflects the City Defendant’s planned effort to dramatically reduce split-shift home care services and the State’s failure to take adequate steps to correct a clear pattern of unlawful reductions and terminations beyond Defendant Berlin’s almost uniform reversal of these unlawful decisions in individual Fair Hearings.
VI. CLASS ACTION ALLEGATIONS
116. Named Plaintiffs bring this action pursuant to Fed. R. Civ. P. Rule 23(a) and (b)(2) on behalf of themselves and as representatives of a class of:
All New York City Medicaid recipients who have been determined by either a Court or City or State Defendants to meet the eligibility requirements for continuous personal care services and who at any time since January 1, 2011 have been or are being threatened with or subjected to a reduction or discontinuance of Medicaid-funded continuous personal care services because City Defendant has
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determined that they do not meet the criteria for continuous personal care services. 117. The class is so numerous that joinder of class members would be impracticable. There are currently approximately 1100 individuals living in New York City who are receiving split-shift Medicaid-funded personal care services. Approximately 35,000 residents of New York City currently receive some personal care services and may need split-shift care at some point in the future. 118. Further, it would be impracticable for the members of the class, who are by definition elderly and disabled and impoverished, to obtain legal services on an individual basis to assert their claims. Consequently, they will likely be unable to assert their legal rights without certification of a class to represent them. 119. Questions of law and fact common to the class predominate over individual questions. The common questions of law and fact are whether the new regulation and policy result in the reduction of split-shift home care in a way that violates Medicaid law, due process and the ADA. 120. All named class members have claims typical of the class in that they all have received reduction or termination notices notwithstanding that there has been no significant change in their medical condition or circumstances. Furthermore, although there are individual differences in particular medical conditions of the named Plaintiffs, in every one of their cases, the City Defendant has informed them of a decision to reduce their long-term split-shift services because: 1) they need “some” but not “total” assistance with the performance of an activity or activities of daily living; or 2) their nighttime needs are “predictable” or can be scheduled; or 3) the City Defendant made a mistake in a prior assessment; or 4) there had been a change in their condition that alters their need for care;
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or 5) the City Defendant will no longer consider their need for some recognized hands-on task such as turning and positioning. Named Plaintiffs, like members of the class have received notices of such reductions, which fail to comply with Constitutional and statutory notice requirements, and fail to comply with standards set forth in Mayer v. Wing, and fail to take into account the need for alert nighttime assistance to allow the recipient to remain at home, rather than having to go to an institution. 121. Named Plaintiffs will adequately protect the rights of class members. There are no conflicts of interest between the named Plaintiffs and members of the class in that all would benefit if the City is ordered to refrain from arbitrary decision making and to apply rational and appropriate standards for determining the amount of home care services to be authorized. 122. Named Plaintiffs are represented by Leslie Salzman and Toby Golick, Clinical Professors of Law at Cardozo Law School, Ben Taylor, Senior Staff Attorney at New York Legal Assistance Group, and Donna Dougherty, Director of JASA/Legal Services for the Elderly in Queens. All of Plaintiffs’ attorneys are experienced in class action litigation and specifically class actions involving issues under the Medicaid program, including the Medicaid home care programs. 123. A class action is the superior method for a fair and efficient adjudication of this matter in that Defendants have acted in a manner generally applicable to the class and a class action will avoid numerous separate actions by class members that would unduly burden the courts and create the possibility of inconsistent decisions, thereby making final injunctive and declaratory relief appropriate as to the class as a whole.
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VII. FACTS APPLICABLE TO THE CLASS AS A WHOLE 124. Since approximately January 2011, City Defendant has been engaged in a concerted
effort to reassess the continuing eligibility of members of the proposed class for receipt of continuous personal care services, with the objective of drastically reducing the number of home care hours authorized for each individual’s care. When authorizing an amount of home care services, the City Defendant adopts the determinations of its Local Medical Directors also known as LMDs. Relying on the LMD determinations, the City Defendant has been reducing or discontinuing home care even when there has been no change in the individual’s needs or eligibility for personal care services, or any other lawful ground for the reduction. 125. In many instances, the City Defendant is clearly making decisions in reverse order by first deciding to reduce care and then attempting to justify the reduction after the fact by claiming that there must have been a prior mistake or change in condition, without identifying and articulating either the mistake or the change in condition. In Ms. Campos’ and Mr. Strouchler’s cases and in other instances, the City Defendant has invoked the justification of a “mistake in a prior authorization,” when the individual has received the same level of services for many years, sometimes for more than a decade. In other cases like that of 93-year old Audrey Rokaw, the City takes the remarkable position that the individual’s health has miraculously improved in order to justify its determination. 126. The City Defendant is and has been using a radical new interpretation and application of the state regulation defining split-shift services, including its language regarding the need
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for “total assistance” as a pretext to reduce split-shift care.. The City Defendant now irrationally interprets this regulation to mean that even when a partially paralyzed individual needs an attendant to change his or her diaper, or when an individual cannot get to or use a toilet or commode without the physical assistance of an attendant, those individuals do not require “total” assistance with toileting. The City’s position on this, as they have repeatedly stated at Fair Hearings, is that where a patient can participate in a task in any way at all, no matter how small, the assistance is not “total” assistance justifying split-shift care. 127. The City Defendant also is and has been irrationally interpreting the state home care regulation defining continuous care to deny coverage to individuals who require services, such as scheduled turning every two hours to avoid bed sores, because such care can be “predicted,” even though there is no way a sleep-in home attendant could perform these tasks day and night, and still have any opportunity to sleep. 128. City Defendant has been implementing the patently unlawful and arbitrary decisions of its LMDs and has not provided any direction, education or training regarding the relevant legal requirements to ensure that its LMDs are making lawful decisions in these cases. 129. As a result of the City Defendant’s efforts to reduce home care, the number of Fair Hearings requested by Medicaid recipients facing reduction in their care has increased, and notwithstanding the high rate of reversals of reductions and terminations after Fair Hearing decisions, the City Defendant has persisted and even increased the number of unlawful decisions using the same improper interpretation and application of the regulations.
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130. During the four-month period from January 1, 2011 through April 30, 2011, State Defendant Berlin reversed City Defendant in all of the ten Fair Hearings challenging reductions of split-shift care, and reversed City Defendant in six out of the seven Fair Hearings challenging terminations of split shift care. The one case the City won was only due to the recipient’s failure to make a timely request for the hearing.
131. An analysis of Fair Hearing decisions issued between August 1, 2011 and June 15, 2012 indicates that State Defendant reversed City Defendant in approximately 240 out of the 244 challenged reductions, and reversed City Defendant in 44 out of 48 challenged terminations.
132. In fact, in June, 2011 City Defendant sent a letter to State Defendant Shah requesting that he eliminate split-shift home care services for all Medicaid recipients through a variety of regulatory amendments and/or policy statements. In this letter, the City Defendant also expressed his concern that the City’s efforts to maximize its cost savings from moving people out of split shift care into either sleep-in care, managed care, or nursing homes were being thwarted by the State’s administrative hearing decisions reversing the City’s reductions and terminations of split-shift care. Although State Defendant Shah did not implement City Defendant’s proposed regulatory and programmatic changes, as is evident from its actions and inactions, it has tacitly approved the City Defendant’s reduction plan.
133. Both State Defendants had actual knowledge of the City Defendant’s on-going effort to eliminate or drastically reduce split-shift services. Both State Defendants were aware of the unprecedented numbers of split-shift home care service recipients who were requesting hearings to challenge proposed reductions and terminations of their care, and
31

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 32 of 44
both State Defendants were aware that those unsupported and unlawful City determinations were being reversed in approximately 96% of the hearing decisions. Upon information and belief, State Defendant Berlin did not take any action to direct the City Defendant to apply any of its Fair Hearing decisions reversing home care terminations and reductions to similarly situated cases as permitted by 18 NYCRR § 358-6.3. 134. The Fair Hearing process has made it evident that even when the LMD is legally or factually wrong, or even when the LMD appears to be biased or on a personal campaign against split-shift home care, the City Defendant is following the LMD’s recommendation. State Defendants have knowledge, from at least the Fair Hearing proceedings, that the City Defendant has given its LMDs complete and unfettered discretion to make final home care determinations. All Defendants have clear knowledge that the LMDs are frequently making decisions in direct contravention of the Mayer decision, federal and state law, state regulations, and long-standing state policies regarding home care. 135. None of the Defendants has taken any corrective measures to address the fact that the LMDs are flagrantly disregarding or misapplying law. Indeed, the City Defendant has encouraged the LMDs to increase their reviews of split-shift cases, and, upon information and belief, to reduce the number of home care hours granted. In fact, at a recent hearing, one LMD testified that she had recently reviewed 30 continuous care cases over one weekend and determined to reauthorize continuous care in only two of the 30 cases. 136. Not only is State Defendant Shah aware of the City’s clear pattern and practice of implementing the unlawful decisions of its LMDs, but, in the face of this pattern of
32

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 33 of 44
unlawful decision-making, continues to take the position that City Defendant must implement those LMD decisions under 18 N.Y.C.R.R. § 505.14(b)(4)(ii), without requiring appropriate City action (such as adequate training, accurate instructions and guidance) to ensure that the decisions of its local medical staff comply with all relevant legal requirements and long-standing State policy. See, e.g., 11 OHIP/ADM-6, p. 8 (September 12, 2011); NYS Office of Temporary and Disability Assistance Office of Administrative Hearings Memorandum to All Administrative Law Judges and Professional Staff, p.2 (September 19, 2011). As a result, City Defendant claims that it has no choice about whether or not to adopt and defend the LMD determinations, and State Defendant Shah takes the position that the City must follow the LMD’s decision unless it is reversed by a Fair Hearing determination. 137. In light of the City’s written correspondence explaining the various mechanisms for eliminating split-shift services and the City’s adoption and implementation of those identified methods for reducing or terminating split-shift services in cases brought to Fair Hearings at which virtually none of the City’s determinations have been upheld, the State was on clear notice that City Defendant was violating the regulatory, statutory and constitutional rights of recipients of split-shift home care services. Having direct knowledge of this history of blatant and widespread errors, the State must have known to a moral certainty that when re-authorizing services for recipients of split-shift care, City Defendant would deprive Plaintiffs and other recipients of split-shift services of their rights. The State Defendant not only failed to take obvious steps to prevent the City’s manifest misconduct, it also purposefully exacerbated the problem by repeatedly
33

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 34 of 44
directing the City to continue to follow the LMD determinations no matter what they said. 138. By requiring the City Defendant to continue following the decisions of its LMDs without requiring any action to ensure that LMDs render lawful decisions, State Defendants have facilitated the reductions and terminations of split shift home care services. Accordingly, State Defendant Shah has acquiesced in or tacitly authorized the unlawful actions of the City Defendant, State Defendants have demonstrated a deliberate indifference to City Defendant’s widespread denials of necessary home care services. By failing to act to require the City Defendant to follow the law, and by repeatedly directing City Defendant to blindly follow the LMDs’ unlawful determinations, the State Defendants are causing unlawful reductions and terminations of home care. 139. While virtually all of the errors in City determinations in individual cases that have been brought to Fair Hearings have been corrected by the State Defendants through its administrative review, some significant number of Medicaid recipients have not and will not request hearings because of age or infirmity.
VII. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS FOR ARBITRARY AND
IRRATIONAL REDUCTIONS OF MEDICALLY NECESSARY HOME CARE SERVICES
140. City Defendant has a policy and practice of arbitrarily and irrationally reducing or discontinuing Plaintiffs’ split-shift home care services when there has been no significant change in their conditions or circumstances that would justify the reduction of services.
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Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 35 of 44
141. City Defendant has arbitrarily proposed to reduce or discontinue personal care services previously authorized for Plaintiffs to a level that is inadequate to ensure their health and safety at home.
142. Both State Defendants were on clear notice that City Defendant was engaging in a policy and practice of unlawfully reducing and discontinuing split shift services. The State Defendants failed to take obvious steps to prevent the City’s manifest misconduct, other than to reverse the City’s determinations in the individual Fair Hearing decisions of those recipients who had successfully requested State review. In addition, State Defendant Shah has continued to insist that the City Defendant follow the LMD determination, right or wrong, unless that decision is reversed by a Fair Hearing Decision, but the State has not required the City or its LMDs to follow applicable law. By failing to act and by its policy regarding the LMDs, the State Defendants have caused individuals to lose home care services to which they are legally entitled.
143. Defendants’ policy and practice of authorizing the reduction and discontinuance of home care services where there has been no change in the recipient’s condition or circumstances that would justify the reduction violates Plaintiffs’ rights under the Due Process Clause of the 14th Amendment to the United States Constitution 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).
SECOND CLAIM FOR RELIEF: AGAINST DEFENDANTS SHAH AND DOAR FOR REDUCTIONS OF HOME CARE SERVICES WITHOUT ADEQUATE NOTICE
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144. Defendants Shah and Doar have a policy and practice of reducing Plaintiffs’ home care services without providing notice that articulates any change in the individual’s circumstances or condition that would justify such a reduction.
145. Defendants Shah and Doar have a policy and practice of reducing Plaintiffs’ home care services pursuant to notices that claim that a mistake had been made in a previous authorization or authorizations, but provide no factual information regarding the alleged prior mistake.
146. Defendants Shah and Doar have a policy and practice of sending multiple notices to home care recipients that contain contradictory information, for example sending two notices on the same day, one reducing care, and the other reauthorizing the same level of care.
147. Defendants Shah and Doar’s policy and practice of authorizing the reduction of home care services where the notice fails to articulate the factual basis or reason justifying such a reduction, and of sending multiple notices with contradictory information violates Plaintiffs’ rights under 42 U.S.C. 1396a(a)(3), 42 C.F.R. §§ 435.919; 435.912, 431.210; and the Due Process Clause of the 14th Amendment to the United States Constitution.
THIRD CLAIM FOR RELIEF: AGAINST DEFENDANTS SHAH AND DOAR FOR VIOLATION OF THE ADA and SECTION 504 and their INTEGRATION MANDATES 148. Named Plaintiffs are all disabled within the meaning of the ADA and Section 504, as
they have physical and/or mental impairments that substantially limit one or more major life activity. 42 U.S.C. 12102(2); 29 U.S.C. 794; 705(20).
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Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 37 of 44
149. Named Plaintiffs are all “qualified individuals with a disability” within the meaning of the ADA, 42 U.S.C. 12131(2); 28 C.F.R. 35.104, and Section 504, because they are capable of living safely at home with adequate home care assistance and meet the income eligibility requirements to receive Medicaid home care services.
150. Additionally, relevant treating medical professionals, and often prior nursing and medical professionals affiliated with City Defendant, have recommended split-shift personal care services as a medically appropriate mode of care for Plaintiffs. Plaintiffs have not experienced a change in condition or circumstances that would alter their continued eligibility for services.
151. Defendants are the Commissioners of the State Office of Temporary and Disability Assistance and Department of Health and the New York City Commissioner of the Human Resources Administration, which are public entities that receive federal financial assistance for the administration of the Medicaid program making them subject to the provisions of Title II of the ADA and Section 504.
152. Defendants are utilizing regulatory criteria and methods of administration that have the effect of subjecting qualified individuals with disabilities such as Plaintiffs to discrimination and that have the purpose or effect of substantially impairing accomplishment of the objectives of the Medicaid home care program.
153. Defendant Doar has been authorizing the reduction and termination of the personal care services of Plaintiffs when there has been no change in their needs or circumstances justifying the reductions, and Defendant Shah has permitted and facilitated such reductions and terminations.
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Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 38 of 44
154. As a consequence of these reductions of home care, named Plaintiffs will suffer injuries and the unavoidable deterioration of their health status and conditions, necessitating additional treatment or hospitalizations, or they will be required to enter less integrated institutional settings to obtain their long-term care services. In fact, City Defendant engaged in a policy and practice of reducing and terminating split-shift services with the knowledge that the practice would result in the institutionalization of significant numbers of home care recipients.
155. Named Plaintiffs have been and can be appropriately and safely cared for in their homes with home care services authorized by Defendants without any fundamental alteration of the Defendants’ ability to provide services to other individuals with disabilities needing long-term care under the Medicaid program.
156. Defendants’ conduct subjects Plaintiffs to disability-based discrimination and impairs the accomplishment of the objectives of the Medicaid personal care program and has resulted in, will result in, or threatens to result in the unnecessary institutionalization of named 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(b)(3), (b)(8) and (d); and Section 504 of the Rehabilitation Act, 29 U.S.C. 794; 28 C.F.R. § 41.51(b)(3)(i) and (d); 45 C.F.R. § 84.4(b)(4).
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FOURTH CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS FOR VIOLATIONS OF LAW BASED ON THE APPLICATION OF
STATE REGULATIONS THAT DEFINE “CONTINUOUS CARE”
157. The Medicaid personal care regulation defining continuous, 24-hour home care services, 18 N.Y.C.R.R. § 505.14 (a)(3), is inherently irrational on its face and permits local districts to deny medically necessary services to individuals needing significant amounts of home care services to continue to safely reside in the community.
158. City Defendant is relying on the continuous care definition to deny split-shift services to Plaintiffs based on the nature of their medical condition, rather than based on their medical need for services to maintain their health and safety at home.
159. City Defendant is utilizing 18 N.Y.C.R.R. § 505.14(a)(3) to deny medically necessary home care services to individuals such as named Plaintiffs who have a medical need for frequent nighttime assistance with significant health-sustaining home care tasks because City Defendant will not consider an individual’s need for assistance with turning and repositioning or because Defendants determine that an individual needs “some” but not “total” assistance with personal care services or because the individual’s need for assistance with personal care is “predictable” or capable of being scheduled.
160. Under the language of the regulations and its application by City Defendants, an individual who needs assistance with toileting/diaper changing at unpredictable times to avoid the development of bed sores would be authorized for split-shift care while a person needing assistance with turning and positioning every two hours during the night would not be authorized for split-shift care because his needs are predictable.
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161. Under the language of the regulations and its application by City Defendant, a person needing assistance with toileting six times per night would be theoretically entitled to split-shift care, while a person who cannot move his body and requires re-positioning six times per night to avoid the development or exacerbation of bedsores would not be entitled to split-shift care because “toileting” assistance appears in the definition while assistance with “turning and positioning” does not.
162. Similarly, under the regulatory definition for split-shift care, the City Defendant will provide split-shift care to a person deemed to need “total assistance” with toileting, but deny split-shift services to a person deemed to need “some assistance” with toileting because she can theoretically get to a toilet or commode, albeit only with assistance. Thus, applying the regulatory modification, City Defendant will provide nighttime assistance with toileting to those very few individuals deemed to need “total assistance” with toileting, while the person who needs physical assistance to get to the toilet or commode would be forced to lie in her own waste during the nighttime hours because she is deemed to need only “some assistance” with toileting.
163. The regulatory language is used to provide awake, nighttime care to some individuals needing intensive nighttime assistance to maintain their health and safety in the home, while denying those Medicaid services to other recipients with the same need for such intensive nighttime assistance.
164. The regulatory language is irrational, fails to insure that medically necessary services are provided to eligible individuals, and fails to ensure that the amount duration and scope of any services available to any Medicaid recipient be the same as that made available to other Medicaid recipients.
40

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165. The continuous care regulation, 18 N.Y.C.R.R. § 505.14(a)(3), on its face and as applied, denies medically necessary home care services to some individuals with the need for such assistance many times during the nighttime hours, while denying such services to others with the same medical need for nighttime assistance, in violation of Plaintiff’s rights under 42 U.S.C. § 1396a(a)(10)(B); 42 U.S.C. § 1396a(a)(17); 42 C.F.R. §§ 440.240(a), (b)(1) and 440.230(b),(c), U.S. Const. Amend. XIV §1, and U.S. Const. Art. VI, §2.
166. Despite Defendant Shah’s instructions that the amendment to the regulation was not intended to make any substantive changes, the City Defendant through its LMDs has utilized the new regulation to justify terminations and reductions in violation of law. State Defendants know of this practice, but have failed to take any steps or to require the City Defendant to take any steps to interpret the regulation in accordance with prior state interpretations of the regulation.
FIFTH CLAIM FOR RELIEF: AGAINST ALL DEFENDANTS FOR VIOLATIONS OF THE MEDICAID ACT
167. Defendant’s policy and practice of arbitrarily and irrationally reducing Plaintiffs’ home care services when there has been no significant change in the recipient’s condition or circumstances has created a situation where some categorically needy Medicaid recipients receive the medically necessary home care they need, while others do not.
168. Defendant’s policy and practice of arbitrarily and irrationally reducing Plaintiffs’ home care services when there has been no significant change in the recipient’s condition or circumstances has created a situation whereby some medically needy home care recipients receive the services that are medically necessary even though other individuals who are categorically needy do not.
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Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 42 of 44
169. Defendant’s policy and practice of arbitrarily and irrationally reducing Plaintiffs’ splitshift home care services when there has been no significant change in the recipient’s condition or circumstances violates the “comparability of services” requirements of the Medicaid Act which require that the amount, scope and duration of any services available to any Medicaid recipients be equal to that made available to other recipients. By engaging in this policy and practice, Defendants violate Plaintiffs rights under 42 U.S.C. § 1396a(a)(10)(B)and the Supremacy Clause of the U.S. Constitution., Art. IV. SIXTH CLAIM FOR RELIEF AGAINST DEFENDANT BERLIN
170. Defendant Berlin is a necessary party to effectuate relief that Plaintiffs seek in this action. Berlin has authority to operate the Fair Hearing system, to order “Aid Continuing,” and has authority to direct that Fair Hearing principles be applied in similarly situated cases.
WHEREFORE, it is respectfully requested that this Court make and enter judgment: 1. Certifying a class pursuant to Fed. R. Civ. P. Rule 23(a) and (b)(2); 2. Declaring that Defendants’ practices and procedures result in arbitrary and irrational reductions of home care services in violation of the Medicaid Act and due process rights; 3. Declaring the Defendant Shah and Doar have failed to provide adequate notice of reductions and terminations, in violation of the Medicaid Act and due process 4. Declaring that Defendants Shah and Doars are failing to provide services to Plaintiffs, in violation of the anti-discrimination provisions and integration mandates of the ADA and Section 504;
42

Case 1:12-cv-03216-SAS Document 17 Filed 06/28/12 Page 43 of 44
5. Declaring that Defendant Shah’ regulation defining split-shift care is invalid on its face and as applied by Defendant Doar because it d fails to assure that Medicaid recipients receive personal care services equal in amount, scope, and duration to that provided to other Medicaid recipients and that are sufficient to reasonably achieve the Medicaid Act’s purpose of providing medically necessary covered services; 6. Declaring that Defendant Shah and Doar have violated the comparability provisions of the Medicaid Act by arbitrarily reducing and terminating home care services. 7. Enjoining all Defendants, separately and together, to adopt and implement rules and procedures to ensure that named Plaintiffs and members of the class will not be arbitrarily and irrationally denied necessary home care services Enjoining Defendants Shah and Doar, , from reducing Plaintiffs’ home care services without clearly identifying a reason for the decision pursuant to the regulations set out in 18 N.Y.C.R.R. § 505.14 and Due Process and including that reason in the notice to home care recipients; 8. Directing Defendant Berlin to take all necessary steps to implement the relief requested herein to the extent it involves the administration of the Fair Hearing system under her authority; 9. Awarding reasonable attorney’s fees, as provided by 42 U.S.C. § 1988(b); 42 U.S.C. 12102(2); 29 U.S.C. 794; 705(20); 10. Awarding costs and disbursements; and 11. Granting such other and further relief as this Court deems just and proper.
43

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Dated: June 27, 2012 New York, New York

_____________/s/__________________ TOBY GOLICK [TG 5365] LESLIE SALZMAN CARDOZO BET TZEDEK LEGAL SERVICES 55 Fifth Ave., 11th Floor New York, New York 10003 (212) 790-0240
YISROEL SCHULMAN BEN TAYLOR NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square, 18th Floor New York, NY 10004 212-613-5000
DONNA DOUGHERTY JASA/LEGAL SERVICES FOR THE ELDERLY IN QUEENS 97-77 Queens Blvd, Suite 600 Rego Park, New York 11374 (718) 275-5352
Attorneys for Plaintiffs

TO: ELIZABETH BERLIN, Executive Deputy Commissioner New York Office of Temporary and Disability Assistance 40 North Pearl Street Albany, New York 12243
ROBERT DOAR, Administrator New York City Human Resources Administration 180 Water Street, 25th Floor New York, New York 10038
NIRAV SHAH, M.D., Commissioner New York State Department of Health Corning Tower Empire State Plaza, Albany, NY 12237

44

 
 Case 1:12-cv-03216-SAS Document 58 Filed 08/29/12 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------)(
CHARLES STROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all persons similarly situated,

Plaintiffs, -against­

12 Cv. 3216 (SAS) (ECFCASE)

NlRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources AdministrationiDepartment of Social Services,

STIPULATION
OF VOLUNTARY
DISMISSAL AGAINST DEFENDANT BERLIN AND ORDER

Defendants.
------------------------------------------------------------------------)(
WHEREAS, this action was commenced by CHARLES STROUCHLER, SARA

CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend

NINA PINSKY ("Plaintiffs"), individually and on behalf of all persons similarly situated,

against, among other defendants, ELIZABETH BERLIN, as Executive Deputy Commissioner of

the New York State Office of Temporary and Disability Assistance ("Defendant Berlin"); and

WHEREAS, Plaintiffs filed a Complaint dated April 23, 2012 and an Amended

Complaint dated June 27,2012 containing claims against Defendant Berlin; and

WHEREAS, Plaintiffs have filed a motion for certification of a class; and

WHEREAS, Plaintiffs have determined that it is in their interest and the interest of any

class that might be certified to voluntarily dismiss claims against Defendant Berlin as provided

in Federal Rule of Civil Procedure Rule 41(a)(2);

Case 1:12-cv-03216-SAS Document 58 Filed 08/29/12 Page 2 of 3

IT IS HEREBY STIPULATED AND ORDERED that:

I. all claims raised in the Complaint and Amended Complaint against ELIZABETH

BERLIN, as Executive Deputy Commissioner of the ~w York State Office of Temporary and

Disability Assistance are hereby voluntarily dismissed; and

2. electronic or faxed copies of signatures on this Stipulation ofVo!untary Dismissal

against Defendant Berlin and Order shall have the same force and effect as original signatures.

Dated:

August 20,2012 New York, New York

TOBY GOLICK, ESQ. LESLIE SALZMAN, ESQ.
By: Q!Q ~.......Toby Golick, sq. Leslie Salzman. Esq.

MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE
CITY OFNE':~.
BY:~l4=~:::;::~-=-_

Cardozo Bet Tzedek Legal Services 55 Fifth Avenue. 11th Floor New York, New York 10003 (212) 790·0240
- and-

100 Church Street., Rm. 2-165 
 New York. New York 10007 
 (212) 788·8316
CouDseJ (or Defendant Commissioaer RobertDoar

NEW YORK LEGAL ASSISTANCE
GROUP

By:~-/~-(u __ CI1TaYiOi.Esq.
Yisroel Schulman. Esq.
Randal Jeffrey, Esq.

7 Hanover Square, 18th Floor New York, New York 10004 (212) 613-5000

-2-

Case 1:12-cv-03216-SAS Document 58

Filed

---
08/29/12

Page 3 of 3 -..•-----.~-

JASAILEGAL SERVICES FOR THE

ERIC T. SCHNEIDERMAN

::~~ ATTORNEY GENERAL OF THE STATE OFN~'y~RK '-"

.

Do Dough , Es

By' ~ft, Eoq.

97-77 Queens Boulevard, Suite 600 
 Rego Park, New York 11374 
 (718) 275-5352 


120 Broadway 
 New York, New York 10271 
 (212) 416-6075 


Counsel for Plaintiffs 


Counsel for Defendants Commissioner

Nirav Sbah. M.D•• and Executive Deputy

Commissioner Elizabeth Bertin

-3­

 
 Case 1:12-cv-03216-SAS Document 64 Filed 09/12/12 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(

CHARLES STROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all persons similarly situated,

ORDER 12 Civ. 3216 (SAS)

Plaintiffs,

- against-

NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources AdministrationlDepartment of Social Services,

Defendants.

----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

At a conference on September 10, 2012, counsel for defendant New

York City asked that I amend the preliminary injunction issued on September 4,

2012 that prohibits the City from terminating or reducing split shift care because 1 


Case 1:12-cv-03216-SAS Document 64 Filed 09/12/12 Page 2 of 3
there has been a change in the recipient's medical condition, unless the City submits to the recipient a declaration, signed by a physician who has personally examined the recipient, that details a material change in the patient's condition and certifies that because of the change the recipient is no longer eligible for split-shift care.! Having considered the arguments presented by both parties on the record, I find no good reason to amend the preliminary injunction. Numerous administrative law judges previously found that the City was improperly relying on the "change in condition" exception. Although requiring that a doctor personally examine a patient and sign a declaration may impose minor additional costs on the City, this protection is necessary to prevent further unlawful reductions or terminations.

Dated:

September 12, 2012 New York, New York

9/4112 Opinion and Order at *47 [Docket No. 61]. 2

Case 1:12-cv-03216-SAS Document 64 Filed 09/12/12 Page 3 of 3

Appearances

For Plaintiffs:

Toby Golick, Esq. Leslie Salzman, Esq. Cardozo Bet Tzedek Legal Services 55 Fifth Ave., 11 th Floor New York, NY 10003 (212) 790-0240

Donna Dougherty, Esq. JASA / Legal Services for the Elderly in Queens 97-77 Queens Blvd., Suite 600 Rego Park, NY 11374 (718) 275-5352

Yisroel Schulman, Esq. Ben Taylor, Esq. Randal Jeffrey, Esq. N.Y. Legal Assistance Group 7 Hanover Sq., 18th Floor New York, NY 10004 (212) 613-5000

For City Defendant:

For State Defendant:

David Rosinus, Jr. Gloria Yi Assistant Corporation Counsel New York City Law Department 100 Church St. New York, NY 10007 (212) 788-8316

Robert Kraft Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 24th Floor New York, NY 10271 (212) 416-8632

3 


 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(

CHARLES STROUCHLER, SARA
CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all persons similarly situated,

OPINION AND ORDER 12 Civ. 3216 (SAS)

Plaintiffs,

- against-

NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources AdministrationlDepartment of Social Services,

Defendants.

----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:

On behalf of themselves and a putative class, Charles Strouchler, Sara

Campos, and Audrey Rokaw have sued the Commissioner of the New York State

Department of Health, in his official capacity ("the State") and the Administrator

of the New York City Human Resources Administration, in his official capacity

1

(“the City”). Plaintiffs are elderly and disabled recipients of 24-hour continuous
home care services (“split-shift care”), administered by the State through its agent
the City using Medicaid dollars. They allege that defendants have improperly
sought to terminate their split-shift care – and the care of hundreds of other
recipients – in violation of federal and state law and the federal Constitution.
On September 4, 2012, after a hearing and extensive briefing by the
parties, I issued a preliminary injunction enjoining the City from reducing or
terminating split-shift care of any current recipient for any one of five specific
reasons, with limited exceptions.1 My findings of fact and conclusions of law
1 The injunction read as follows: “The City shall not reduce or terminate the split-shift care of any current recipient because: - the recipient needs only ‘some’ assistance; - the recipient’s needs can be predicted or scheduled; - the recipient’s only medical needs are turning and positioning; - there has been a change in the recipient’s medical condition, unless the City submits to the recipient a declaration, signed by a physician who has personally examined the recipient, that details a material change in the patient’s condition and certifies that because of the change the recipient is no longer eligible for split-shift care; or because - there has been a mistake in a previous diagnosis or assessment, unless the City submits to the recipient a declaration, signed by a supervising LMD, that details the mistake in the previous diagnosis and explains how it occurred.
At the same time that it sends any recipient a notice terminating or reducing care as a result of a previous mistake or change in medical condition, the City shall forward to plaintiffs’ counsel a copy of the notice. The City shall redact from the copy any personal identifying information.
The State shall, within thirty days of this order, publicly issue written clarification regarding the proper interpretation and application of the regulation with respect to the availability of split-shift care for needs that are predicted and for patients whose only nighttime need is turning and positioning.” Opinion and Order, 2012 WL 3838159, at *14-15 (S.D.N.Y. Sept. 4, 2012) (“Strouchler I”).
2

from that opinion are fully incorporated into this opinion and familiarity with those
findings and conclusions is assumed.
Plaintiffs now move for certification of the following class:
All New York City Medicaid recipients of continuous personal care services who are threatened with reduction or discontinuance of these services, or whose care has been reduced or discontinued at any time since January 1, 2011, because the City Defendant has determined or will determine that they do not meet the medical criteria for these services.2
The City raises two general objections to this class definition. First, it
argues, the proposed class definition is too broad. There are two elements to this
overbreadth. The first is that the definition “covers individuals who have not been
injured at all . . . . Recipients whose services are lawfully reduced obviously do not
2 Plaintiffs’ Reply Memorandum of Law in Support of Class Certification (“Pl. Rep. Mem.”) at 1. Plaintiffs initially sought to certify a class with the same definition, minus the word “medical.” The amended proposed class definition was meant to assuage some of the concerns raised by defendants regarding the over-breadth of the class definition.
See also Plaintiffs’ Memorandum of Law in Support of Motion for Class Certification (“Pl. Mem.”), City Defendant’s Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification (“City Mem.”), and State Defendant’s Memorandum of Law in Opposition to Motion for Class Certification (“State Mem.”).
3

have a viable legal claim against any Defendant. In spite of this, Plaintiffs’ proposed class definition encompasses them.”3 The second element of the overbreadth relates to the hundreds of recipients whom the City notified that their services would be reduced, who then appealed the City’s decision, and whose appeals were successful. The City argues that these people have not suffered an injury – because most of them received “aid continuing” and retained their services – and therefore should not be part of the class.4 The City’s proposed solution to the overly broad definition is to include in the class “only those Medicaid recipients whose split-shift services have in fact been reduced or terminated for a reason that Plaintiffs allege is unlawful.”5 The City next argues that if the Court were to use this narrower class definition, the class would be insufficiently numerous to satisfy the requirement of Federal Rule of Civil Procedure 23(a).6
In order to determine whether a preliminary injunction was appropriate, I was required to first examine the likelihood that a class would

3

City Mem. at 3.

4 Id. at 4. The State makes a similar objection regarding the breadth of the proposed class definition. See State Mem. at 11-14.

5 City Mem. at 5-6.

6 See id. at 5-7.

4

ultimately be certified. As I explained:
Given that there are hundreds of recipients of split-shift care, numerosity is satisfied. Although the facts of each class member’s diagnoses 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”; Dr. Aisner told her staff, in writing, that “I have continued concerns for those [doctors] who have not forwarded any and/or very few [split-shift] reductions to me for review as instructed,” and that “this is one indicator of your performance”; over ninetyseven percent of the decisions by the doctors in that department to reduce or terminate putative class members’ benefits have been rejected as improper by ALJs. Given this set of facts, it is highly likely that plaintiffs will be able to establish commonality.
The three named plaintiffs were threatened with reductions for precisely the same common reasons (turning and positioning, some versus total assistance, and mistake) that the City relied upon in reducing the benefits of dozens of other putative class members. As a result, they likely satisfy the typicality prong. Plaintiffs are represented by experienced and highly qualified counsel and there is no reason to think that the named plaintiffs are inadequate representatives of the class; adequacy is therefore established. Finally, it is likely that plaintiffs claims satisfy Rule 23(b)(2), which requires that plaintiffs establish that defendants 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.7
7 Strouchler I, 2012 WL 3838159, at *9 (citations omitted).
5

While nothing in the class certification briefing causes me to revisit
these preliminary conclusions, defendants’ concerns regarding the scope of the
class definition have some merit. Therefore, I will grant certification of the
following class:
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.8
The addition of the words “unlawful” and “unlawfully” fully addresses
defendants’ legitimate concerns regarding overbreadth because this class does not
include people whose services were lawfully reduced or terminated. As I explained
in the preliminary injunction order, the City’s threat of unlawful reduction of
services may well have caused irreparable harm even if, as a general matter, beneficiaries received aid during the pendency of their appeals.9 Therefore, the
8 Defendants have been enjoined from improperly seeking to reduce or discontinue the medical care of current recipients on specific grounds addressed in the preliminary injunction decision. Neither defendant has appealed that decision. Therefore, I need not include in the class individuals who “will be” subject to those acts. Any failure to comply with the terms of the injunction risks the punishment of contempt.
9 See Strouchler I, 2012 WL 3838159, at *10-12. 6

City’s proposed class of only people who have actually lost medical care is inappropriately narrow. Because the definition that I adopt includes the hundreds of people who were improperly threatened with reductions in care, it is sufficiently numerous to satisfy Rule 23(a).
The State argues that the named plaintiffs cannot represent the class because the class would include people who were terminated (or threatened with termination) on grounds different from those upon which the City sought to reduce named plaintiffs’ services. For example, unlike named plaintiffs, some class members were terminated because “(1) their temporary medical condition that resulted in a need for such services has ended; . . . . (5) they are medically unstable; or (6) they are not self-directing.”10 The State’s concerns do not make class certification inappropriate.
The Complaint alleges that the City “has begun a process of reevaluating every case in which there has been an authorization of split-shift personal care services in order to reduce and/or eliminate the City’s 24-hour caseload.”11 It alleges that this process constitutes “a policy and practice of arbitrarily and
10 State Mem. at 13. 11 Amended Complaint ¶ 6.
7

irrationally reducing or discontinuing Plaintiffs’ split-shift home care services.”12 The fact that ninety-seven percent of the City’s decisions have been reversed by administrative law judges lends powerful support to these allegations. The reasons that the City gave for seeking to reduce the care of the named plaintiffs did not include all of the reasons that the City has given in the hundreds of other cases in which its decisions to reduce or terminate care have been reversed. But that does not make the named plaintiffs inadequate or atypical representatives.13 They are “typical” because, like the class members generally, the City sought to reduce their care for unlawful reasons.
Rule 23 does not require that the facts relating to the named plaintiffs be identical to those relating to every class member. Typicality “requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events[] and each class member makes similar legal arguments to prove the defendant’s liability.”14 Therefore, the fact that the City sought to terminate some recipients based on the
12 Id. ¶ 140. 13 Cf. State Mem. at 13. 14 Central States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.3d 229, 245 (2d Cir. 2007).
8

justification that they had become “medically unstable,” does not mean that named plaintiffs cannot serve as class representatives for those recipients. The centralized actions of defendants, which I described in detail in Strouchler I, constitute a single “course of events.” The inclusion of the words “unlawful” and “unlawfully” in the class definition ensures typicality and standing.15
Defendants argue that defining the scope of the class based on defendants’ actions may lead to some uncertainty as to the identification of class members, but as I recently explained in Floyd v. City of New York, precise ascertainability of class members is unnecessary in a Rule 23(b)(2) class action. Like in that case, “[i]t would be illogical to require precise ascertainability in a suit that seeks no class damages. The general demarcations of the proposed class are clear — those people [treated] unlawfully . . . — and that definition makes the class sufficiently ascertainable for the purpose of Rule 23(b)(2).”16 The same holds true here: it is unnecessary to determine precisely whose benefits have been unlawfully

15 Plaintiffs have shown that, according to administrative law judges reviewing the City’s decisions, the City has on numerous occasions made improper use of these “medically unstable” or “not self-directing” justifications. See Pl. Rep. Mem. at 3-4, nn.3-4.

16
2012).

Floyd v. City of New York, 82 Fed. R. Serv. 3d 833, at *47 (S.D.N.Y.

9

terminated or reduced17 or who has been unlawfully threatened with terminations or reductions because “final injunctive relief or corresponding declaratory relief [will be] appropriate respecting the class as a whole.”18
Rule 23 gives district courts the power to amend class definitions or decertify classes as necessary. All counsel in this case have displayed an admirable commitment to good communication and cooperation. As the litigation proceeds, I expect that they will continue to work together and with the Court to ensure that the rights of defendants and all class members are protected.
Because the class definition, as amended by the Court, meets the requirements of Rule 23, plaintiffs’ motion for class certification is granted. The Clerk of the Court is directed to close this motion [Docket No. 46]. The parties are instructed to submit letters updating the Court on the status of the notice to potential class members by November 1, 2012.
17 Those individuals who have already suffered unlawful terminations or reductions may be entitled to reinstatement. The parties have sent notices to recipients who lost services and are awaiting responses. Depending on the responses that they receive, it may be necessary to identify an additional named plaintiff who lost services and can serve as class representative for that group. It may also be appropriate to identify sub-classes.
18 Fed. R. Civ. P. 23(b). 10

Dated:

October 5,2012 New York, New York

~-- -.. -------­

11

Appearances

For Plaintiffs:
Toby Golick, Esq. Leslie Salzman, Esq. Cardozo Bet Tzedek Legal Services 55 Fifth Ave., 11th Floor New York, NY 10003 (212) 790-0240

Yisroel Schulman, Esq. Ben Taylor, Esq. Randal Jeffrey, Esq. N.Y. Legal Assistance Group 7 Hanover Sq., 18th Floor New York, NY 10004 (212) 613-5000

Donna Dougherty, Esq. JASA / Legal Services for the Elderly in Queens 97-77 Queens Blvd., Suite 600 Rego Park, NY 11374 (718) 275-5352

For City Defendant:
David Rosinus, Jr. Gloria Yi Assistant Corporation Counsel New York City Law Department 100 Church St. New York, NY 10007 (212) 788-8316

For State Defendant:
Robert Kraft Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 24th Floor New York, NY 10271 (212) 416-8632

12

 
 Case 1:12-cv-03216-SAS Document 72 Filed 10/15/12 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- }{
CHARLES STROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all others similarly situated,
Plaintiffs,
-against­
NIRAV SHAH, M.D., as Commissioner ofthe New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources AdministrationlDepartment of Social Services,
Defendants.
---------------------------------------------------------------------- x

STIPULATION AND ORDER
12 Civ. 3216 (SAS)

WHEREAS, Medicaid personal care services ("PCS") recipient Ana Colon is a purported class member in this action;
WHEREAS, Ms. Colon has previously received continuous personal care services (also known as "split-shift services") under the Medicaid program that is administered by the New York City Human Resources Administration;
WHEREAS, Ms. Colon's PCS care was reduced from split-shift services to live-in 24­ hour personal care services (also known as "sleep-in services") due to the assessment, dated February 1, 2012, of a Local Medical Director ("LMD"), who determined that Ms. Colon required "some" rather than "total" assistance with her needs;

Case 1:12-cv-03216-SAS Document 72 Filed 10/15/12 Page 2 of 3

WHEREAS, the Preliminary Injunction does not apply to the reduction of Ms. Colon's care, because her split-shift services were reduced before September 4,2012;
WHEREAS, the parties wish to resolve the issue of Ms. Colon's current level of PCS care; and
WHEREAS, the defendants do not admit any fault or liability; NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the parties to this action, through their undersigned counsel, as follows: 1. City Defendant agrees to restore Ms. Colon's personal care services from sleep-in services to split-shift services within five days of the so-ordering of this Stipulation and Order. 2. Plaintiffs' counsel agrees to submit to City Defendant any documentation and/or information that may be necessary to implement the restoration of split-shift services to Ms. Colon.

Dated: New York, New York
October l , 2012

JASAILEGAL SERVICES FOR THE

NUCHAELA.CARDOZO

ELDERLY IN QUEENS

CORPORATION COUNSEL OF THE

CITY OF NEW YORK

~~---- By:_ DOl)()Ug ­ ~

By:---"'----+f---+_ _ _ _ _ __

97-77 Queens Boulevard, Suite 600 Rego Park. New York 11374 (718) 275-5352
CouDsel for Plaintiffs

100 Church Street. Rm. 2-165 New York, New York 10007
(212) 788-8316
Counsel for Defendant Commissioner
Robert Doar

2 


Case 1:12-cv-03216-SAS Document 72 Filed 10/15/12 Page 3 of 3
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL OF THE STATE OF NEW YORK By:__~~~=-~_______
• Kraft, Esq. 120Broad y New York. ow Yolk 10271 (212) 4]6-8632 COllasel for DefeadaDt CommluloDer Nirav Shah,M.D.
3 


 
 Case 1:12-cv-03216-SAS Document 74 Filed 11/12/12 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(

CHARLES STROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all persons similarly situated,

ORDER 12 Civ. 3216 (SAS)

Plain tiffs,

- against-

NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources Administration/Department of Social Services,

Defendants.

----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

On November 2, 2012, plaintiffs submitted a letter requesting

immediate reinstatement of the split-shift care of certain at risk individuals: (1) 16

individuals whose split-shift care has been reduced or terminated since January

1

Case 1:12-cv-03216-SAS Document 74 Filed 11/12/12 Page 2 of 3

2011, and (2) approximately 15 individuals who are currently awaiting fair hearings but who, plaintiffs argued, would not have received notices of reduction or termination if their cases had been assessed after this Court issued its preliminary injunction order dated September 4, 2012.
The State and the City submitted reply letters on November 5 and November 8, respectively, and plaintiffs submitted a sur-reply letter on November 10.
In consideration of the parties' letters, as well as of the emergency conditions in the wake of Hurricane Sandy, I hereby order the following: First, the City will have seven business days from the date of this order to reinstate the splitshift services of the 16 individuals identified by plaintiffs, until these individuals can be reassessed under the standards in GIS 12 MAI026. Second, a conference is scheduled for Wednesday, November 21,2012 at 4:30pm to resolve the remaining issues raised in the parties' letters.

Dated:

November 12,2012 New York, New York

?i.~ ~~--o ~ ~JR £"DE

'.

-... -~

- "'Shira A. CScheindlin -....~

U.S.D.1.

2

Case 1:12-cv-03216-SAS Document 74 Filed 11/12/12 Page 3 of 3

Appearances

For Plaintiffs:

Toby Golick, Esq. Leslie Salzman, Esq. Cardozo Bet Tzedek Legal Services 55 Fifth Ave., lIth Floor New York, NY 10003 (212) 790-0240

Donna Dougherty, Esq. JASA / Legal Services for the Elderly in Queens 97-77 Queens Blvd., Suite 600 Rego Park, NY 11374 (718) 275-5352

Yisroel Schulman, Esq. Ben Taylor, Esq. Randal Jeffrey, Esq. N.Y. Legal Assistance Group 7 Hanover Sq., 18th Floor New York, NY 10004 (212) 613-5000

For City Defendant:

For State Defendant:

David Rosinus, Jr. Gloria Yi Assistant Corporation Counsel New York City Law Department 100 Church St. New York, NY 10007 (212) 788-8316

Robert Kraft Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 24th Floor New York, NY 10271 (212) 416-8632

3

 
 Case 1:12-cv-03216-SAS Document 75 Filed 11/26/12 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(

CHARLESSTROUCHLER, SARA CAMPOS, by her next friend ANA SIMARD, and AUDREY ROKAW, by her next friend NINA PINSKY, individually and on behalf of all persons similarly situated,

ORDER 12 Civ. 3216 (SAS)

Plaintiffs,

- against-

NIRAV SHAH, M.D., as Commissioner of the New York State Department of Health, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources AdministrationlDepartment of Social Services,

Defendants.

----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

The relief requested by defendant City of New York, on consent, in a

letter on November 21, 2012 is hereby granted: First, the City will have until

November 30,2012 to determine if the managed long-term care ("MLTC") plans

1

Case 1:12-cv-03216-SAS Document 75 Filed 11/26/12 Page 2 of 3
referred to in the City's letter will comply with a State directive to reinstate splitshift services to those individuals already being served by an MLTC provider. Second, the City will have until December 7, 2012 to attempt to provide care to E.H. and B.B.
This Order supersedes the November 12,2012 Order [Dkt. No. 74] to the extent that the two Orders conflict.

Dated:

November 26,2012 New York, New York

2 


Case 1:12-cv-03216-SAS Document 75 Filed 11/26/12 Page 3 of 3

Appearances

For Plaintiffs:

Toby Golick, Esq. Leslie Salzman, Esq. Cardozo Bet Tzedek Legal Services 55 Fifth Ave., 11th Floor New York, NY 10003 (212) 790-0240

Donna Dougherty, Esq. JASA / Legal Services for the Elderly in Queens 97-77 Queens Blvd., Suite 600 Rego Park, NY 11374 (718) 275-5352

Yisroel Schulman, Esq. Ben Taylor, Esq. Randal Jeffrey, Esq. N.Y. Legal Assistance Group 7 Hanover Sq., 18th Floor New York, NY 10004 (212) 613-5000

For City Defendant:

For State Defendant:

David Rosinus, Jr. Gloria Yi Assistant Corporation Counsel New York City Law Department 100 Church St. New York, NY 10007 (212) 788-8316

Robert Kraft Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 24th Floor New York, NY 10271 (212) 416-8632

3 


 
 09/24/2014 1C3:a0s9e 1:1221-2c7v9-0003225516-SAS DocumentC9A6RDOFZOileLdEG0A9L/2C4L/1IN4ICPage 1 of 25 PAGE 03/27

UNITED STATES DISTRICT COURT SOUTIIBRN DISTRICT OF NEW YORK CHARLES STROUCHLER, SARA CAMPOS,
by her next friend ANA SIMARD, and AUDREY ROI<AW, by her uex.t friend
NINA PINSKY, individually and on behalf of all others similarly situated,

r·~JSDC SDNY
' DOCU1MF.Nf
DOC#: DxrR FIUID: 2

.
I:=::J,

Index No. 12 CV. 3216 (SAS)

'

.

(ECF Case)

Plaintiffs.
- against -
NIRAV SHAH) M.D., as Commissioner of the New
York State Department of Health, and
ELIZABETH BERLIN, as Ex.ecutive Deputy
Comm1~sioner of the New York State Office of
Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York
City Human Resources Administration/Department of Social Services,

STIPULATION OF SETTLEMENT
OF CLASS ACTION AND ORDER

Defendants.

WHEREAS, by Complaint dated April 24, 2012, and First Amended Complaint dated
June 27, 2012, named Plaintiffs, on behalf of themselves and a class of similarly situated persons (collectively, "Class Plaintiffs"), commenced this action ("the Action'') against Defendant NIRAV SHAH, M.D., as Commissioner of the N"w York State Department of Health {"State Defendant"), 1 Defendant ELIZABETH BERLIN> as Executive Deputy Commissioner of the
New York State Office of Temporary and Disability Assistance, and Defendant ROBERT DOAR, as Commissioner of the New York City Human Resources Administration ("City

1 Pursuant to Federal Rule of Civil Procedure Rule 25(d)(l ), Howard Zucker, M. D., as Acting Commissioner of the New York State Department of Mealth ("NYS DOH"), is automatically substituted as a party for claims originally brought aga1nst Nirav Shah, M.D., the former Commissioner of NYS DOH.

09/24/2014 1C3:a0s9e 1:1221-2c7v9-0003225156-SAS Document C9A6RDOFZiOledLE0G9A/L24C/L1I4NICPage 2 of 25 PAGE 04/27
Defendant")2 (together with State Defendant, "Defendants," and with Class Plaintiffs, "the Parties'');
WHEREAS, this action was voluntarily dismissed against Defendant Elizabeth Berlin, as Ex.ecutive Deputy Commissioner of the New York State Office of Temporary a11d Disability Assistance;
WHEREAS, City Defendant and State Defendant each answered the First Amended Complo.int and denied each allegation of wrongdoing contained in the First Amended Complaint;
WHEREAS, Plaintiffs filed motions for a preliminary injunction and for certification of a class;
WHEREAS, by Opinion and Order dated September 4, 2012 (.,September 4th Opinion")1 this Court granted Plaintiffs' application for a preliminary injunction to the extent of providing for prospective relief but declined to order retroactive relief pending further proceedings;
WHEREAS, in compliance with the September 4th Opinion, on October 3, 2012, State Defendant published GIS 12-MA/26, which directed local social services districts, including City Defendant's district, how to apply l 8 N.Y.C.R.R. § 505. 14 in a manner consistent with the September 4th Opinion;
WHEREAS, by Opinion and Order dated October 5, 2012, this Court certified a class defined as: "All New York City Medicaid recipients of continuous personal care services who, at any time since January 1, 2011, have been threatened with unlawful l"eduction 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";
2 Pursuant to Federal Rule of Civil Procedure Rule 25(d)(l ), Commissioner Steven Banks is automatically substituted as a party for claims originally brought against Robert Doar, the former Commissioner of the Buman Resources Administration_
-2-

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WHEREAS, State Defendant has drafted revisions to 18 N.Y.C.R.R. §§ 505.14 and 505.28 with the intention ofreflecting the principles expressed in the September 4th Opinion,
and has shared a confidential draft with all parties; WHEREAS, the Parties desire to resolve the issues raised in this litigation without further
proceedings and without admitting any fault or liability; WHEREAS, the Parties are entering into this Stipulation of Settlement of a Class Action
and Order ("Stipulation") solely for the purpose of settling this action on behalf of the Parties; WHEREAS, the Parties desire to settle th.is action on tenns and conditions just and fair to
all parties; WHEREAS, Cl~s Plaintiffs are represented in this action by Leslie Salzman, Esq., Toby
Golick" Esq., The New York Legal Assistance Group, and JASNLegal Services For The Elderly In Queens (collectively, ..Class Counsel"); and
WHEREAS, Class Counsel represent that they have not received, and will not receive,
any payment in connection with work done on behalf of the Class PJajntiffs in this action reglll·ding claims against the Defendants from the Class Plaintiffs or any other source apart from any payment of fees made by Defendants pursuant to this Stipulation;
NOW, THEREFORE, IT IS HEREBY STIPULATED, AGREED, AND ORDERED: l. STATE DEFENDANT'S OB.LIGATION TO PROMULGATE REVIS.ED
REGULATIONS UNDER THE STIPULATION 1. State Defendant shall amend its regulations at 18 N .Y.C.R.R. § 505.14 and
18 N.Y.C.R.R. § 505.28 by codifying the principles that appear in subparagraphs (a) through (e) of this paragraph such that:
A local social services district shall not reduce or terminate the level of care provided to any Medicaid-funded recipient of continuous personal care services or
-3-

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continuous consumer directed personal assistance ("recipient") for any of the following

reasons:

a.

the recipient needs only "some" assistance;

b.

the recipient's needs can be predicted or scheduled;

c.

the recipient's only medical needs are turning and positioning;

d. there has been a change in the recipient's medical condition, unless the

local disixict submits to the recipient a notice that identifies the change and

states why the prior sexvices are no longer needed; or

e.

there bas been a mistake in the previous assessment, unless the local

district submits to the :recipient a notice that identifies the mi.stake and

states why the prior services are not needed.

2. Within 90 days after the Effective Date of this Stipulation, State Defendant will

make its best effort~ to submit a "Notice of Proposed Rulemaking'' that proposes to amend

regulations codified at 18 N.Y.C.R.R. § 505.14 and 18 N.Y.C.R.R. § 505.28 so that they are

consistent with Paragraph 1 of this Stipulation for publication m the New York State Register as

provided \n Article 2 of the New York State Administrative Procedure Act ("SAPA"). The

process of final adoption of said regulations, including the request for and review of public

comments, will be as provided in Article 2 of the SAPA.

3.

At the conclusion of the public comment and review process provided by Article

2 of the SAPA, State Defendant will adopt regulations codified at 18 N.Y.C.R.R. § 505.14 and

18 N.Y.C.R.R. § 505.28 that are consistent with Panigraph 1 of th.is Stipulation. State Defendant shall send Clas..~ Counsel notice of the adoption of ftnal regulations under this paragraph.

-4 -

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4. State Defendant will provide training to administrative law judges who conduct

administrative fair hearings on behalf of State Defendant at the regular training cycle about

application of the ncwly-Rdopted regulations. State Defendant shall send Class Counsel notice of

scheduled dates for training of relevant administrative law judges on the application of the

newly-adopted regulations.

5. State Defendant will give notice through its normal channels to local social

services districts, managed care orge.ni1..ations, and managed long term care plans regarding the

newly~adopted regulations. Counsel for State Defendant shall send Class Counsel a copy of any

such notice dissemjnated.

Jl. CITY O.EFENDANT'S SUBSTANTIVE OBL'IGATIONS UNDER THE
STIPULATION

6. Notwithstanding the language of 18 N.Y.C.R.R. § 505.14 and 18 N.Y.C.R.R.

§ 505.28 that was in effect when the Complaint and Amended Complaint were filed and when

this Court issued its September 4th Opinion, State Defendant direCts, and City Defendant agrees

that it will comply with such direction, that, beginning on the Effective Date of this Stipulation

(as defined in paragraph 11 below), City Defendant shall not reduce or tcrmjnate the continuous

personal care services or continuous consumer directed personal assistance ("personal care

services") of any Medicaid recipient of personal care services ('•recipient") for any of the

following reasons:

a.

the recipient needs only "some" assistance~

b.

the recipi~nt's needs can be predicted or scheduled;

c.

the: recipient's only medical needs arc turning and positioning;

-5-

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d.

there has been a change in the recipient's medical condition, unless City

Defendant submits to the recipient a notice that identifies the change and

states why the prior services arc no longer needed: or

e.

there has been a mistake in the previous assessment, unless City

Defendant submits to the re:cipient a notice that identifies the mistake and

states why the prior services are not needed.

7. On the date that the newly-adopted regulations published by State Defendant

pursuant to Part l of this Stipulation become effective under the New York State Administrative

Procedure Act, City Defendant's obligations under paragraph 6 above shall terminate, unless the

implementation of the newly-adopted regulations is stayed by the Court;

8. If implementation of the newly-adopted regulations is stayed, City Defendant

shall continue to comply with para.graph 6 above until the stay ends and newly-adopted

regulations go into effect. At that time, City Defendant's obligations under parngraph 6 above

sbatl terminate.

9. Once City Defendant's obligations under paragraph 6 above tcnninate pursuant to

either paragiaph 7 or paragraph 8 above, City Defendant shall have no further substantive

obligations under this Stipulation, except as provided in paragraphs l 0, 22, 25, and 27 and in Part
lX below.

III. MONITORING

10. City Defendant agrees that within five business days of receipt of a Decision

After fair Hearing ("DAFH") affirming City Defendant's determination to reduce or terminate
continuous personal care services, it will forward a copy of the DAFH to class counsel by e-mail

transmission. Within five days ofreceipt of such DAFH. Class Counsel may reqt1est a copy of

-6-

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the fair hearing evidence packet from City Defendant. Within ten business days of such a request City Defendant will provide the evidence packet to Class Counsel by e-mail transmission. IV. RESOLUTION OF CLAIMS lN THE FIRST AMENDED COMPLAINT
11. The Effective Date of this Stipulation is the date this Court so-orders this Stipulation as fair, reasonable, and adequate as provided in Federal Rule of Civil Procedure 23(e).
l 2. As of the Effective Date of thls Stipulation, the original Complaint, the Amended Complaint, and all claims that were asserted therein by or on behalf of the named Plaintiffs and/or all Class Members, shall be, and hereby are, dismissed with prejudice. Plaintiffs' and Class Members' remedies shall be and hereby are limited to enforcement of the provisions of this Stipulation.
13. Upon the Court's approval of this Stipulation as fair, reasonable, and adequate, Plaintiffs, individually nnd on behalf of each member of tbE: certified class, and on behalf of the respective hei:r&, executors, ad:minislTators, personal representatives, successors, and assigns of each of themselves and each class member, hereby jointly and severally release and forever discharge, on the merits and with prejudice, City Defendant and State Defendant, including. without limitation, City Defendant's and State Defendant's past and present officials, employees, departments, agencies, representatives, directors, and agents, their successors and assigns, and their respective heirs, executors, administrators, personal representatives, and transferees, (collectively "the Releasees") and each of them, from any and all claims, actions, costs, expenses, and attorney's and expert fees, except as provided in Parts Vlll and lX of this Stipu.lation, whether known or unknown, foreseen or unforeseen, matured or unmntured, accroed
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or not accrued, direct or indirect, from the beginning of time through the Effective Date of this Stipulation, that Plaintiffs and the members of the certified class, and each of them. ever had,
now has or have, or can, shall, or may hereafter have against the Releasees or any of them, either alone or in any combination with othern, for, by reason of, involving, concerning, arising from or relating to the same transaction, events, or oc.cur.rences that were asserted in the CompJaint
and/or the First Amended Complaint. V. JURISDICTION OF THIS COURT WITII REGARD TO STATE D.EFENDANT
14. As of the Effective Date of this Stipulation, the jurisdiction of this Court shall terminate against State Defendant for all purposes, cxc<::ipt that the Court shall maintain continuing jurisdiction solely for the purpose of adjudicating a motion for fees as provided in paragraphs 44 or 47 of this Stipulation, and for enforcement of this Stipulation until 12 months after the adoption of final regulations pursuant to Paragraph 3 of this Stipulation. On that date, except as provided in Pare.gtapb 15 of this Stipulation, the Court's jurisdiction against State Defendant shall end, all rights arising under the provisions of this Stipulation shall tcrrrunate, and
all obligations arising LlJlder the provisions of this Stipulation sba1 I be deemed satisfied. 15. If any motion for enforcement of the provisions of this Stipulation against State
Defendant is pending on the date that the Court's jurisdiction would otherwise end pursuant to Parngraph 14 of this Stipulation, the Court's jurisdiction shall extend until either the date the Court denies .such motion, or a date set by the Court in an Order granting a motion to enforce this Stipulation, whichever is later. Any extension ofjurisdiction based on non-compliance with any provisions of tbjs Stipulation shall apply solely to those provisions for which the Court has found systemic non-compliance or failure to enact regulations pursuant to Paragraph 3 herein. In no event shall any extension or extensions ofjurisdiction extend the Court's jurisdiction beyond 24
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months after State Oefendant•s adoption of final regulations pursuant to Paragraph 3 of this
Stipulation, except with regard to a motion for attorney's fees in the event that St~te Defendant does not obtain approval from certain officials as described in Paragraph 47 of this Stipulation.
16. If, within three months from the date counsel for State Defendant notifies Class Counsel that regulations are adopted as provided in Paragraph 3 of this Stipulation, Class Counsel believe that State Defendant has adopted regulations that are not consistent with Paragraph 1 of this Stipulation, Class Counsel shall notify State Defendant's counsel in writing of the nature and specifics of any alleged failure by State Defendant to comply with Paragraph 3 of this Stipulation at least 14 days before any motion is made for enforcement of this Stipulation or to stay implementation of the challenged sections of the newly-adopted regulations. Unless otherwise resolved, Class Counsel and State Defendant's counsel shall confer within the 14 day period following notice to State Defendant's counsel in an attempt to resolve the claims. If no resolution is reached within 14 days from the date of notice, Class Plaintiffs may move this Court pursuant to Paragraph 18 of this Stipulation for an order for relief against State Defendant.
17. If Class Counsel believe that State D~fendant has systemically failed to comply with any provision contained in Part I of this Stipulation, other than those contained in paragraph 3 of this Stipulation, or as provided in paragraph 19 of this Stipulation, Class Counsel shall notify State Defendant's counsel in writing of the nature and specifics of any alleged systemic failure to comply with tbeso provisions of this Stipulation at least 30 days before any motion is made for enforcement ofth1s Stipulation. lo addition, with respect to any other motion regarding an aUeged systemic failure to comply with any other provisions of this Stipulation, Class Counsel shall notify State Defendant's counsel in writing of the nature and specifics of the alleged systemic failure to comply with these provisions of this Stipulation at least 30 days
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before any motion .is made regarding the systemic failure to comply with this Stipulation. Unless
otherwise resolved, Class Counsel and State Defendant's counsel shall confer within the 30-day period following notice to State Defendant's counsel in an attempt to resolve the claims. Ifno resolution is reached within 30 days from the date ofnotice, Class Plaintiffs may move this Court pursuant to Pa.rs.graph 18 of this Stipulation for an order for relief against State Defendant
18. After complying with the procedures set forth in Paragraphs 16 or 17 of this Stipulat;on as applicable, Class Plaintiffs may move for enforcement of or compliance with any
provision contained in Part I of this Stipulation or in paragraph 19 of this Stipulation, based on systemic nonMcompliance with said provision. Jn any such motion, Class Plaintiffs shall bear the
burden of proving that any non-compliance is not minimal and/or isolated, so as to be systemic. 19. Class Counsel will not file a motion to enforce the provisions of this Stipulation in
this case with respect to individual administrative fair hearing decisions regarding the amount of personal care services, unless such decisions demonsttate systemic noncompliance with the tenns of this Stipulation.
20. Nothing herein shall be con~trucd to prevent any individual member of the cenified class in this action from commencing a separate action or proceeding in any court of
competent jurisdiction to challenge a reduction or termination of that individual's personal care
services. VI. JURlSDIL"TION OF THIS COURT WITH REGARD TO CITY DEFENDANT
21. As of the Effective Date of this Stipulation, the juri.sd1ction of this Court shall terminate for all purposes, o:ic:cept tho.1 the Court shall maintain continuing jurisdiction solely for the purposes of enforcement ofthis Stipulation witil fifteen months after the adoption of final
regulations pursuant to Paragraph 3 of this Stipulation. On that date, except as provided in
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Paragraph 22 of this Stipulation, the Court's jurisdiction against City Defendant shall end, all rights arising under the provisions of this Stipulation against City Defendant shall terminate, and all of City Defendant's obligations arising under the provisions of this Stipulation shall be deemed satisfied.
22. If any motion is made within the period of thei Court's jurisdiction as set fonh in Paragraph 21 of this Stipulation, the Court's j.urisd.iction shall extend until the earlier of 60 days from the date that the Court's jurisdiction would otherwise end under Paragraph 21 or the date the Court denies such motion, i.10less the Court grants such motion. Any extension of jurisdiction based on non-compliance with any provisio.n(s) of this Stipulation shall apply solely to that/those provision(s) as to which the Court has found systemic non-compliance. In no event shall any extension or extensions ofjurisdiction ex.tend the Court's jurisdiction beyond thirtythree months after State Defendant's adoption of final regulations pursuant to Paragraph 3 of this Stipulation.
23. If, before the adoption of final regulations pursuant to Paragrap.h 3 of this
Stipulation, Plaintiffs believe that City Defendant has systemically failed to comply with this Stipulation, Class Counsel shall notify Defendants' counsel in writing of the nature and specifics of any alleged systemic failure to comply wW1 a provision of this Stipulation at least thirty days before any motion is made for enforcement of this Stipulation. Unless otherwise resolved, all counsel shall confer within the 30-day period following notice to Defendants' counsel in an attempt to resolve the claims. lf no resolution is reached within thirty days from the date of notic~, Plaintiffs may move this Court pursuant to Paragraphs 21 and 22 of this Stipulation for an order for relief against City Defendant.
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24. After complying with the procedures set forth in Paragraph 23 of thi3 Stipulation, Plaintiffs may move for enforcement of the provisions of this Stipulation based on systemic noncompliance with those provisions. In any such motion, Plaintiffs shall bear the burden of proving that any non-compliance is not minimal and/or isolated, so as to be systemic.
25. Pursuant to paragraph 9 above. once State Defendant has issued newly~adopted regulations, and any stay of the regulations has ended, City Defendant's substantive obligations under this Stipulation shall terminate. However, if, after State Defendant's adoption of final regulations pursuant to Paragraph 3 of this Stipulation, Plaintiffs believe that City Defendant has sy(ltemically failed to comply with the provisions of the newly-adopted regulations that incorporate the principles of Paragraph l, Class. Counsel may move for an order directing City Defendant to comply with such regulations. At least thirty days before making any such motion1 Class Counsel shall notify Defendants' counsel in writing of the nature and specifics of any alleged systemic failttre to comply with the regulations. Uule!iS otherwise resolved, all counsel shall confer within the 30-day period following .notice to Defendants' counsel in an attempt to tesolve the cla.ims. If no r0so)ution is reached within thirty days from the date of notice, Plaintiffs may move this Court for an order directing City Defendant to follow the provisions of the newly-adopted State regulations that incorporate the principles of Paragraph 1.
26. Plaintiffs' noncompliance with the time periods set forth in Paragraphs 23 or 25 of this Stipulation does not limit Plaintiffs' ability to make a motion before this Court if the alleged systemic failure to comply occurs less than thirty days prior to the scheduled termination date of this Court's jurisdiction, except tho.t, lmder these circumstances, Plaintiffs shall provide Defendants with advance notice that is reasonable under the circumstances of their intent to make a motion.
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27. Without diminishing Plaintiffs' right to seek enforcement of this Stipulation in the event of systemic non-compliance, Class Counsel may bring to the attention of City Defendant (or his successor), in writing, through the New York City Human Resources Administration's ("HR.A's") Office of Legal Affairs, individual incidents in which it is alleged that the tenns and conditions of this Stipulahon have been violated, and City Defendant, through HRA's Office of
Legal Affairs, shall provide a. written response as quickly as possible in cases of an emergency, but in all cases within ten (10) business days. Said written response sha11 outline the steps that City Defendant has taken or wilt talce to address the allegations that are brought to his attention, or will indicate that it is City Defendant's position that no action is needed at that time. .If o.t any......,.~.·
time City Defendant determines that be requires additional infoxmation or documentation from the client in order to investigate and/or resolve any issue(s) rnised, City Defendant will notify
Class Counsel as soon as practicable. Such notice will be considered a response by City
Defendant only as to the allegation(s) for which additional information is needed_ Within ten ( 10) business days following receipt of the requested information or documentation, City Defendant shall provide a further written response ouUining the steps City Defendant has taken or wiH take to address the atlegation(s) for which additional information was needed, or
indicating that it is City Defendant's position that no action is needed at that time.
28. Plaintiffs will not file a motion to enforce the provisions of this Stipulation in this case with respect to individual decisions by City Defendant regarding the amount of personal care services, unless such decisions demonstrate systemic noncompliance with the terms of this Stipulation.
29. No provision in this Stipulation shall infringe upon any individual class member's right to request a fair hearing concerning that individual's right to personal care services or to
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seek judicial relief pursuant to Article 78 of the C.P.L.R. Nothing herein shall be construed to
prevent any individual member of the certified class in this action from commencing a separate
action or proceeding in any couxt of competent jurisdiction to challenge a reduction or termination of that individual's personal care services.
Vll. GENERAL PROVISIONS
30. This Stipulation constitutes the Parties' entire agreement and its provisions resolve this action in its entirety. For the duration of the term of this Stipulation, Defendants have no additional obligations with respect to the matters settled herein, and Plaintiffs shall not impose, nor see.k to impose, nor bring any suit that seeks to impose, any additional obligations upon Defendants except as set forth 1n Paragraphs :ZO and 29 of this Stipulation.
31. The agreement set forth in this Stipulation is solely for the puxpose of settlement of the Action, and does not reflect the positions of Defendants in any other judicial or
administrative proceeding. Nothing contained in this Stipulation shall be deemed, implied or construed to be a policy, custom. practice, or procedure of Defendantc;1, t.be State and City of New
York (including, but not limited to, any and all agencies, departments, and subdivisions thereof), nor any of their officials, employees, or agents.
32. This Stipulation contains all of the terms and conditions agreed on by Class Plaintiffs and Defendants. No oral agreement entered into at any time nor any other written agreement entered into prior to the execution of this Stipulation shall be deemed to exist, to bind Class Plaintiffs or either Defendant, or to vary the terms and conditions set forth in this Stipulation.

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33. The Parties acknowledge that this Stipulation bas been fully negotiated by all Parties and the Parties agree that for pwposcs of construction no party is deemed to be the drafter thereof
34. The obligations contained in this Stipulation may be amended only by written agreement of the affected parties.
35. If any date or period of time described in this Stipulation falls or ends on a public holiday or on a weekend, the date or period of time shall be extended to the next business day.
36. ln the event of any intervening change in federal or state law, rule, or regulation that becomes effective dming the term of this Stipulation that Defendants believe requires them to act in any way inconsistent with the provisions of this Stipulation, Defendants' counsel shall notify Class Counsel and the Parties shall attempt to come to an agreement as to any
modification of the Stipulation that is required by the changes in federal or state law, rule, or
regulation. If, after thirty days, the Parties have not been able to agree, the dispute shall be submitted to the Court pursuant to Federal Rule of Civil Procedure 60(b).
37. Class C0tmsel shall protect the confidentiality of all iuformation concerning class members that is provided by Defendants while complying with the p.rovisions of this Stipulation and shall not disclose such information to any individual other than in compliance with State and Federal Laws, except to the extent necessary in this action to enforce any right that any Class Member may have jn this action pursuant to the terms of this Stipulation, or the rights of any Class Member to file a New York Civil Practice Law and Rules article 78 petition seeking reljef from an adverse action or to otherwise seek relief as set forth in Paragraphs 20 and 29 of this Stipulation. Nothing herein shall be construed to prohibit a class member from using any
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document(s) obtained from any source, other than a production by City Defendant pursuant to Paragraph 10 of this Stipulation, for any puxpose.
38. Upon the Effective Date, this Stipulation shall be final and binding upon the Partiei;.1 their successors·, and their assigns.
39. Ally notice, report or communication required by or made pursuant to the provisions of this Stipulation shall be sent by electronic mail to all of the people listed below:
D. Alan Rosinus wsinus@law,nvc.gov Bcnjo.roin W. Taylor btaylor@nvl21g.org Eileen M. Connor econnor@nylag.org Donna B. Dougherty ddougherty@jasa.org Leslie Salzman §alzman@yµ.edu Toby Golick tgolick@yu.edu Robert L. .Kraft Robert.kra.ft@ag.ny. goy; and Jane E. Mccloskey Jem07@hosltlbstate.ny. u;;i
40. Any party may change its designated addressee(s) or address(es) by written notice to the other parties.
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VIII. ATTORNEYS' FEES FROM STATE .DEFENDANT

41. The agreement set out i.n Part VITI oftbis Stipulation resolves all cl.aims for

attorney's fees, costs, and disbursements made by Class Plaintiff..ci against State Defendant

accruing from the beghming of time through the end of the Court's jurisdiction in accordance

with the provisions of Part V of this St1pu1ation.

42. The State of New York shall pay to Class Counsel the sum of three-hundred fifty-

thousand dollars ($350,000.00) CState Fee Payment''), as set forth in Paragraph 43 of this

Stipulation, in full and complete satisfaction of any and all claims, allegations, or causes of

action against State Defendant and the State of New York (including, but not limited to, any and

zill agencies, departments. and subdivisions thereof), and all of their present and fonner

principals, officers, directors, members, trustees, shareholders, affiliates, employees, agents,

attorneys, insurers, subdivisions, subsidiaries, heirs, administwtors, and assigns, whether in their

individual oi: official capacities, for attorney's fees, costs, disbursements and expenses incurred

by Class Plaintiffs for any and all legal counsel who have at any time represented Class Plaintiffs

in the Action as well as in connection with any other proceeding, administrative, judicial or

otherwise, and any other claim or action arising from1 based upon, or alleging any of the acts, transactions, occurrences, or omissions asserted in the Action., for wodc done from the beginning

of time through the end of the Court's jurisdiction in accordance with the provisions of Part V of

this Stipulation.

43. The State Fee Payment shall be made by separate checks, for each of which an

1.R.S. Form 1099 shall be issued, in the amounts listed below, made payable to the following

individuals or entities and sent to the following addresses:

Toby Golick, Esq. Cardozo Bet Tzedek Le al Services

$77,500.00

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55 Fifth Avenue

,

New York, New York 10003

I

Leslie Salzman, Esq.

s11;soo.oo

Cardozo .Bet Tzedek Legal Services

55 Fifth Avenue

New York, New York 10003

I ..

· New York Legal Assistance Group

$125,000.00

Be:~ Taylor, Esq.

!

Eileen Connor, Esq.
7 Hanover Square, l 8111 floor

:

New York, New York 10004

'

.. .. '
JASA/tegal Services for the Elderly In Queens .$70,000.00

Donna Dougherty, .Esq.

r

. 97-77 Queens Boulevard, Suite 600

j'

: Rego ·Park, New York 1 l374

;

..

I

44. In the event that the Court grants one or more motions filed by Class Plaintiffs to
enforce any of State Defendant's obligations WJder this Stipulation, Class Plaintiffs may seek
reasonable attorney's fees, costs, and disbursemeots from State Defendant accrued in bringing such motion in an amount not to exceed $50,000 in the agg1:0gate for all such motions, in
addition to the State Fee Payment.
45. Nothing contained in Part VIII of this Stipulation shall be deemed to be an
agreement or an admission by State Defendant as to the reasonableness of the number of hours
spent OJ the partjcular hourly rates claimed by Class Counsel, or that the Class Plaintiffs will be entitled to any attorney's fees, costs, and disbursements in connection with the Action in the future other than as provided in Paragraph 44 of this Stipulation, and State Defendant does not waive any defenses to uny application by Class Plaintiffs for additional fees as provided in
paragraph 44 of thi!l Stipulation.

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46. In the event that the payment of the settlement amounts referenced in Paragraph
43 of this Stipulation have not been made by the one hundred twentieth (I 20th) day after receipt by the Office of the Attomey General ofa "So Ordered" copy of this Stipulation, entered into the record by the Clerk of the Court, together with all other docum.entation required tmder Paragraph 47 of this Stipulation, interest on any part of the settlement amowits not paid by the one hundred twentieth (120th) day shall accrue at the statutory rate prescribed by 28 U.S.C. § 1961, commencing on the one hundred twenty-first ( l 21st) day.
47. Payment of the settlement amounts referenced in Paragraph 43 of thjs Stipulation
is subject to the approval of all appropriate New York State officials, in accordance with Section
17 of the New York Public Officers Le.w. Class Plaintiffs and Cle.ss Counsel agree to execute and deliver all necessary and appropriate vouchers and other docuxnentation requested with
respect to obtaining such approval and effectuating payment. In the event that such approval is
not obtained, then Part VIII of this Stipulation shall be null, void, and of no further force and effect, and Plaintiffs reserve their right to move the Court for fees notwithstanding any other provision of this Stipulation.
48. Class Plaintiffs and Class Counsel e.gree that any taxes on the payments, and/or any interest or penalties on the taxes on the payments made pursuant to Part VUI of this Stipulation shall be their sole and complete responsibility. Class Plaintiffs and Class Counsel shall have no claim, right, or cause ofaction against State Defendant, the State of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof), or any of their officials, employees, or agents, whether in theit individual or official capacities, on account of such taxes, interest, or penalties, and agree that they will defend, indemnify and hold harmless State Defendant. the State of New York (including, but not limited to, any and all
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agencies, departments, and subdivisions thereof), and any of their officials, employees, or agents,
whether in their individual or official capacities, for the satisfaction of any such taxe.s, interest, or penalties.
49. Class Plaintiffs and Class Counsel agree that neither State Defendant, the State of New York (including, but not limited to, any snd all agencies, departments, and subdivisions thereof), nor any of their officials, employees, or agents, whether in their individual or official
capacities, shall be responsl.bte for any liens of any kind (including, but not limited to, any and
all workers' compensation, tax., or child support liens) which may attach to the payments set forth in Part Vlll of this Stipulation. Class Plaintiffs and Class Counsel shell have no claim, right, or cause of action against State Defendant, the St11te of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof), or any of their officials, employees, or agents, whether in their individual or official capacities, on account ofsuch liens,
and agree that 1hey will defend, indemnify, and hold harmless State Defendant, the State of New
York (including, but not limited to. any and all agencies, departments, and subdiv:isions thereof),
and any of their officials, employees, or agents, whether in their individual or official capacities, for the satisfaction of any such liens.
50. In consideration of the payment of the State Fee Payment, Cl.ass Plaintiffs, on behalf of themselves and their heirs~ executors, administrators, successors, fllld assigns, hereby jointly and severally release and forever discharge, on the merits and with prejudice, State Defendant, the State of New York (including, but not limited to, any and aJI agencies, departments, and subdivisions th<i:reof), and all of their pt:esent and former principals, officers, directors, members, trustees, shareholders, affiliates, employees, agents, attorneys, insurers, subdivisions, subsidiaries, heirs, administrators, and assigns, whether in their individual or
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official capacities, from any and all claims for attorney's fees, costs, and disbursements arising from or in connection with the Action e:tcept as provided in Paragraph 44 of this Stipulation, and this Stipulation shall be deemed a release to that effect. lX. ATTORNEYS1 FEES FROM CITY DEFENDANT
51. 111is agreement set out in Part IX of ~his Stipulation resolves. all claims for
attorney's fees, costs and disbursements accruing from the beginning of time through the end of the Court'sjuri~diction. in accordance with t.he provisions of Part VI of this Stipulation. In the event that, after this Stipulation is signed by the Parties, Plaintiffs file one or more motions as
permitted by this Stipulation, they may seek attorneys' fees and costs arising from or in connection with s11ch motion(s). Notwithstanding the foregoing, Plaintiffs may not seek or be awarded fees of more than one-hundred thousand dollars and zero cents ($100,000.00) in the aggregate for all such motions, in addition to the amount payable by City Defendant pursuant to
paragraph 55 ofthjs Stipulation for work performed up to the Effective Date.
52. Nothing contained i.n Part IX of this Stipulation shall be deemed to be an agreement or an admission by any Defendant as to the reasonableness of the number of hours spent or the particular hourly rate~ claimed by Class Counsel, or that Class Plaintiffs will be entitled to any attorney's fees, costs, or disbursements in connection with this action in the future
other than as provided in Para.graph 51 of this Stipulation, and City Defendant does not waive
any defenses to any application by Class Plaintiffs therefor.
53. The agreement regarding payment of attorney's fees, costs, and disbursements set forth in Part IX of this Stipulation is solely for the pm-pose of settlement of this action end does not reflect the posit.ions ofthe Parties in any other judicial or administrative proceeding. Nothing
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contained in Part IX of this Stipulation shall be deemed, implied, or construed to be a policy,
custom, practice, or procedure of the City of New York, City Defendant, or any City agency.
54. Pe.rt IX of this Stipulation contains all ofthe tenns and conditions agreed on by
the Parties regarding the payrnent by City Defendants of attorney's fees, costs, and disbursements for work done io this action. No oral agreement entered into at any time nor nny other written agreement entered into before the execution of this Stipulation shall be deemed to exist~ to bind the Parties, or to vary the terms and conditions set forth in this Stipulation.
55. The City of New York shell pay the sum of three hundred and fifty thousand dollars and zero cents ($3501000.00) (''City.Fee Payment") to Class Counsel, and Class Plaintiffs hereby agree to a.cce_pt said payment in full satisfaction of all claims for attorney's fees, costs,
and disbursements in, arising from, or in connection with this action from the beginning of time
through the Effective Date. 56. Payment of the City Fee Payment shall be made by checks, issued in the amounts
specified herejn, payable to the following persons and entities, a.t the addresses shown below:

Toby Golick, Esq.

$77,500.00

Cardozo Bet Tzedek Legal Services

55 Fifth Avenue

New York, NY 10003

Leslie Salzman, Esq.

$77,500.00

Cardozo Bet Tzedek Legal Services

55 Fifth Avenue

New York, NY 10003

New Yo·rk Legal Assistance Group
Ben Taylor, Esq.
E;leen Connor, Esq. 7 Hanover Square, 181h tloor
New Yofk, NY 10004

$125,000.00

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JASA/Legal Services for the Elderly Tn Queens
Donna Dougherty, Esq.
97-77 Queens Boulevard, Suite 600 Rego Park, New York 11374

$70,000.00

57, In consideration of the payment of the City Fee Payment, the Plaintiffs individually and on behalf of each member of the class, and on behalf of the respective heirs; executors, administrators, personal representatives, successors, and assigns of each of themselves and each of the memb()rS of the class hereby jointly and severally release and forever discharge City Defendant and the City ofNew York, including, without limitation, its past and present officials, employees, departments, agencies, representatives, directors, snd agents, their successors and assigns, and the.irrespective heirs, executors, administrators. personal representative, and transferees, and each of them, from any and ell claims for fees, costs, and
disbu~ements arising from or in connection with the above-captioned action from the beginning
of time through the Effective Date, and this Stipulation shall be deemed a release to that effect. Class Counsel shall also execute releases consistent with this paragraph, delivery of which to City Defendant's counsel shall be e. condition precedent to payment of the City Fee Payment.
58. Plaintiffs shall promptly execute and deliver to City Defendant's counsel tbe document~ and infonnation reasonably necessary to effectuate the City Fee Payment, which in.eludes any requisite payment vouchers.
59. In lhe event that the payment of U1e settlement amounts referenced in Paragraph 56 of this Stipulation have not been made by the one hundred twentieth (120th) day after receipt by the Office of the Corporation Counsel of the City ofNew York of a "So Ordered" copy of this Stipulation, entered into the record by the Clerk of the Court, together with all other documentation required tmder Paragraph 58 of this Stipulation, interest on any part of the

- 23 -

09/24/2014 1C3a:0s9e 1:122-1c2v7-90030225156-SAS Document 9C6ARDFOZilOedLE0G9A/L24C/1L4INICPage 24 of 25 PAGE 25/27

socth:men\ a11,oum'B not paid by the onci hundred twentieth ( l 20th) duy sholl accrue Ill the statutory nuc prc!cribed by 28 U.S.C. § 1961, commcnctng on the one hundrod twenty-first (12)9t)de.y.

Dated: New Yock, New York
MD)' £1_, 201"1

New York Legal Asai!U11nce Group
(;l)ss Coun$el

By:_~ f~ l- - Ben 1 oylor, E,,q.

Eileen Connur Esq.

·

7 Hanover Squuc

New York, NY 10004

Dated: New York, New York
Mriyl;J_, 2014
JASAI Legal Services For The Elderly ln
Q\lccns
Clw CQunsol
~~~'~sAoc- S\tite~ 97-71 Q\\eens Boulovard
Rego Parle, Now York I D74
s (718) 286-1 I .S

D111od: New York. New York Moy j.J., 2014
Toby Golick, E.sq. !;.)MS CO\lil§cl
___ . . - \
'·'\ ~ )'--::::::__
Cardozo Bet Tzedck Legal Scrvice3 S5 Fillh Avenue, I Ith Floor New York, New York 10003 (212) 790-0240

D11ccd: Now York. New York May·i.Z, 2014
Losllo Salzmon, Esq.
Class Counsel
t~ / f ' /, __....._...& '_ ---Ca dozo Bet T2cdoO,~gnl Services 55 Fifth Avonue, 11 lh Floor New York, Now York I 0003 (212) 790-0240

- 24 -

09/24/2014 1C3:a0s9e 1:1221-2c7v9-0003225516-SAS DocumentC9A6RDOFZOileLdEG0A9L/2C4L/1IN4ICPage 25 of 25 PAGE 27/27

Dated: Nf1111t Yorlc. New York MayTh20l4

Dated: Now Ymk., Naw Yortc
May Ztj_, 1014

£ric T. Schaoiderman. Attomey Geneml ofthe Sb* o(New York
Attomu fOr scaio Dofgodapc

Zldiary w. Cami'. Corporation Cminlel
ofthn City ofNow York ACComax for City Dcfqufar

By: ....~;:£__._'.~
David ;,r.f;~inldJi.
A11tatant Corporatioll Couniel.
100 Chu.di Stniet, 2.. PIOOI'
New Yoit. Nnw Yort 10007 (212) 356-0877

SO ORDERED:

-

 
 Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 1 of 13
CLOSED,COMPLEX−CSMGMT,ECF,SIMILAR
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:12−cv−03216−SAS

Strouchler et al v. Shah et al Assigned to: Judge Shira A. Scheindlin Similar Case: 1:96−cv−00788−SAS Cause: 42:1396 − Tort Negligence Plaintiff Charles Strouchler individually and on behalf of all others similarly situated
Plaintiff Sara Campos by her next friend Ana Simard;

Date Filed: 04/24/2012 Date Terminated: 09/16/2014 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
represented by 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
Donna Bernadette Dougherty Jasa/Legal Services For The Elderly In Queens 97−77 Queens Boulevard Suite 600 Rego Park, NY 10013 (718)−286−1515 Fax: (718)−275−5352 Email: ddougherty@jasa.org ATTORNEY TO BE NOTICED
Eileen Mathews Connor New York Legal Assistance Group 7 Hanover Square New York, NY 10004 (212) 613−5000 Fax: (212) 714−7870 Email: econnor@nylag.org ATTORNEY TO BE NOTICED
Leslie Salzman Cardozo Bet Tzedek Legal Services 55 Fifth Avenue, 11th Floor New York, NY 10003 (212)−790−0240 Fax: (212)−790−0256 Email: salzman@yu.edu ATTORNEY TO BE NOTICED
Toby Golick Cardozo Bet Tzedek Legal Services 55 Fifth Avenue, 11th Floor New York, NY 10003 (212)−790−0240 Fax: (212)−790−0256 Email: tgolick@yu.edu ATTORNEY TO BE NOTICED
represented by Eileen Mathews Connor (See above for address)

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 2 of 13

individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
Leslie Salzman (See above for address) ATTORNEY TO BE NOTICED

Toby Golick (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Audrey Rokaw by her next friend Nina Pinsky; individually and on behalf of all others similarly situated

represented by Eileen Mathews Connor (See above for address) ATTORNEY TO BE NOTICED
Leslie Salzman (See above for address) ATTORNEY TO BE NOTICED

Toby Golick (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Nirav Shah, M.D. as Commissioner of the New York State Department of Health
Defendant Elizabeth Berlin as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance TERMINATED: 08/29/2012
Defendant Robert Doar as Administrator of the New York City Human Resources Administration/Department of Social Services

represented by Robert Lewis Kraft Office of the Attorney General, New York State 120 Broadway New York, NY 10271 212−416−8632 Fax: 212−416−6075 Email: robert.kraft@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Lewis Kraft (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Alan Rosinus , Jr. New York City Law Department 100 Church Street New York, NY 10007 (212) 356−0877 Fax: (212) 788−0877 Email: arosinus@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gloria Mihee Yi Nyc Law Department 100 Church Street New York, NY 10007 (212)−788−0898 Fax: (212)−788−0940 Email: gyi@law.nyc.gov

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 3 of 13 ATTORNEY TO BE NOTICED

Date Filed 04/24/2012 04/24/2012 04/24/2012 04/24/2012 04/24/2012 04/24/2012
04/26/2012 04/27/2012 04/27/2012 04/27/2012 04/27/2012 05/01/2012 05/18/2012 05/23/2012
05/25/2012

# Docket Text
1 ENDORSEMENT on Declaration in Support of Request to Proceed In Forma Pauperis, I.F.P. REQUEST IS GRANTED. (Signed by Judge Denise L. Cote, Part I on 4/24/2012) (mro) (Entered: 04/25/2012)
2 COMPLAINT against Elizabeth Berlin, Robert Doar, Nirav Shah, MD. Document filed by Charles Strouchler, Sara Campos, Audrey Rokaw.(mro) (Entered: 04/25/2012)
SUMMONS ISSUED as to Elizabeth Berlin, Robert Doar, Nirav Shah, MD. (mro) (Entered: 04/25/2012)
CASE REFERRED TO Judge Shira A. Scheindlin as possibly similar to 1:96−cv−00788−SAS. (mro) (Entered: 04/25/2012)
Case Designated ECF. (mro) (Entered: 04/25/2012)
3 STANDING ORDER IN RE PILOT PROJECT REGARDING CASE MANAGEMENT TECHNIQUES FOR COMPLEX CIVIL CASES IN THE SOUTHERN DISTRICT OF NEW YORK (See M−10−468 Order filed November 1, 2011). This case is hereby designated for inclusion in the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York (the Pilot Project), unless the judge to whom this case is assigned determines otherwise. This case is designated for inclusion in the Pilot Project because it is a class action, an MDL action, or is in one of the following Nature of Suit categories: 160, 245, 315, 355, 365, 385, 410, 830, 840, 850, 893, or 950. The presiding judge in a case that does not otherwise qualify for inclusion in the Pilot Project may nevertheless designate the case for inclusion in the Pilot Project by issuing an order directing that the case be included in the Pilot Project. The description of the Pilot Project, including procedures to be followed, is attached to this Order. (Signed by Judge Loretta A. Preska on 10/31/2011) (mro) (Entered: 04/25/2012)
4 NOTICE OF APPEARANCE by Benjamin Wait Taylor on behalf of Charles Strouchler (Taylor, Benjamin) (Entered: 04/26/2012)
5 NOTICE OF APPEARANCE by Donna Bernadette Dougherty on behalf of Charles Strouchler (Dougherty, Donna) (Entered: 04/27/2012)
CASE ACCEPTED AS SIMILAR. Create association to 1:96−cv−00788−SAS. Notice of Assignment to follow. (pgu) (Entered: 04/27/2012)
6 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 04/27/2012)
Magistrate Judge Gabriel W. Gorenstein is so designated. (pgu) (Entered: 04/27/2012)
7 NOTICE OF APPEARANCE by Robert Lewis Kraft on behalf of Elizabeth Berlin, Nirav Shah, MD (Kraft, Robert) (Entered: 05/01/2012)
MEMORANDUM TO DOCKET CLERK: TRO HELD ON 5/18/2012. (djc) (Entered: 06/05/2012)
8 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from David A. Rosinus, Jr. dated 5/22/2012 re: I write to respectfully request that City Defendant's deadline for submitting opposition papers to Plaintiffs' TRO request be extended by 48 hours, from the close of business today to the close of business on Thursday, May 24, 2012. ENDORSEMENT: Request granted. Defendant shall submit its response by COB Thursday. (Signed by Judge Shira A. Scheindlin on 5/22/2012) (lmb) (Entered: 05/23/2012)
9 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from David A. Rosinus, Jr. dated 5/24/12 re: Counsel for the City defendant requests that opposition papers to Plaintiffs' TRO request be extended to 5/25/12.

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 4 of 13

05/25/2012 05/25/2012 05/25/2012
05/31/2012 06/06/2012 06/12/2012
06/20/2012
06/20/2012 06/28/2012
06/28/2012 06/28/2012 06/29/2012
07/06/2012

ENDORSEMENT: Request granted. The opposition is due May 25, 2012 by the close of business. So ordered. ( Responses due by 5/25/2012) (Signed by Judge Shira A. Scheindlin on 5/24/2012) (mro) Modified on 5/29/2012 (mro). (Entered: 05/25/2012)
10 NOTICE OF APPEARANCE by David Alan Rosinus, Jr on behalf of Robert Doar (Rosinus, David) (Entered: 05/25/2012)
11 NOTICE OF APPEARANCE by Gloria Mihee Yi on behalf of Robert Doar (Yi, Gloria) (Entered: 05/25/2012)
12 ENDORSED LETTER addressed to Judge Shira A Scheindlin from Gloria M Yi dated 5/25/2012 re: Request to extend time to respond to plaintiffs' application for a TRO to 5/29/2012. ENDORSEMENT: Request granted. Defendant's opposition is now due by 5:00 pm on 5/29/2012. ( Response due by 5/29/2012) (Signed by Judge Shira A. Scheindlin on 5/25/2012) (cd) (Entered: 05/29/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 5/31/2012. (pl) (Entered: 06/06/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 6/6/2012. (Landers, Rigoberto) (Entered: 07/13/2012)
13 STIPULATION AND ORDER CONCERNING TEMPORARY RELIEF: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, through their attorneys, as follows : 1. The terms of this Stipulation and Order shall be in effect from the date that the Court so−orders it until the Court hears Plaintiffs' application for a preliminary injunction. And as set forth in this Order. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 6/12/2012) (ama) (Entered: 06/12/2012)
14 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from David A. Rosinus, Jr. dated 6/20/2012 re: Counsel requests an extension of time for City defendant to respond to the complaint. ENDORSEMENT: Request granted. City defendants may respond to plaintiffs amended complaint within twenty−one days of service. If no amended complaint is served, City defendants must respond to the Complaint by July 6, 2012. (Signed by Judge Shira A. Scheindlin on 6/20/2012) (jfe) (Entered: 06/25/2012)
Set/Reset Deadlines: Robert Doar answer due 7/6/2012. (jfe) (Entered: 06/25/2012)
15 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Robert L. Kraft dated 6/27/2012 re: State defendants request until July 6, 2012, to answer the operative complaint, or until 21 days after service should an amended complaint be served. ENDORSEMENT: Request granted. Defendants' Answer to the original complaint is due by July 6, 2012. If plaintiffs file and serve an Amended Complaint, defendants' Answer will be due 21 days after service., Elizabeth Berlin answer due 7/6/2012; Nirav Shah, MD answer due 7/6/2012. (Signed by Judge Shira A. Scheindlin on 6/27/2012) (lmb) (Entered: 06/28/2012)
17 FIRST AMENDED COMPLAINT amending 2 Complaint against Elizabeth Berlin, Robert Doar, Nirav Shah, MD.Document filed by Charles Strouchler, Sara Campos, Audrey Rokaw. Related document: 2 Complaint filed by Sara Campos, Charles Strouchler, Audrey Rokaw.(pl) (ml). (Entered: 06/29/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 6/28/2012. (pl) (Entered: 07/06/2012)
16 REVISED SCHEDULING ORDER: Defendants' opposition papers in response to Plaintiffs' motion for a preliminary injunction shall be served by July 6, 2012; Plaintiffs' reply papers in support of their motion for a preliminary injunction shall be served by July 23, 2012. The hearing will proceed as scheduled on July 26 and July 27, 2012. (Signed by Judge Shira A. Scheindlin on 6/28/2012) (djc) (Entered: 06/29/2012)
18 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − FIRST MOTION for Preliminary Injunction. Document filed by Charles Strouchler. Return Date set for 7/26/2012 at 10:00 AM.(Golick, Toby) Modified on

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 5 of 13

07/06/2012 07/06/2012 07/06/2012 07/06/2012 07/06/2012 07/06/2012 07/06/2012 07/06/2012 07/06/2012
07/06/2012
07/06/2012

7/6/2012 (ldi). (Entered: 07/06/2012)
19 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Opposition re: 18 FIRST MOTION for Preliminary Injunction.. Document filed by Elizabeth Berlin, Nirav Shah, MD. (Kraft, Robert) Modified on 7/6/2012 (ldi). (Entered: 07/06/2012)
20 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Robert L. Kraft in Opposition re: 18 FIRST MOTION for Preliminary Injunction.. Document filed by Elizabeth Berlin, Nirav Shah, MD. (Attachments: # 1 Exhibit A−C)(Kraft, Robert) Modified on 7/6/2012 (ldi). (Entered: 07/06/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Toby Golick to MANUALLY RE−FILE Document No. 18 Order to Show Cause, with the Orders and Judgments Department. This document is NOT filed via ECF. (ldi) (Entered: 07/06/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Robert Lewis Kraft to RE−FILE Document 19 Memorandum of Law in Opposition to Motion, 20 Declaration in Opposition to Motion. ERROR(S): Documents linked to filing error. Re−File using the (non−motion) events found under the event list Other Answers. (ldi) (Entered: 07/06/2012)
21 FILING ERROR − DEFICIENT DOCKET ENTRY − AFFIDAVIT of Margaret Willard in Opposition re: 18 FIRST MOTION for Preliminary Injunction.. Document filed by Elizabeth Berlin, Nirav Shah, MD. (Attachments: # 1 Exhibit A−F, # 2 Exhibit G, # 3 Exhibit H−L)(Kraft, Robert) Modified on 7/6/2012 (ldi). (Entered: 07/06/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Robert Lewis Kraft to RE−FILE Document 21 Affidavit in Opposition to Motion. ERROR(S): Document linked to filing error. (ldi) (Entered: 07/06/2012)
22 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION for Preliminary Injunction. Document filed by Charles Strouchler. Return Date set for 7/26/2012 at 10:00 AM. (Attachments: # 1 Affidavit Salzman Declaration, # 2 Affidavit Bogart Declaration, # 3 Affidavit Keilin Declaration, # 4 Affidavit Jeffrey Declaration)(Golick, Toby) Modified on 7/9/2012 (ldi). (Entered: 07/06/2012)
23 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Opposition re: 22 FIRST MOTION for Preliminary Injunction. (City Defendant's Memorandum of Law). Document filed by Robert Doar. (Rosinus, David) Modified on 7/9/2012 (ldi). (Entered: 07/06/2012)
24 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of CELESTE LEWIS in Opposition re: 22 FIRST MOTION for Preliminary Injunction.. Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Page from Plaintiff Sara Campos's HRA case record, # 2 Exhibit B: Pages from Plaintiff Audrey Rokaw's HRA case record, # 3 Exhibit C: New York State Department of Health's 12 OHIP/ADM−1)(Rosinus, David) Modified on 7/9/2012 (ldi). (Entered: 07/06/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Toby Golick to RE−FILE Document 22 FIRST MOTION for Preliminary Injunction. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Declaration in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. NOTE: You must sign the Motion before re−filing. (ldi) (Entered: 07/09/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney David Alan Rosinus to RE−FILE Document 23 Memorandum of Law in Opposition to Motion, 24

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 6 of 13

07/09/2012 07/09/2012
07/09/2012 07/09/2012 07/09/2012 07/09/2012 07/09/2012 07/09/2012
07/16/2012
07/17/2012 07/20/2012 07/20/2012 07/21/2012 07/21/2012 07/21/2012
07/23/2012

Declaration in Opposition to Motion. ERROR(S): Documents linked to filing error. (ldi) (Entered: 07/09/2012)
25 MOTION for Preliminary Injunction. Document filed by Charles Strouchler. Return Date set for 7/26/2012 at 10:00 AM.(Golick, Toby) (Entered: 07/09/2012)
26 DECLARATION of Leslie Salzman in Support re: 25 MOTION for Preliminary Injunction.. Document filed by Charles Strouchler. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Golick, Toby) (Entered: 07/09/2012)
27 DECLARATION of Valerie Bogart in Support re: 25 MOTION for Preliminary Injunction.. Document filed by Charles Strouchler. (Attachments: # 1 Exhibit A)(Golick, Toby) (Entered: 07/09/2012)
28 DECLARATION of Nina Keilin in Support re: 25 MOTION for Preliminary Injunction.. Document filed by Charles Strouchler. (Golick, Toby) (Entered: 07/09/2012)
29 DECLARATION of Randal S. Jeffrey in Support re: 25 MOTION for Preliminary Injunction.. Document filed by Charles Strouchler. (Attachments: # 1 Exhibit A)(Golick, Toby) (Entered: 07/09/2012)
30 Exhibit List Document Index to Motion. Document filed by Charles Strouchler.(Golick, Toby) (Entered: 07/09/2012)
31 MEMORANDUM OF LAW in Opposition re: 25 MOTION for Preliminary Injunction. (City Defendant's Memorandum of Law). Document filed by Robert Doar. (Rosinus, David) (Entered: 07/09/2012)
32 DECLARATION of CELESTE LEWIS in Opposition re: 25 MOTION for Preliminary Injunction.. Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Page from Plaintiff Sara Campos's HRA case record, # 2 Exhibit B: Pages from Plaintiff Audrey Rokaw's HRA case record, # 3 Exhibit C: New York State Department of Health's 12 OHIP/ADM−1)(Rosinus, David) (Entered: 07/09/2012)
33 CONFIDENTIALITY STIPULATION AND QUALIFIED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Shira A. Scheindlin on 7/16/2012) (lmb) (Entered: 07/16/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Preliminary Injunction Hearing held on 7/17/2012. (rjm) (Entered: 08/01/2012)
34 REPLY MEMORANDUM OF LAW in Support re: 25 MOTION for Preliminary Injunction.. Document filed by Charles Strouchler. (Salzman, Leslie) (Entered: 07/20/2012)
35 REPLY AFFIRMATION of Benjamin Taylor in Support re: 25 MOTION for Preliminary Injunction.. Document filed by Charles Strouchler. (Attachments: # 1 Exhibit Exhibits A−C, Taylor Reply Dec.)(Salzman, Leslie) (Entered: 07/20/2012)
36 MEMORANDUM OF LAW in Opposition re: 25 MOTION for Preliminary Injunction. Originally filed as #19. Refiled per 07/06 docket order. Document filed by Elizabeth Berlin, Nirav Shah, MD. (Kraft, Robert) (Entered: 07/21/2012)
37 DECLARATION of Robert L. Kraft in Opposition re: 25 MOTION for Preliminary Injunction.. Document filed by Elizabeth Berlin, Nirav Shah, MD. (Attachments: # 1 Exhibit A−C)(Kraft, Robert) (Entered: 07/21/2012)
38 AFFIDAVIT of Margaret Willard in Opposition re: 25 MOTION for Preliminary Injunction.. Document filed by Elizabeth Berlin, Nirav Shah, MD. (Attachments: # 1 Exhibit A−F, # 2 Exhibit G, # 3 Exhibit H−L)(Kraft, Robert) (Entered: 07/21/2012)
39 MEMORANDUM OF LAW in Support re: 25 MOTION for Preliminary Injunction.. Document filed by Charles Strouchler. (Golick, Toby) (Entered: 07/23/2012)

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 7 of 13

07/25/2012 07/26/2012 07/30/2012 07/30/2012 07/30/2012 08/01/2012 08/02/2012 08/02/2012 08/02/2012 08/02/2012 08/02/2012 08/02/2012 08/06/2012
08/06/2012
08/08/2012

40 RULE 26 DISCLOSURE.Document filed by Charles Strouchler.(Golick, Toby) (Entered: 07/25/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 7/26/2012 re: 25 MOTION for Preliminary Injunction filed by Charles Strouchler. (cd) (Entered: 08/03/2012)
41 DEPOSITION of Michael Eisner taken on July 24, 2012.Document filed by Charles Strouchler. (Attachments: # 1 Deposition Transcript Designations, # 2 Exhibit Deposition Exhibits)(Dougherty, Donna) (Entered: 07/30/2012)
42 DEPOSITION of Anita Aisner taken on July 19, 2012.Document filed by Charles Strouchler. (Attachments: # 1 Exhibit Designated Pages of Deposition of Anita Aisner, M.D., July 19, 2012)(Salzman, Leslie) (Entered: 07/30/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 7/30/2012. (rjm) (Entered: 08/01/2012)
43 DECLARATION of NILZA LOPEZ in Opposition re: 25 MOTION for Preliminary Injunction.. Document filed by Robert Doar. (Rosinus, David) (Entered: 08/01/2012)
44 ANSWER to 17 Amended Complaint,. Document filed by Nirav Shah, MD.(Kraft, Robert) (Entered: 08/02/2012)
45 DEPOSITION of Michael Eisner taken on July 24, 2012.Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Cross−designated pages from deposition transcript of Michael Eisner)(Rosinus, David) (Entered: 08/02/2012)
46 FIRST MOTION to Certify Class. Document filed by Charles Strouchler. Responses due by 8/30/2012 Return Date set for 9/13/2012 at 10:00 AM.(Salzman, Leslie) (Entered: 08/02/2012)
47 DEPOSITION of Anita Aisner taken on July 19, 2012.Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Corrections to Deposition, dated July 30, 2012, # 2 Exhibit B: Cross−designated pages from deposition transcript of Anita Aisner)(Yi, Gloria) (Entered: 08/02/2012)
48 DECLARATION of Toby Golick in Support re: 46 FIRST MOTION to Certify Class.. Document filed by Charles Strouchler. (Attachments: # 1 Exhibit Exh. A, Part I, to Golick Declaration, # 2 Exhibit Exh. A, Part II to Golick Declaration)(Salzman, Leslie) (Entered: 08/02/2012)
49 MEMORANDUM OF LAW in Support re: 46 FIRST MOTION to Certify Class.. Document filed by Charles Strouchler. (Salzman, Leslie) (Entered: 08/02/2012)
50 TRANSCRIPT of Proceedings re: HEARING held on 7/17/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (212) 805−0300. 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 8/30/2012. Redacted Transcript Deadline set for 9/10/2012. Release of Transcript Restriction set for 11/8/2012.Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 08/06/2012)
51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 7/17/12 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...Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 08/06/2012)
52 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Charles Strouchler.(Salzman, Leslie) (Entered: 08/08/2012)

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 8 of 13

08/08/2012 08/08/2012
08/08/2012 08/14/2012
08/14/2012
08/16/2012 08/29/2012 08/30/2012 08/30/2012 09/04/2012
09/10/2012 09/10/2012

53 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Robert Doar.(Rosinus, David) (Entered: 08/08/2012)
54 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from David Alan Rosinus, Jr. dated 8/6/2012 re: Counsel requests that City Defendant's time to respond to the Amended Complaint be extended by one week until 8/15/12. ENDORSEMENT: Request granted. The finding of fact and conclusion of law are due on Wednesday, August 8. No further extensions will be granted. Answer is due August 15, 2012. (Signed by Judge Shira A. Scheindlin on 8/8/2012) (jfe) (Entered: 08/09/2012)
Set/Reset Deadlines: Robert Doar answer due 8/15/2012. (jfe) (Entered: 08/09/2012)
55 TRANSCRIPT of Proceedings re: HEARING held on 5/18/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Martha Drevis, (212) 805−0300. 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 9/7/2012. Redacted Transcript Deadline set for 9/17/2012. Release of Transcript Restriction set for 11/16/2012.Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 08/14/2012)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 5/18/12 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...Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 08/14/2012)
57 ANSWER to 17 Amended Complaint,. Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Notice of Intent to Reduce for Sara Campos dated 2/10/12, # 2 Exhibit B: Notice of Intent to Reduce for Audrey Rokaw dated 3/12/12, # 3 Exhibit C: Form W−410 for Audrey Rokaw dated 11/17/11)(Rosinus, David) (Entered: 08/16/2012)
58 STIPULATION OF VOLUNTARY DISMISSAL AGAINST DEFENDANT BERLIN AND ORDER : All claims raised in the Complaint and Amended Complaint against ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance are hereby voluntarily dismissed. (Signed by Judge Shira A. Scheindlin on 8/27/2012) (jar) (Entered: 08/29/2012)
59 MEMORANDUM OF LAW in Opposition re: 46 FIRST MOTION to Certify Class.. Document filed by Nirav Shah, MD. (Kraft, Robert) (Entered: 08/30/2012)
60 MEMORANDUM OF LAW in Opposition re: 46 FIRST MOTION to Certify Class.. Document filed by Robert Doar. (Rosinus, David) (Entered: 08/30/2012)
61 OPINION AND ORDER # 102302 re: 25 MOTION for Preliminary Injunction filed by Charles Strouchler. For the reasons stated above, plaintiffs' motion for a preliminary injunction is granted in part. I decline to order the reinstatement of split−shift care to all those whose services have been reduced or terminated, pending additional submissions by the parties. A conference is scheduled for September 10, 2012 at 4:00 p.m., ( Status Conference set for 9/10/2012 at 04:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 9/4/2012) (lmb) Modified on 9/12/2012 (ft). (Entered: 09/04/2012)
62 NOTICE OF APPEARANCE by Eileen Mathews Connor on behalf of Sara Campos, Audrey Rokaw, Charles Strouchler (Connor, Eileen) (Entered: 09/10/2012)
63 REPLY MEMORANDUM OF LAW in Support re: 46 FIRST MOTION to Certify Class.. Document filed by Charles Strouchler. (Golick, Toby) (Entered: 09/10/2012)

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 9 of 13

09/10/2012 09/12/2012 09/14/2012
09/14/2012 09/14/2012
09/14/2012 09/24/2012 10/03/2012
10/05/2012

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/10/2012. (jfe) (Entered: 09/27/2012)
64 ORDER: Having considered the arguments presented by both parties on the record, I find no good reason to amend the preliminary injunction. Numerous administrative law judges previously found that the City was improperly relying on the "change in condition" exception. Although requiring that a doctor personally examine a patient and sign a declaration may impose minor additional costs on the City, this protection is necessary to prevent further unlawful reductions or terminations. (Signed by Judge Shira A. Scheindlin on 9/12/2012) (lmb) (Entered: 09/12/2012)
65 TRANSCRIPT of Proceedings re: HEARING held on 7/26/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Toni Stanley, (212) 805−0300. 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 10/9/2012. Redacted Transcript Deadline set for 10/18/2012. Release of Transcript Restriction set for 12/17/2012.Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 09/14/2012)
66 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 7/26/12 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...Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 09/14/2012)
67 TRANSCRIPT of Proceedings re: HEARING held on 7/27/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Rebecca Forman, (212) 805−0300. 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 10/9/2012. Redacted Transcript Deadline set for 10/18/2012. Release of Transcript Restriction set for 12/17/2012.Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 09/14/2012)
68 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 7/27/12 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...Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(McGuirk, Kelly) (Entered: 09/14/2012)
69 INTERNET CITATION NOTE: Material from decision with Internet citation re: 61 Memorandum &Opinion, Set Hearings. (sj) (Entered: 09/25/2012)
70 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from David Alan Rosinus, Jr. dated 10/2/2012 re: I write to respectfully request that the Court so−order the enclosed proposed Order, which will ensure that HRA will continue to be able to comply with the preliminary injunction that this Court issued in its Opinion and Order dated September 4, 2012 (the "Preliminary Injunction"). ENDORSEMENT: I decline to authorize the proposed relief. As previously argued by the State I lack the authority to abrogate a regulation promulgated by the New York State legislation. The Clerk is directed to docket the October 2 and October 3 letters submitted by the City and State. (Signed by Judge Shira A. Scheindlin on 10/3/2012) (lmb) (Entered: 10/03/2012)
71 OPINION AND ORDER # 102465 re: 46 FIRST MOTION to Certify Class filed by Charles Strouchler. Because the class definition, as amended by the Court, meets the requirements of Rule 23, plaintiffs' motion for class certification is

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 10 of 13

10/15/2012
11/02/2012 11/12/2012
11/26/2012
11/28/2012 11/28/2012 01/10/2013
01/10/2013
03/14/2013

granted. The Clerk of the Court is directed to close this motion [Docket No. 46]. The parties are instructed to submit letters updating the Court on the status of the notice to potential class members by November 1, 2012. (Signed by Judge Shira A. Scheindlin on 10/5/2012) (lmb) Modified on 10/16/2012 (ft). (Entered: 10/05/2012)
72 STIPULATION AND ORDER: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the parties to this action, through their undersigned counsel, as follows: (1.)City Defendant agrees to restore Ms. Colon's personal care services from sleep−in services to split−shift services within five days of the so−ordering of this Stipulation and Order. (2.)Plaintiffs' counsel agrees to submit to City Defendant any documentation and/or information that may be necessary to implement the restoration of split−shift services to Ms. Colon. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 10/15/2012) (ama) (Entered: 10/16/2012)
73 STATUS REPORT. Letter Document filed by Charles Strouchler. (Attachments: # 1 Exhibit class members redacted summary and notices)(Dougherty, Donna) (Entered: 11/02/2012)
74 ORDER: that in consideration of the parties' letters, as well as of the emergency conditions in the wake of Hurricane Sandy, I hereby order the following: First, the City will have seven business days from the date of this order to reinstate the split shift services of the 16 individuals identified by plaintiffs, until these individuals can be reassessed under the standards in GIS 12 MA/026. Second, a conference is scheduled for Wednesday, November 21, 2012 at 4:30 pm to resolve the remaining issues raised in the parties' letters. ( Status Conference set for 11/21/2012 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 11/12/2012) (pl) (Entered: 11/13/2012)
75 ORDER: The relief requested by defendant City of New York, on consent, in a letter on November 21, 2012 is hereby granted: First, the City will have until November 30, 2012 to determine if the managed long−term care ("MLTC") plans referred to in the City's letter will comply with a State directive to reinstate split − shift services to those individuals already being served by an MLTC provider. Second, the City will have until December 7, 2012 to attempt to provide care to E.H. and B.B. This Order supersedes the November 12, 2012 Order [Dkt. No. 74] to the extent that the two Orders conflict. (Signed by Judge Shira A. Scheindlin on 11/26/2012) (djc) Modified on 11/26/2012 (djc). (Entered: 11/26/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/28/2012. (pl) (Entered: 12/18/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/28/2012. (pl) (Entered: 12/18/2012)
76 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/30/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Toni Stanley, (212) 805−0300. 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 2/4/2013. Redacted Transcript Deadline set for 2/14/2013. Release of Transcript Restriction set for 4/15/2013.Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(Rodriguez, Somari) (Entered: 01/10/2013)
77 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7/30/12 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...Filed In Associated Cases: 1:12−cv−03216−SAS, 1:96−cv−00788−SAS(Rodriguez, Somari) (Entered: 01/10/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 3/14/2013. (lmb) (Entered: 03/19/2013)

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 11 of 13

06/25/2013
07/11/2013 07/12/2013 07/15/2013 07/15/2013 08/14/2013 08/23/2013 09/17/2013 09/30/2013 10/18/2013 10/29/2013 11/08/2013 11/12/2013

78 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Leslie Salzman, dated 6/25/2013 re: the parties are currently scheduled to appear before you tomorrow at 4:30 p.m. for a status conference. We have been actively engaging in settlement negotiations. Request an additional week or two to have a final stipulation settlement. We are hopeful that if we have an additional week or two it is very likely that we will have a final stipulation of settlement. Consequently, we are requesting that tomorrow's conference be adjourned for two weeks to July 10th at 4:30 p.m. ENDORSEMENT: Request to adjourn the June 26th conference is granted and rescheduled to July 10, 2013 at 4:30 p.m. ( Status Conference set for 7/10/2013 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 6/25/2013) (ja) (Entered: 06/26/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 7/11/2013. (Reily, James) (Entered: 08/05/2013)
79 ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Gabriel W. Gorenstein. *The week of August 5 would be the best. (Signed by Judge Shira A. Scheindlin on 7/11/2013) (ja) (Entered: 07/12/2013)
NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge Debra C. Freeman. Please note that this is a reassignment of the designation only. (pgu) (Entered: 07/15/2013)
NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Debra C. Freeman, for Settlement. Magistrate Judge Gabriel W. Gorenstein no longer referred to the case. (pgu) (Entered: 07/15/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held on 8/14/2013. ( Telephone Conference set for 8/23/2013 at 02:00 PM before Judge Bernard A. Friedman.). (sc) (Entered: 08/16/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held on 8/23/2013, (Tentative Settlement Conference set for 10/29/2013 at 02:00 PM before Magistrate Judge Debra C. Freeman., Telephone Conference set for 9/17/2013 at 11:30 AM before Magistrate Judge Debra C. Freeman.). (sc) (Entered: 08/26/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference via telephone held on 9/17/2013, ( Telephone Conference set for 9/30/2013 at 02:00 PM before Magistrate Judge Debra C. Freeman.). (sc) (Entered: 09/17/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference via telephone held on 9/30/2013, ( Telephone Conference set for 10/18/2013 at 02:00 PM before Magistrate Judge Debra C. Freeman.). (sc) (Entered: 10/01/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference via telephone held on 10/18/2013, ( Telephone Conference set for 10/29/2013 at 02:00 PM before Magistrate Judge Debra C. Freeman.). (sc) (Entered: 10/21/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference was held on 10/29/2013 via telephone. ( Telephone Conference was set for 11/8/2013 at 10:00 AM before Magistrate Judge Debra C. Freeman.). (sc) (Entered: 10/30/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference via telephone held on 11/8/2013. (sc) (Entered: 11/13/2013)
80 LETTER MOTION to Adjourn Conference addressed to Judge Shira A. Scheindlin from David Alan Rosinus, Jr. dated November 12, 2013. Document filed by Robert

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 12 of 13

11/13/2013 11/19/2013 11/26/2013 01/16/2014 02/07/2014 05/27/2014 05/27/2014 06/06/2014
06/06/2014 06/12/2014 06/13/2014
06/16/2014

Doar.(Rosinus, David) (Entered: 11/12/2013)
81 REVISED SCHEDULING ORDER granting 80 Letter Motion to Adjourn Conference. So Ordered.11/14/2013 Pretrial Conference reset for 11/19/2013 at 3:30 PM before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 11/13/2013) (cd) Modified on 11/14/2013 (cd). (Entered: 11/14/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/19/2013. (Reily, James) (Entered: 12/03/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/26/2013. (Reily, James) (Entered: 12/03/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/16/2014. (Bloomfield, Clifford) (Entered: 01/16/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 2/7/2014. (Bloomfield, Clifford) (Entered: 02/07/2014)
82 SETTLEMENT AGREEMENT . Document filed by Charles Strouchler.(Dougherty, Donna) (Entered: 05/27/2014)
83 NOTICE of Stipulation and Order of Notice in Class Action. Document filed by Charles Strouchler. (Attachments: # 1 Exhibit Notice of Proposed Class Settlement, # 2 Exhibit List of Legal Services Providers)(Dougherty, Donna) (Entered: 05/27/2014)
84 NOTICE of of Proposed Class Action Settlement Under 28 U.S.C. § 1715. Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Complaint dated April 23, 2012, # 2 Exhibit B: First Amended Complaint dated June 27, 2012, # 3 Exhibit C: Proposed Notice of Proposed Class Action Settlement, # 4 Exhibit D: Proposed Stipulation of Settlement of Class Action and Order, # 5 Exhibit E: Side letter fully executed as of May 28, 2014, # 6 Exhibit F: Proposed Stipulation and Order of Notice in Class Action)(Rosinus, David) (Entered: 06/06/2014)
85 CERTIFICATE OF SERVICE of Notice of Proposed Class Action Settlement Under 28 U.S.C. § 1715 served on the Attorney General of the United States on June 6, 2014. Service was made by mail. Document filed by Robert Doar. (Rosinus, David) (Entered: 06/06/2014)
86 LETTER addressed to Judge Shira A. Scheindlin from Donna Dougherty dated June 12, 2014 re: Fairness Hearing date. Document filed by Charles Strouchler.(Dougherty, Donna) (Entered: 06/12/2014)
87 MEMO ENDORSEMENT on re: 86 Letter filed by Charles Strouchler. ENDORSEMENT: The fairness hearing is scheduled for Tuesday, September 9, 2014 at 4:30 PM., ( Fairness Hearing set for 9/9/2014 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 6/12/2014) (lmb) (Entered: 06/13/2014)
88 STIPULATION AND ORDER OF NOTICE IN CLASS ACTION: IT IS HEREBY STIPULATED AND AGREED, by and among the parties to this action through their undersigned attorneys, that delivery of a copy of the Notice of Proposed Class Action Settlement, annexed hereto as Exhibit A, shall be made as follows: 1) Within the timeframe set forth by 28 U.S.C. 1715(b), City Defendant shall deliver by mail a copy of the Notice of Proposed Class Action Settlement, along with all other required materials, to the United States Attorney General, pursuant to 28 U.S.C. 1715(b). 2. A. City Defendant shall deliver by mail a copy of the Notice of Proposed Class Action Settlement to each person who, at any time since January 1, 2011, received 24−hour split shift personal care services and to whom a notice of reduction or discontinuance of such services was issued; B. Plaintiffs' counsel shall deliver by regular mail or e−mail transmission a copy of the Notice of Proposed Class Action Settlement to the 24 area legal services providers listed in Exhibit B for the purpose of providing information and assistance to class members. The Court finds that completion of the notification set forth in paragraphs 1 and 2 above at least 30 days before the date of the fairness hearing constitutes reasonable notice to class members who will be bound by the settlement pursuant to Fed. R. Civ. P. 23(c)(2) &(e)(1). (Signed by Judge Shira A.

Case: 1:12-cv-03216-SAS As of: 04/06/2015 02:40 PM EDT 13 of 13

08/13/2014 09/04/2014 09/05/2014
09/05/2014 09/05/2014 09/09/2014 09/12/2014 09/12/2014
09/12/2014 09/16/2014
09/16/2014 09/24/2014

Scheindlin on 6/16/2014) (lmb) (Entered: 06/16/2014)
89 CERTIFICATE OF SERVICE of class notice served on class members on August 8, 2014. Service was made by mail. Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Notice of Proposed Class Action Settlement)(Rosinus, David) (Entered: 08/13/2014)
90 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − FIRST MOTION to Approve Class Action Settlement Affirmation in Support. Document filed by Charles Strouchler. Return Date set for 9/9/2014 at 04:30 PM.(Dougherty, Donna) Modified on 9/5/2014 (db). (Entered: 09/04/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Donna Bernadette Dougherty to RE−FILE Document 90 FIRST MOTION to Approve Class Action Settlement Affirmation in Support. Use the event type Affirmation in Support (non−motion) found under the event list Other Answers. (db) (Entered: 09/05/2014)
91 AFFIDAVIT OF SERVICE of Notice of Proposed Class Action Settlement served on Legal Services Offices on June 17, 2014. Service was made by Mail. Document filed by Charles Strouchler. (Salzman, Leslie) (Entered: 09/05/2014)
92 AFFIRMATION of Donna Dougherty in Support re: 82 Settlement Agreement. Document filed by Charles Strouchler. (Salzman, Leslie) (Entered: 09/05/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/9/2014. (Bloomfield, Clifford) (Entered: 09/09/2014)
93 JOINT LETTER addressed to Judge Shira A. Scheindlin from David Alan Rosinus, Jr. dated September 12, 2014 re: submission of proposed Order and executed Stipulation of Settlement. Document filed by Robert Doar. (Attachments: # 1 Exhibit A: Proposed Order, # 2 Exhibit B: Executed Stipulation of Settlement)(Rosinus, David) (Entered: 09/12/2014)
94 ORDER: The Court hereby approves the settlement in this action, as set forth in the Stipulation of Settlement of Class Action and Order that the parties filed in this action on May 27, 2014 (Dkt. 82) ("the Stipulation of Settlement"), and finds, pursuant to Fed. R. Civ. P. 23(e)(2), following the Class having received proper and adequate notice in accordance with this Court's June 16, 2014 Order and the fairness hearing held on September 9, 2014, that the settlement is fair, reasonable, and adequate and meets the standards set forth by the Second Circuit in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974). The Clerk of Court is directed to enter judgment dismissing the Amended Complaint pursuant to the terms of the Stipulation of Settlement. The Court will retain jurisdiction over this action, and the parties thereto, to the extent set forth in the Stipulation of Settlement. (Signed by Judge Shira A. Scheindlin on 9/12/2014) (tn) (Entered: 09/12/2014)
Transmission to Judgments and Orders Clerk. Transmitted re: 94 Order, to the Judgments and Orders Clerk. (tn) (Entered: 09/12/2014)
95 CLERK'S JUDGMENT: That for the reasons stated in the Court's Order dated September 12, 2014, the Amended Complaint is hereby dismissed pursuant to the terms of the Stipulation of Settlement, the Court shall retain jurisdiction over this action, and the parties thereto, to the extent set for the Stipulation of Settlement. (Signed by Clerk of Court Ruby Krajick on 9/16/2014) (Attachments: # 1 Notice of Right to Appeal, # 2 Notice of Right to Appeal)(dt) (Entered: 09/16/2014)
Terminate Transcript Deadlines (dt) (Entered: 09/16/2014)
96 STIPULATION OF SETTLEMENT OF CLASS ACTION AND ORDER: This Stipulation constitutes the Parties' entire agreement and its provisions resolve this action in its entirety as further set forth in this order. (Signed by Judge Shira A. Scheindlin on 9/24/2014) (lmb) (Entered: 09/24/2014)