177 F.R.D. 143 | S.D.N.Y. | 1997
AMENDED OPINION & ORDER
This is a class action challenging the design and implementation of task-based assessment (“TBA”) programs, used throughout New York State to determine the amount of personal care services hours provided to eligible Medicaid applicants and recipients. The individually named Plaintiffs are recipients and applicants of personal care services who allege that TBA programs systemically fail to provide medical care mandated by federal law.
This Amended Opinion is issued following Plaintiffs’ Motion for Reconsideration, which was timely filed on August 18,1997. In that motion Plaintiffs sought two amendments to the original Opinion: (1) a clarification as to whether the notice to applicants and recipients must include the distribution of the total hours authorized; and (2) a deletion of the discussion regarding the viability of a private right of action under 42 C.F.R. § 440.230(b) on the ground that it was unnecessary for the Court to reach this issue in view of its substantive holdings. Both of these requests have been granted in this Amended Opinion. Accordingly, the August 4, 1997 Opinion and Order is hereby withdrawn and is superseded by this Opinion and Order.
1. FACTUAL BACKGROUND
A. Personal Care Services in New York State
Medicaid, established under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq. (“Medicaid Act”), provides medical assistance to individuals whose income and resources are insufficient to meet the costs of medical care, and who are either age 65 or over, blind, disabled, or members of families with dependent children. In New York, the State is the agency responsible for the implementation of the State’s Medicaid plan. N.Y. Soc. Serv. L. § 363-a(l). The City, Nassau, Suffolk, and Westchester administer. the Medicaid program in their respective districts under the supervision of the State. Each local social services district has discretion to manage its own personal care services program within the guidelines of federal and state regulations. N.Y. Soc. Serv. Law § 62(1).
“Medical assistance” is defined to include “personal care services furnished ... in a home or other location.” 42 U.S.C. § 1396d(a)(xi)(24); N.Y. Soc. Serv. L. § 365-a(2)(e). New York has opted to include the federal option for home care services, including personal care services, in its State Medicaid plan. See 42 U.S.C. § 1396d(a)(xi)(24); 42 C.F.R. § 440.170(f); N.Y. Soc. Serv. Law § 365-a(2)(e). “Personal care services” include assistance with tasks associated with the “activities of daily living,” or “ADLs,” which include bathing, toileting, assistance with medications, personal hygiene, dressing, feeding and light housekeeping and shopping. 18 N.Y.C.R.R. §§ 505.14(a)(6)(i)(a), (ii)(a). Such assistance must be medically necessary and “essential to the maintenance of the patient’s health and safety in his or her own home.” N.Y. Soc. Serv. L. § 365-a(2)(e); 18 N.Y.C.R.R. §§ 505.14(a)(1),(4).
A non-self-directing patient is still eligible for home care services if another self-directing individual or agency is willing to provide the direction of the home care attendant on behalf of the non-self-directing patient “on an interim or part-time basis.” Id. § 505.14(a)(4)(ii)(a)-(e). The State has described the characteristics of a non-self-directing recipient as someone who may be delusional or agitated, have a tendency to wander or to expose himself or herself to hot water, extreme cold or misuse of appliances in the home, or may exhibit behaviors such as hiding medications, or taking medications without his or her physician’s knowledge. See State Exh. 2, Administrative Directive to Commissioners of Social Services (92 ADM-49), dated December 1,1992.
State regulations permit the authorization for eligible recipients of up to “continuous, 24-hour personal care services,” or “uninterrupted care, by more than one person, for a patient who ... requires 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(3). In part to defray the obvious costs of 24-hour home care services, the State legislature has imposed a fiscal cap on home care cases where the cost of medically necessary care exceeds 90% of the cost of a residential health facility and the individual does not meet one of five exceptions. N.Y. Soe. Serv. L. § 367-k.
In the last five years, Intervenor-Defendants the City, Nassau, Suffolk and Westchester have all implemented TBA programs or use TBA as an assessment instrument for home care services within their districts. The City’s program was implemented as recently as 1996. Although the specifics of TBA assessment procedures vary from district to district, the basic assessment process involves a medical request for home care from the applicant’s or recipient’s physician, which is followed by an assessment by a nurse and social worker in the recipient’s or applicant’s home. See Transcript of Preliminary Injunction Hearing (“Tr.”) 784-88. The assessing nurse uses a TBA form, which differs from district to district, to assess the needs of the patient. The form includes a list of various tasks, e.g. toileting, bathing, etc., the amount of assistance needed as to each task, and may include the time of day the tasks are performed. See, e.g., City Exh. B; Nassau Exh. D. Regardless of whether “task times,” or the amount of time suggested for each task, appears on the TBA form itself, each district provides suggested “task times” to the nurses performing assessments. The City adds an additional step to its assessments process, by sending its three assessment tools — the physician’s request, the nurse’s assessment and the social work assessment — to what is called a medical review team (“MRT”), see Tr. 580, which makes the final determination of what the plan of care should be. Tr. 581-83. If there are discrepancies between the documents, the MRT takes steps to resolve them before finalizing the plan of care. Tr. 578-79, 721, 761, 1014.
The recipient or applicant is then given notice of the decision about what services the agency will provide. Both are entitled to appeal the agency’s decision via the fair hearing process. 42 C.F.R. § 431.220; N.Y. Soc. Serv. Law § 22.
B. Individual Plaintiffs
1. Sidonie Bennett
Plaintiff Sidonie Bennett is 80 years old and resides in Kew Gardens, Queens. She
In September 1996, Mrs. Bennett’s case was converted from skilled nursing care to personal care services. Her physician’s medical request for home care recommended 24-hour care. The nurse’s assessment noted that Mrs. Bennett had a need for total assistance with toileting, changing of diapers, transferring, and some assistance with indoor mobility, and recommended 73.3 hours of weekly task time. She was approved for 73 hours of service (or slightly over 10 hours per day) in a single visit, with a personal emergency response system (“PERS”), which would have resulted in her being left alone for two hours per day. A second nurse’s assessment was completed in October 1996. The nurse recommended increased tasks, finding that Mrs. Bennett experiences tremors, is at risk of falling, is very confused at times and needs constant supervision.
Mrs. Bennett requested a fair hearing to challenge the City’s failure to provide her with split-shift services, or 24-hour care from more than one aide. She received aid continuing pending the decision. The City contends that it believed her daughter would continue to pay for twelve hours per day of service when it assessed Mrs. Bennett. The City further contends that when it learned her daughter was no longer able to provide this care, it offered to reassess Mrs. Bennett.. Mrs. Bennett’s daughter refused the City’s offer to reassess, and the case proceeded to a fair hearing. The fair hearing decision remanded the case to the agency and directed it to reassess Mrs. Bennett. Mrs. Bennett has since been reassessed and currently receives split-shift services.
2. Christos Gouvatsos
Plaintiff Christos Gouvatsos was a 59 year old man suffering from end stage renal disease. He resided in Bayside, New York. At the time this lawsuit commenced, Mr. Gouvatsos had suffered a stroke, was hospitalized, and was not receiving home care services.
3. Juana Rodriguez
Plaintiff Juana Rodriguez is 79 years old and suffers from Alzheimer’s disease. She resides in Rockville Center in Nassau County. Until May 1996, Mrs. Rodriguez had been receiving 24-hour split-shift care from Nassau’s long term home health care program. Those services were terminated when the total cost of that care exceeded the maximum cost per day allowable under Medicaid. Mrs. Rodriguez then began to receive personal care services. The nurse’s assessment in May 1996 indicated that Mrs. Rodriguez needed total assistance with grooming, bathing, dressing, toileting, feeding, transferring and housekeeping. The total time allotted for these tasks was 67.16 hours per week, or 9.59 hours per day. She was authorized for 24-hour sleep in care.
Mrs. Rodriguez requested a fair hearing on May 6, 1996, to challenge Nassau’s failure to provide her with split-shift care. The fair hearing examiner affirmed Nassau’s determination that sleep-in care was appropriate, in part based on testimony from the assessing nurse that Mrs. Rodriguez’s nighttime needs could be met by a sleep-in aide.
4. Mary Weinblad
Plaintiff Mary Weinblad, who is 87 years old, also suffers from Alzheimer’s disease. She lives in Uniondale in Nassau County. Until April 1996, Mrs. Weinblad’s daughter had paid for 24-hour private care. The strain on family resources led Mrs. Weinblad to apply for personal care services. Her initial assessment authorized four hours of care per day. In August 1996, when Mrs. Weinblad was reassessed, her mental condition had deteriorated. The nursing assessment indicated that she needed partial assistance with bathing, grooming, and dressing, while her physician’s request for personal care services indicated that she is occasionally forgetful and confused. In addition, she requires a special diet, and takes several medications a day. She was reauthorized to receive four hours of care per day, seven days per week.
Mrs. Weinblad requested a fair hearing. In October 1996, the fair hearing examiner upheld the four hours of service, despite the fact that Mrs. Weinblad “needs twenty-four hour supervision.” Pis.’ Exh. 3 at 5. The examiner based this conclusion on a determination that “[t]he remainder of the time Appellant needs services in the nature of supervision and companionship and one to one cuing [which] are not appropriate tasks for personal care services aides.” Id.
5. Amelia Russo4
Plaintiff Amelia Russo was diagnosed with Alzheimer’s disease in 1994. Shortly thereafter, Mrs. Russo applied for home care services, and was assessed as having a need for partial assistance with several ADLs. She, like Plaintiff Mary Weinblad, did not receive task time for safety monitoring, although she had a tendency to wander and to leave on the stove burners. Nassau authorized four hours of personal care service, three days per week. After an incident during which Mrs. Russo was agitated and allegedly swung a broom either at her aide or at the bathroom door (the details of the incident are disputed), Nassau terminated her personal care services based on a finding that she could not be safely maintained at home. Mrs. Russo challenged that determination at a fair hearing. The termination of Mrs. Russo’s services was upheld at a fair hearing in January 1996. Mrs. Russo died prior to the resolution of the pending motions in this matter.
Ten of the Intervenor-Plaintiffs are from the City, while two are from Nassau. Like the named Plaintiffs, many of the Intervenor-Plaintiffs are elderly people over the age of 80. While I will not provide summaries for each proposed Intervenor-Plaintiff, the following is a general description of the issues raised by the Intervenor-Plaintiffs’ cases. Collectively, the Intervenor-Plaintiffs raise notice, safety monitoring, and span of time issues.
Most City Intervenor-Plaintiffs received a reduction of hours after they were reassessed under TBA. For example, Ruvim Aselrod was reduced from 77 to 58 hours per week of personal care services under TBA. At the time of the reduction, he needed assistance with bathing, dressing, grooming, preparation for bed, toileting, transferring, indoor mobility, preparation of 3 meals and 2 snacks, cutting food three times daily, and-taking medications four times per day. Other Intervenor-Plaintiffs requested an increase in services, but when reassessed under TBA, also received a reduction. For example, Doris Pollard received a reduction from 8 hours per day (with one duty free hour, or an hour when the aide does not perform personal care services) to 7 hours per day, after her physician requested an increase in service to 12 hours per day. Ms. Pollard’s plan of care indicated that she needs assistance with toileting, transferring, taking medications three times daily, preparation of meals and snacks, encouragement to eat three meals, and grooming. Cipriano Soliven, in addition to having received an allegedly inadequate initial notice of authorization, received an allegedly inadequate assessment as well. He has suffered a series of strokes, exhibits impaired judgment and memory, and needs assistance with toileting, ambulation, transferring and eating. His physician requested that he receive services in the range of 10 to 12 hours per day, but he was authorized for 6 hours per day Monday through Saturday and 5 hours on Sunday, to be provided in a single block of time.
Nassau Intervenor-Plaintiff Mariamma David is an 85 year old applicant for personal care services who suffers from a form of dementia. Although the nurse assessor found that Mrs. David forgets where she is going and what she is doing, she was not assessed as needing assistance with toileting or ambulation, but only with bathing, grooming, and dressing, as well as household chores. The nurse found that she was inappropriate for personal care services because she “needs 24 hour direction and supervision.” Although Nassau had agreed to authorize 6 to 8 hours of care if Mrs. David’s family would pay for the remaining hours, it did not in fact authorize any care. That determination was upheld in a fair hearing.
Plaintiff-Intervenor Ann Reece had béen receiving sleep-in personal care services from Nassau. Although she was assessed as needing assistance with bathing, grooming, feeding, meal preparation, and household tasks, her service was discontinued because she allegedly could not be safely maintained at home without constant supervision. In addition, although the. nurse noted that Mrs. Reece needed assistance locating the bathroom, she was not given time for assistance with toileting. The discontinuation of services was upheld at a fair hearing.
II. DISCUSSION
A. Class Certification
For purposes of their notice claims, Plaintiffs seek certification of a class consisting of all New York State Medicaid home care applicants and recipients whose need for home care services has been or will be determined pursuant to TBA. Additionally, for purposes of their substantive challenges to TBA, Plaintiffs seek to certify a sub-class of New York State home care applicants and recipients who have received or will receive an inadequate home care authorization due to the TBA programs’ systemic failure:
(1) to provide safety monitoring unrelated to a specific task; and
(2) to authorize sufficient hours of care to cover the span of time during which*152 unscheduled and recurring needs occur.
An example of an unscheduled and recurring need that occurs over a span of time rather than at discrete times would be the need for toileting, which can occur at any time of the day or night.
Class certification is governed by Federal Rule of Civil Procedure 23. Plaintiffs must first satisfy Rule 23(a)’s four requirements: (1) a class so numerous that joinder is impracticable; (2) questions of law or fact that are common to the class; (3) named parties with claims typical of the class; and (4) class representatives who will fairly and adequately protect the interests of the class. Next, Plaintiffs must establish that the case falls within one of Rule 23(b)’s categories for which a class action is appropriate. Under Rule 23(b), a class action is appropriate where the requirements of subdivision (a) are met and either: (1) the prosecution of separate actions could result in inconsistent adjudications, establish inconsistent standards of conduct, or prejudice the interests of others; (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) questions of law common to the members of the class predominate and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See Fed.R.Civ.P. 23(b).
1. Rule 23(a)
a. Notice Claims Class of All New York State Applicants and Recipients Who Will Be Assessed Pursuant to TBA
More than one notice is at issue in this case, as the City’s notices differ substantially from the other districts’ notices, which also differ from one another in some respects. Plaintiffs challenge the City’s notices on the grounds that: (1) the initial authorization notice does not provide the number of home care hours for which an applicant has been authorized; and (2) neither the initial nor the reauthorization notice alerts recipients to the daily or weekly schedule for authorized services. Plaintiffs also challenge the remaining districts’ notices on the grounds that while they provide the number of hours and days per week of service, these notices do not inform the applicant of recipient of the tasks that will be performed, or the time of day those tasks will be performed. Each notice has been approved by the State.
This proposed notice class is sufficiently numerous such that joinder would be impracticable. As of September 1996, by the City’s own calculations, approximately 40,000 potential class members currently receive Medicaid home care services.
Plaintiffs’ notice claims also raise a question of law common to the proposed class, namely, the sufficiency of the notices. Either the notices satisfy both the relevant regulations and statutes and due process, or they do not. Plaintiffs also satisfy the typicality requirement, as “each class member’s [notice] claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant[s’] liability.” Robidoux, 987 F.2d at 936. Fi~
b. Subclass of Applicants and Recipients with Safety Monitoring Needs
The proposed safety monitoring subclass also meets the requirements of Rule 23(a). First, the proposed subclass is numerous enough that joinder would be impracticable. Because the State does not require TBA programs to provide safety monitoring as a separate task, the State’s policy has a statewide effect on all Medicaid home care applicants and recipients who presently need safety monitoring or will need it in the future. If past numbers are any indication, this group is quite large.
Turning to commonality, it is the State’s position and policy that safety monitoring does not constitute a separate task for TBA purposes, although the State allows the individual counties to provide it voluntarily. See Tr. 717, 809, 1509, 1512; State Exh. 1. Plaintiffs claim that the Medicaid Act and regulations, the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S.C. § 794, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., require, as a matter of law, that the home care services program provide safety monitoring as a separate task. The resolution of this dispute thus presents a common question of law for the entire subclass. The safety monitoring claim of the named Plaintiffs and Intervenor-Plaintiffs are also typical of the class, as Plaintiffs contend that the same allegedly unlawful conduct — the failure to provide safety monitoring in contravention of federal law — affects both the named Plaintiffs and the class. See Robidoux, 987 F.2d at 931. Finally, as already noted, the named Plaintiffs, Intervenor-Plaintiffs, and their counsel will fairly and adequately protect the interests of the class.
e. Subclass of Applicants and Recipients with Span of Time/Unscheduled and Recurring Needs
A statewide “span of time” subclass is
The commonality requirement is satisfied where “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). As a preliminary matter, all of the named Plaintiffs reside in and receive personal care services from either the City or Nassau and no other district — nonetheless, the proposed class is statewide. If the challenged TBA programs in each district were uniform, the actual district from which a proposed representative receives personal care services would not affect the statewide nature of these claims. However, the TBA programs in the City and Nassau differ from each other and from those in Westchester and Suffolk in ways that are germane to Plaintiffs’ “span of time” claims. Because of the differences in the assessment tools and assessment processes from district to district, it is not at all clear that any assessment flaws in the City or Nassau’s programs are present in any other district’s program,
Each district must offer personal care services as a matter of federal law once the State opts to provide that service. I am not persuaded, however, that the TBA programs used in the various districts constitute a “system” for purposes of Plaintiffs’ “systemic” challenges to TBA. Moreover, Plaintiffs have not shown that any recipient or applicant in any social services district other than the City or Nassau has been harmed by “span of time” assessment issues. There is simply no proof that the “span of time” claims of the proposed class representatives from Nassau and the City share a common issue of fact or law with the proposed class members throughout the State.
For the same reasons, the proposed class representatives’ claims are not necessarily typical of the claims of the proposed class. Because TBA programs differ from district to district, the claims of the named Plaintiffs do not “arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” See Robidoux, 987 F.2d at 936-37. The “practices” of TBA programs throughout the State are not uniform.
Although Plaintiffs have not demonstrated a need for certification of a statewide class, they have met the requirements for certification of district-wide subclasses for the City and Nassau for the “span of time” claims. See Fed.R.Civ.P. 23(c)(4) (“class may be divided into subclasses”). The named Plaintiffs’ claims raise a common question of law for applicants and recipients within the City and Nassau — whether each district’s respective mode of assessment adequately authorizes sufficient hours of care to cover the span of time during which unscheduled and recurring needs occur. Defendants contend that each named Plaintiff’s TBA assessment is an individualized, factual determination based on the professional judgment of medical, nursing and social services providers. As a result, Defendants argue that the claims of the named Plaintiffs do not demonstrate a “common problem.” See Affidavit of Stephen Fisher, Management Analyst III and former Director of Medical Services for Nassau County Department of Social Services, dated March 10,1997, H 21. However, “[f]actual differences in the individual claims ... are not fatal,” particularly where “the actions
For the same reason, the City and Nassau named Plaintiffs have claims typical of City and Nassau “span of time” subclasses. Each district’s respective assessment and authorization process constitutes “a pattern of behavior that commonly affects all proposed [sub]elass members” within that district. See id. The factual basis for the claims of all members of a purported class need not be identical. See Wilder v. Bernstein, 499 F.Supp. 980, 982 (S.D.N.Y.1980). In the employment discrimination context, the Court of Appeals has held “[e]vidence indicating that the employer discriminated in the same gem eral fashion against the class representatives and against other members of the class” to be sufficient for purposes of Rule 23(a)(3). See Robidoux, 987 F.2d at 937 (citing Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 596-98 (2d Cir.1986)). Similarly, Plaintiffs need only show that the TBA assessment process is performed “in the same general fashion” throughout the district for the named Plaintiffs’ claims to satisfy the typicality requirement.
In summary, Plaintiffs are not entitled to certify a statewide class for their “span of time” claims. Although a statewide class is too broad, there is a basis to certify two discrete subclasses. Those subclasses consist of City and Nassau home care applicants and recipients who have received or will receive an inadequate home care authorization due to the alleged systemic failure to authorize sufficient hours of care to cover the span of time during which unscheduled and recurring needs occur.
2. Rule 23(b)
Each of the classes above — the notice class, safety monitoring subclass, and Nassau and City “span of time” subclasses — is appropriate for certification under Fed.R.Civ.P. 23(b)(2). Under Rule 23(b)(2), class certification is warranted where a defendant’s conduct is generally applicable to the class, thus making final injunctive and declaratory relief appropriate for the whole class. See Fed. R.Civ.P. 23(b)(2).
[T]he situation contemplated by Rule 23(b)(2) [is one in which] [a]n order requiring defendants to comply with federal ... law in order to remedy the [alleged] systemic failures that are the source of plaintiffs claims constitutes relief that would serve the entire putative class.
Marisol A, 929 F.Supp. at 692. Because Plaintiffs request similar injunctive relief, certification under Rule 23(b)(2) is appropriate.
B. Preliminary Injunction
1. Legal Standard
When seeking to stay “government action taken in the public interest pursuant to a statutory or regulatory scheme,” a party seeking a preliminary injunction must demonstrate irreparable harm and a likelihood of success on the merits. See Jolly v. Coughlin, 76 F.3d 468 (2d Cir.1996) (quoting Able v. United States, 44 F.3d 128, Í31 (2d Cir. 1995)). A slightly higher, standard applies where “the injunction sought ‘will alter, rather than maintain, the status quo’ — i.e., is properly characterized as a ‘mandatory’ rather than ‘prohibitory’ injunction.” Jolly, 76 F.3d at 473 (quoting Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir.1995)). In such circumstances, the moving party must show a “clear” or “substantial” likelihood of success on the merits. Id. The distinction between mandatory and prohibitory injunctions is often elusive, however, and “cannot be drawn simply by reference to whether or not the status quo is to be maintained or upset,” id. at 474 (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985)), particularly where the parties may have different perspectives on what constitutes the status quo. Id.
Plaintiffs’ notice claims unequivocally demand mandatory relief, as Plaintiffs seek to change the content of Defendants’ initial and reauthorization notices, some of which
2. Analysis of Jurisdiction over Statutory Claims Under § 1983
In addition to their constitutional claims, Plaintiffs seek to enforce various provisions of the Medicaid Act and its implementing regulations. Section 1983 provides a right of action against any person who, under color of state law, deprives another of “any rights, privileges or immunities secured by the Constitution and laws” of the United States. Section 1983 provides a remedy for the deprivation of specific rights created by federal law. See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448-49, 107 L.Ed.2d 420 (1989). As such, a § 1983 plaintiff must show that the federal law upon which he or she relies creates an enforceable right under § 1983. Id. If Congress has not affirmatively withdrawn the remedy of a cause of action under § 1983, there is a presumption in favor of the right to bring suit. Chan v. City of New York, 1 F.3d 96, 103 (2d Cir.1993).
In Wilder v. Virginia Hospital Association, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), the Supreme Court affirmed the basic analytical framework for determining whether a private right of action exists that had been set forth in Golden State: the plaintiff must show that the statute (1) is “intended to benefit” the plaintiff seeking to enforce it; (2) is mandatory rather than hortatory; and (3) is not so vague and amorphous as to be “beyond the competence of the judiciary to enforce.” Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. The burden then shifts to the defendant to demonstrate that Congress “by express provision or other specific evidence from the statute itself ... intended to foreclose such private enforcement.”
3. Substantive Challenges to TBA
a. Safety Monitoring: Disability Discrimination
Plaintiffs contend that Defendants’ refusal to provide safety monitoring as an
i. Jurisdiction
Plaintiffs have an enforceable private right of action under § 1396a(a)(10)(B) and the applicable regulations. First, a plain reading of this section indicates that it is intended to benefit categorically needy persons, which some members of the safety monitoring class undoubtedly are. Second, the comparability provision uses mandatory, rather than precatory language when it states that the medical assistance offered to the categorically needy “shall not” be less than that offered to other categorically or medically needy individuals. Finally, this provision is within the competence of the judiciary to enforce, as it requires a court to compare the level of services provided to one recipient with those given another and to determine whether those services are comparable. The standards to be applied are set by the State’s own actions — i.e. the State itself sets the level of care to be provided to both of these groups, which is the standard by which the level of services given the categorically needy is measured.
ii. Substantial Likelihood of Success on the Merits
As noted above, the State defines “medical assistance” under its Medicaid program, which includes personal care services, as the provision of medical services “which are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with such person’s capacity for normal activity, or threaten some significant handicap.” N.Y. Soc. Serv. Law § 365-a(2). Personal care services include the provision of assistance with personal hygiene, feeding, dressing, and housekeeping that 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). Plaintiffs contend that historically, safety monitoring and supervision
The question posed by Plaintiffs’ claim under § 1396a(a)(10)(B) is whether the safety monitoring required by mentally impaired clients is comparable to the services provided to physically impaired clients such that the failure to provide the service violates the “equality principle” embodied in this sec-. tion.
Defendants’ explanation for declining to provide safety monitoring is that safety monitoring is not a “task” in the same sense as assistance with bathing is a “task”. “Tasks,” according to Defendants, are “hands-on”. In Defendants’ lexicon, safety monitoring is akin to “companionship”, a service not provided by personal care aides.
Defendants might concede that some of the above activities would be recognized by the personal care services program as tasks. However, because Defendants also contend
Putting aside the somewhat ambiguous “hands-on hands-off’ distinction, Defendants contend that they have not historically, and do not now provide safety monitoring to guard against such dangers as wandering out of the house or turning on the stove, both of which present real hazards to individuals with Alzheimer’s disease or other mental impairments.
This thorny issue presents a classic chicken-egg problem. Although Defendants attempted to show that many persons with mental impairments are inappropriate for home care, the evidence showed that the opposite is often true. One of Plaintiffs’ experts, Dr. Diane Meier, testified that a home attendant would be capable of monitoring an Alzheimer’s patient’s safety under many circumstances. Tr. 535. She also testified that many patients with mild cognitive impairment can be safely maintained in their homes without constant, 24-hour assistance. Tr. 469-470. Plaintiffs also presented testimony from Adeena Horowitz, a social worker who specializes in geriatric care, who stated that persons with Alzheimer’s are often cared for safely at home throughout all stages of the disease, so long as safety monitoring is . provided. Tr. 628, 634-5.
The testimony suggests that it is Defendants’ failure to provide safety monitoring, rather than the condition of the patient who needs safety monitoring, that causes maintenance at home to be unsafe for a patient with a mental disability. Although Defendants are permitted, within limits, to determine the scope of services offered by their personal care programs, they have not explained why preventing a dementia patient from wander-’ ing into the street is not comparable to turning and repositioning a bedbound recipient several times a day to prevent bedsores. Both “services” can be performed by a personal care aide and are “essential to maintaining the patient’s health and safety in his
The State offers as some justification for its position a set of rules proposed in 1996 by the Department of Health and Human Services (“HHS”) which, if adopted, would have affected the personal care services program. Tr. 810; State Exh. 3. These proposed rules led to an exchange of letters between the State and the Health Care Financing Administration (“HCFA”), a division of HHS responsible for administration of the Medicaid program, by which the State attempted to clarify the federal government’s position on safety monitoring as a separate task. See State Exhs. 4r-7. In response to an inquiry from the State, HCFA wrote:
Monitoring an individual’s activities should be an inherent part of personal care services; that is, a provider that is assisting an individual who is not self-directing and is at risk to themselves or others in meal preparation, bathing ... etc., should also be expected to monitor the individual’s activities as an integral part of the personal care services provided. However, we believe that the supervising/monitoring of an individual, by itself, without the provision of recognized personal care services, would not be considered personal care services for Medicaid purposes.
State Exh. 5, (November 19, 1996 Letter from HCFA to NYS Dep’t of Health). The State concluded, based on this response, that safety monitoring was not to be provided as a separate task. Tr. 817.
HCFA’s response to the State’s queries is not crystal clear. A plausible reading of its response is that safety monitoring is permissible as a separate task only where the recipient is receiving other personal care services, but not where safety monitoring is, in itself, the only task being performed. HCFA’s letter does not compel the conclusion that the provision of safety monitoring as a separate task is not a permitted personal care service. Indeed, the testimony revealed that most patients in need of safety monitoring also need assistance with other ADLs. See Tr. 433, 434, 629.
The State’s interpretation of HCFA’s letters is best understood in light of the State’s difficult battle to maintain the public fisc in the face of the escalating cost of the personal care services program. See Defs.’ FOF 111112-17; Sherry Aff. f1137-39,41, 45. AH of New York State’s home care programs constitute approximately $2.7 billion per year,totaling over 4% of the State’s budget. See Sherry Aff. H 38. The State attests to the fact that TBA is an effort to “reduceQ wasteful expenditures of limited Medicaid funds in the assessment process by avoiding ‘down time,’ ” or periods when a personal care services aide is in a recipient’s home but not assisting a patient with “hands-on” tasks. Defs.’ FOF 1117. To address the rising cost of home care services, the State has integrated a fiscal assessment into its assessment process, which, as noted above, caps the cost of home care services at 90% of the cost of a residential health facility, if the individual does not meet one of five specified exceptions.
To the extent, therefore, that Defendants attempt to use fiscal concerns as a justification for eliminating (or not providing in the first instance) safety monitoring from the personal care services program, Defendants put the cart before the horse. As Plaintiffs have argued, individuals eligible for personal care services must first be assessed correctly for the number of hours of personal care services they need — -whether or not that level of service may then make them ineligible based on the fiscal assessment outlined in
The failure to provide safety monitoring to individuals with mental disabilities, whether based on a distinction between “hands-on” and “hands-off’ assistance, or based on a determination that safety monitoring is not comparable to other tasks, violates the comparability provisions of the Medicaid Act. In light of the foregoing, Plaintiffs have demonstrated a substantial likelihood of success on the merits of their safety monitoring claim under § 1396a(a)(10)(B) and 42 C.F.R. § 440.240(b).
b. Span of Time Claims of Individuals with Unscheduled and Recurring Needs
i. Medicaid Act Claims
Plaintiffs also contend that Defendants’ respective TBA programs result in arbitrary assessments for individuals with unscheduled and recurring needs in violation of the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B) and 42 C.F.R. § 440.240(b). Plaintiffs claim that although the individual districts may contend that they do not provide TBA plans of care for individuals with needs that recur or are unscheduled over a 24-hour period, in fact those individuals are not exempt from TBA and receive inadequate plans of care. Plaintiffs base this claim, in part, on their assertion that the TBA forms are mechanized and do not adequately provide for overrides of allotted task times where more time is necessary for an individual recipient. Plaintiffs also contend that the TBA forms, as currently designed, do not sufficiently integrate an escape valve from TBA for individuals with recurring or unscheduled needs. With respect to the City’s TBA forms, Plaintiffs assert that those forms do not sufficiently alert the nurse assessors to the “Mayer 3” exemption.
a) Substantial Likelihood of Success on the Merits
Plaintiffs have presented voluminous documentary evidence and extensive testimony on the issue of individuals with recurring or unscheduled needs. After a comprehensive review of that evidence, I conclude that
First, Plaintiffs claim that the TBA forms and assessment procedures do not sufficiently account for needs that occur over a span of time, e.g. toileting needs. Rather, Plaintiffs contend that TBA nurse assessors allot a fixed number of minutes per task, add up those numbers for a total number of minutes, and then mechanically grant the equivalent number of hours without regard to whether the identified needs can be met within that number of hours. Where variations from the standard task times occur, Plaintiffs contend, those variations are random and arbitrary, i.e. a nurse assessor adds in some number of hours or minutes to make up the span of time without any written guidelines or standards.
Plaintiffs mischaracterize the assessment forms and the assessment process. While the City and Nassau’s TBA forms are not “friendly” to overrides for allotted task times or to recording the span of time over which needs occur, they are flexible enough in design to permit the nurse assessor to address recurring or unscheduled needs.
Similarly, Nassau’s written guidelines and oral instructions to assessing nurses allow an override in task times where necessary and include those instances where a task or tasks could span 24 hours. See Nassau Exhs. D, E; Tr. 1203-05. Nassau’s form also includes an area called “other,” in which the nurse assessor can describe the “span of time” needs of a particular patient. See id; Tr. 1202-03, 1205. Based on the testimony adduced at the hearing, neither the City’s nor Nassau’s TBA forms or processes are systemically flawed in a way that results in arbitrary and insufficient assessments.
Plaintiffs also contend that the individual cases and case files received in evidence reveal a pattern of arbitrary assessments that can only be attributed to a systemic flaw in TBA. Plaintiffs contend that the hours of care authorized for many of these recipients and applicants were inadequate to satisfy the needs identified by the nurse assessors on the TBA form itself.
Each of these cases involve highly individualized questions of fact raised by the particular circumstances of each patient — facts that cannot be reviewed in their entirety in this proceeding, but which can be reviewed in a fair hearing and an Article 78 proceeding. While there will always be individual errors in a program of this magnitude, these alleged errors do not convincingly demonstrate a systemic flaw in the City’s or Nassau’s TBA programs.
In addition, assessments for home care services are the product of the professional judgment of physicians, nurses, and social workers. As such, errors that are made reflect errors in human judgment rather than systemic flaws in TBA As Defendants stressed throughout the hearing, the assessors involved in each TBA program are health care professionals who can be expected to act in the best interests of the health and safety of their patients.
Plaintiffs essentially ask this Court to second-guess these professional judgments. This is simply not possible. Review is available via the fair hearing process, and, if necessary, through an Article 78 proceeding in New York Supreme Court. See 42 C.F.R. § 431.220; N.Y. Soc. Serv. Law § 22; C.P.L.R. § 7803(4). It is true that
[t]he administrative appeal process is not a substitute for proper prior procedures at the agency level ... [and that] the administrative appeal process may not regularly be used as a vehicle to conduct a requisite inquiry which the agency continually fails to institute.
See Allen v. Blum, 85 A.D.2d 228, 448 N.Y.S.2d 163, 169 (1st Dep’t 1982), affd, 58 N.Y.2d 954, 460 N.Y.S.2d 520, 447 N.E.2d 68 (1983). In this case, however, proper procedures exist at the agency level. Those procedures are reflected both in the TBA forms and in the assessment process.
Plaintiffs further contend, with respect to the City, that TBA as administered does not result in consistent Mayer 3 exemptions, that patients entitled to 24-hour care under the exemption are denied appropriate and federally mandated levels of care, and therefore that the City’s TBA program is systemically flawed. As evidence of this flaw, Plaintiffs point to the admission of Frances Louth that of 23 case files of individuals with unscheduled needs, 9 cases that should have been identified as Mayer 3 exemptions were not identified as such, and that only one case was given a traditional rather than a TBA plan of care. Tr. 1040-44; Pis.’ Exh. 5.
The City’s TBA program has been in existence approximately one year and is not yet fully implemented. Tr. 565. In July 1996, the City began to use TBA for initial applicants. Id. In October 1996, the City commenced reassessments of recipients to determine whether their plans of care can be converted to TBA. Tr. 565-66. It is entirely reasonable that the City is continuing to work out the “kinks” at this early stage of its TBA implementation. Considering the nascency of the City’s program, Plaintiffs have failed to show that this small sample of errors demonstrates a likelihood that the TBA assessment process is systemically flawed.
Plaintiffs also claim that TBA violates the Due Process Clause of the Fourteenth Amendment, which “requires that government officials refrain from acting in an irrational, arbitrary or capricious manner.”
a) Substantial Likelihood of Success on the Merits
Just as TBA does not result in arbitrary assessments in violation of the Medicaid Act, neither the City’s nor Nassau’s TBA programs are arbitrary for due process purposes. Rather than failing to provide ascertainable standards, TBA requires a detailed examination of the needs of recipients and applicants. While individual TBA assessors may, at times, incorrectly assess a patient’s needs, the programs themselves provide adequate standards by which those needs should be measured. Moreover, to the extent that errors occur, the due process needs of recipients and applicants with recurring and unscheduled needs are sufficiently protected by the fair hearing process, and, if necessary, by an Article 78 proceeding.
Plaintiffs have not shown that the design and/or implementation of the City’s or Nassau’s TBA programs results in arbitrary assessments on a systemic level in violation of 42 U.S.C. § 1396a(a)(10)(B). Nor have Plaintiffs shown that Defendants’ TBA programs result in arbitrary assessment in violation of constitutional due process guarantees. Because Plaintiffs have not demonstrated that these programs violate federal law or the Constitution, Plaintiffs do not have a substantial likelihood of success on the merits of their “span of time” needs claims.
4. Procedural Challenges to TBA: Notice Claims
The Fourteenth Amendment prohibits the state from depriving a person of life, liberty or property without due process of law. Plaintiffs’ Medicaid benefits are a protectable “property interest” under the Fourteenth Amendment. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (welfare recipients have property interest in continued payment of welfare benefits). Plaintiffs assert that TBA notices
Basic requirements of due process mandate that individuals threatened with the deprivation of a government entitlement receive “timely and adequate notice” detailing the reasons for the government’s action. Goldberg, 397 U.S. at 267-68, 90 S.Ct. at 1020-21. See also Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Thus the notices sent by the districts must give adequate notice of the district’s determination about a recipient’s or applicant’s request for personal care services such that a recipient or applicant can timely challenge a decision with which he or she disagrees. See Ellender v. Schweiker, 575 F.Supp. 590, 600-03 (S.D.N.Y.1983); see also Henry v. Gross, 803 F.2d 757, 766 (2d Cir. 1986). The scope of information which should be provided to the recipient is at the heart of Plaintiffs’ notice claims.
The City’s notice to initial applicants, which does not include the total amount of authorized assistance hours, does not meet due process requirements. The total number of home care hours authorized by the City and the allocation of those hours by the number of hours per day is information essential to an applicant’s evaluation of whether to challenge an initial authorization, and its conspicuous absence severely hampers an applicant’s ability to secure an opportunity to be heard at a fair hearing. As a basic principle, the number of hours is a yardstick by which an applicant measures whether the authorized care will in fact meet his or her personal care needs. The number of hours authorized puts an applicant on notice that a challenge is warranted.
The additional notice requirements that Plaintiffs seek are not mandated by due process guarantees. In this regard, Plaintiffs seek to include the list of tasks to be performed and the daily or weekly schedule for those tasks on each notice. Although it would be admirable if each district included this information, due process does not require such detail. Rather, the notices need only be specific enough to put applicants and recipients on notice that they may not receive adequate care. As currently constructed, the City’s notices include the tasks to be performed, while the Nassau and Suffolk notices include the level of services
In summary, Plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim that all notices of TBA determinations for applicants and recipients must include the number of hours authorized and the allocation of those hours by the number of hours per day. They have failed, however, to make such a showing with respect to the inclusion of specific tasks to be performed or schedules.
5. Irreparable Harm
For those claims for which Plaintiffs have demonstrated substantial likelihood of success on the merits, they have also satis
6. Balance of Public Interests
The Court of Appeals has recently stated that “[wjhenever 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 plaintiffs threatened irreparable injury and probability of success on the merits warrants injunctive relief.” Time Warner Cable of New York City. v. Bloomberg L.P., 118 F.3d 917, 929 (2d Cir.1997). A court should do so to minimize the possibility that “a claim that appears meritorious at a preliminary stage but is ultimately determined to be unsuccessful will have precipitated court action that might needlessly have injured the public interest.” Id.
Both sides of the safety monitoring issue implicate public interest concerns. On the one hand, the public interest will benefit if the health and safety of the mentally disabled are furthered by the inclusion of safety monitoring in TBA programs. The public interest will also be harmed if members of this group are either denied benefits to which they are entitled, or are left to fend for themselves for several hours a day in a home situation which is hazardous. On the other hand, there is a public interest in preserving the scarce resources available for personal care services programs, and managing the cost of such services effectively. The balance of the public interest favors the issuance of an injunction. While the State’s fiscal concerns are valid ones, the State has already developed a mechanism for addressing the cost of personal care services — the fiscal assessment.
With respect to the notice issue, the burden on the City is so slight, while the benefit to the public interest is so great, that the balance of the public interest undoubtedly favors an injunction. The City need only add one item of information to its notice — information which is within its possession and will take little effort to provide. The public interest will benefit by affording home care services applicants a full opportunity to challenge their initial authorizations for home care.
III. CONCLUSION
Plaintiffs have met the requirements for certification of a statewide class of all New York State applicants and recipients for personal care services whose need for home care services has been or will be determined pursuant to TBA for purposes of their notice claims. They have met the requirements of certification of a statewide subclass of applicants and recipients with safety monitoring needs. Although they are not entitled to a statewide subclass of applicants and recipients with “span of time” needs, they have met the requirements for certification of City and Nassau subclasses for purposes of these claims as they relate to those districts.
Plaintiffs have shown both irreparable harm and a substantial likelihood of success on the merits of their safety monitoring claim. They have also met this burden with respect to their challenge to the City’s initial notice of authorization. Plaintiffs have not shown a likelihood of success on the merits of their “span of time” claims against the City
ORDERED that Defendants include safety monitoring as a separate task on their TBA forms, assess the need for safety monitoring as a separate task, and calculate any minutes allotted for safety monitoring as part of the total personal care services hours authorized, for both applicants and recipients; and it is further
ORDERED that the City of New York include the total number of task hours authorized and the allocation of those hours by the number of hours per day as a component of its initial notice, and, to the extent this information is not already included, as a component of its reauthorization notice.
SO ORDERED.
. Two of the named Plaintiffs, Christos Gouvatsos and Amelia Russo, died during the pendency of the motions now before the Court. Mr. Gouvatsos was an applicant for personal care services, rather than a recipient. Defendants have not raised the issue of whether the claims represented by these named Plaintiffs survive their deaths for purposes of class certification, absent the substitution of other named Plaintiffs. The Supreme Court has stated that "there may be cases in which the controversy involving the named Plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case.” Sosna v. Iowa, 419 U.S. 393, 402 n. 11, 95 S.Ct. 553, 559 n. 11, 42 L.Ed.2d 532 (1975). Here, Plaintiffs moved for class certification promptly after the filing of the Complaint. I deferred decision on that motion pending a motion for intervention, which Plaintiffs believed would further illuminate and support the class-based nature of their claims. That motion was fully submitted only recently. In addition, the hearing on this matter was suspended for several weeks during the course of extensive settlement efforts with the Magistrate Judge. Finally, the claims of the proposed Intervenor-Plaintiffs re
. Plaintiffs also seek leave to permit twelve additional Medicaid home care recipients to intervene in this action. Because the proposed intervenors have the same legal claims as the named Plaintiffs, this motion is granted. See Fed. R.Civ.P. 24(b)(2) (authorizing intervention "when an applicant’s claim or defense and the main action have a question of law or fact in common”); Security Pac. Mortgage and Real Estate Servs., Inc. v. Republic of Philippines, 962 F.2d 204, 208 (2d Cir.1992) (decision to permit intervention falls within court’s sound discretion).
I reject Defendants’ contention that the addition of these Intervenor-Plaintiffs will unnecessarily delay and complicate the case. Although Defendants’ observation that the preliminary injunction hearing involving only the five named Plaintiffs was lengthy, the testimony concerning the individual facts of those Plaintiffs’ cases was quite brief. The majority of the time was spent taking the testimony of various administrators of Defendants' respective social services programs. That oral testimony need not be taken again at a trial on the merits.
. The following facts are drawn from testimony at the preliminary injunction hearing, the case flies of the named Plaintiffs, and Plaintiffs’ and Defendants’ respective Findings of Fact ("FOF”).
. I have already found that despite the deaths of Mr. Gouvatsos and Mrs. Russo, class certification of Plaintiffs’ claims relates back to filing of the Complaint, and therefore the claims of the classes that they represent survive their deaths until substitution of another Plaintiff. See footnote 1, supra. Plaintiffs offered Mr. Gouvatsos as a class representative of both their notice claims and "span of time” needs claims. Because other named Plaintiffs and IntervenorPlaintiffs from the City raise "span of time” claims and Mr. Gouvatsos is now deceased, I shall not discuss the details of his case as it relates to "span of time” issues. I include Mr. Gouvatsos only as a temporary representative for the notice issue pending the substitution of another Plaintiff. I also note that Intervenor-Plaintiff Cipriano Soliven challenges his initial notice from the City that failed to include the total number of hours authorized. See Pis.’ Exh. 5(19).
. In conjunction with the class certification motion, the City had argued that Mr. Gouvatsos lacked standing because he was not receiving home care services at the time that motion was made. I disagree. As an initial matter, Mr. Gouvatsos’ home care was not terminated by his hospitalization as a matter of law. See Granato v. Bane, 74 F.3d 406 (2d Cir.1996). Moreover, because Mr. Gouvatsos had been hospitalized and had returned to the City’s home care services program in the past, and because he had intended to do so again, he had a substantial likelihood of being assessed again under TBA and thereby suffering injury in the future. See Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir. 1993). His injury at the time this suit was commenced was therefore "sufficiently real and immediate” to confer standing. See City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 1666-67, 75 L.Ed.2d 675 (1983). In addition, Mr. Gouvatsos had received an allegedly
. As with Mr. Gouvatsos, the claims raised by Mrs. Russo’s case are raised by other named Plaintiffs and Intervenor-Plaintiffs. I include the facts of her case solely for completeness.
. The facts of the Intervenor-Plaintiffs’ cases are drawn from the Declaration of Leslie Salzman in Support of Motion for Intervention, attorney for Plaintiffs, dated June 9, 1997.
. See Affirmation of Michael D. Scherz, attorney for Plaintiffs, dated February 11, 1997, Exh. B (HRA FACTS: November 1996).
. A 1994 DSS study of the home attendant program in New York Ci1y from 1992-93, which surveyed 1266 New York City home attendant cases, found that approximately 77% of personal care recipients were receiving "safety monitoring” as a service. Pis.' Exh. 15 at 15. This study was conducted prior to the City’s implementation of TBA. Tr. 908. The report does not indicate whether safety monitoring was provided as a separate task or in conjunction with other tasks, although safety monitoring comprises a distinct category. Tr. 874 — 77. Based on the 1994 report's statistics about short-term memory impairment and wandering, however, it stands to reason that some proportion of the home attendant service recipients were provided with safety monitoring as a separate task. The 1994 DSS study revealed that approximately 31% of the home care population exhibited short term memory impairment some of the time, while approximately 9% always exhibited such an impairment. Pis.’ Exh. 15 at 25. Approximately 10% of City home care recipients tended to wander some of the time, while approximately 3% wandered always. Id. at 30. DSS’s Upstate Database Report, which includés statistics from Erie, Nassau, Onondaga, Suffolk and Westchester Counties, states that a review of 1553 case records revealed that 33 recipients suffered from senility, while 27 suffered from Alzheimer’s disease. See State Exh. 8 at 11.
. As discussed above, Plaintiffs claim that a systemic problem of TBA is that it fails to properly consider in the assessment process the span of time over which unscheduled and recurring needs occur.
. For example, the City employs medical review teams to examine discrepancies between the recommendations of the various assessors prior to finalizing a plan of care. See Tr. 1014-16. Nassau has an informal process (prior to a fair hearing) whereby the family, and/or the recipient or applicant can review Nassau’s determination with the assessing nurse or nursing supervisor, which may prompt a reassessment if information was overlooked or if circumstances have changed. Tr. 1216-17. Suffolk assigns assessing nurses by geographic area; thus the same nurse will assess and reassess a patient over a number of years. Tr. 1340-41, 1354. Suffolk assessing nurses also perform a fiscal assessment at the time of a medical assessment to determine whether a patient is eligible for the program. Tr. 1357-58.
. In this action, Defendants have not contended that Congress has, in fact, foreclosed any private right of action Plaintiffs seek to enforce.
. A more recent case, Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), did not apply the analysis of Wilder and Golden State but relied instead on the approach of Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Suter emphasized that when Congress acts pursuant to its spending power, any conditions imposed on federal monies must be set forth "unambiguously". See 503 U.S. at 355-56, 112 S.Ct. at 1366. A determination of what is a "mandatory” condition requires "examin[ation of] exactly what is required of States” by the statutory provision sought to be enforced. See id. at 358, 112 S.Ct. at 1367.
In 1996, Congress, in response to Suter, enacted 42 U.S.C. § 1320a-2, which states in relevant part that a Medicaid Act provision will "not 0 be deemed unenforceable because of its inclusion in a section ... requiring a State plan or specifying the required contents of a State plan.” Courts have considered this provision to "resurrect the Wilder test, with no Suter overlay." Visiting Nurse Ass'n of North Shore, Inc. v. Bullen, 93 F.3d 997, 1003 n. 5 (1st Cir.1996).
. “Categorically needy refers to families and children, aged, blind or disabled individuals, and pregnant women ... who are eligible for Medicaid” and "who, generally, are receiving or deemed to be receiving cash assistance under the [Social Security] Act.” See 42 C.F.R. § 436.3. Individuals who meet the requirements for Medicaid, but are not receiving cash assistance although they are qualified to do so (e.g. individuals who would be eligible for cash assistance if they were not in medical institutions) are also classified as categorically needy. See id. Other categories of individuals that are not relevant for present purposes can also be considered categorically needy. See 42 C.F.R. §§ 436.200-436.230. “Medically needy means families, children, aged, blind or disabled individuals and pregnant women who are not ... categorically needy but who may be eligible for Medicaid ... because their income and resources are within limits set by the State under its Medicaid plan.” Id. § 436.3.
. Supervision in this context refers to supervision of the patient, not supervision of the home care aide. Supervision of the home care aide is ' provided by a self-directing individual on behalf of the non-self-directing patient, who would otherwise provide such supervision himself or herself. See 18 N.Y.C.R.R. §§ 505.14(a)(4)(ii)(a)-(c). Supervision of the home care aide includes making decisions and informing the aide about what and when the non-self-directing patient will eat, when the non-self-directing patient should go outside for a walk, etc., on behalf of the non-self-directing patient. The home care aide cannot "supervise” himself or herself with respect to these decisions.
. For purposes of this discussion, I consider only those mentally impaired clients who meet the eligibility requirements for the program, namely, those that are medically stable and are either self-directing or have a self-directing individual to provide direction to the home care services aide. See 18 N.Y.C.R.R. § 505.14(a)(4)(ii)(a)-(c). In this regard, I disagree with Defendants’ contention that the self-directing individual acting on behalf of the non-self-directing patient needs to have substantial daily contact with the patient in his or her home. See State Exh. 2 (Administrative Directive, 92 ADM-49, dated December 1, 1992). Section 505.14(a)(4)(ii)(a)-(c), the relevant State regulation from which 92 ADM-49's "substantial daily contact” requirement is drawn, does not itself require that the self-directing individual have contact with the non-self-directing individual within the home several times a day; in fact it is silent about where and how often the contact must take place. Second, it seems unlikely that daily contact within the home is always required when a social services agency, by regulation, can also provide direction for the non-self-directing recipient without substantial daily contact with the recipient. See id. § 505.14(a)(4)(ii)(c).
. Defendants also raise the issue of fiscal assessment. In concluding that Defendants must assess the need for safety monitoring separately, I do not rule out the possibility that many recipients and applicants may not meet the fiscal cap imposed on personal care services programs. For a full discussion of that issue, see infra pp. 161-62.
. Plaintiffs do not dispute that companionship is not a personal care service. See Pls.’ FOF Pt. IV, 113.
. This assertion is belied by the State's former regulations, which provided that for initial applicants, a 4 hour per day, 28 hour per week cap on personal care services could be overridden if "monitoring of the patient’s safety is required as part of a plan of care for a non-self-directing patient 18 N.Y.C.R.R. § 505.14(6)(ii)(b)(v). The cap was invalidated in DeLuca v. Hammons, 927 F.Supp. 132 (S.D.N.Y. 1996), and with it, its exceptions, including the safely monitoring exception; however, it implies that safety monitoring was, in some circumstances, a stand alone task. In addition to this regulation, additional support for the proposition that the personal care services program provided safety monitoring as a separate task is offered by the State’s own study of New York City home care services programs prior to the implementation of TBA. See Pis.’ Exh. 15. Safety monitoring appears as one item in a list of "services required” by the home care population in New York City. See id. at 15. This separate listing is inconsistent with the City and State’s assertions that safety monitoring is only a component of other recognized tasks. Finally, Kathleen Sherry of the New York State Depart- ■ ment of Health admitted that "at one time, I guess we’d have to say that we did” consider safety monitoring as a separate task. Tr. 807.
. For example, in the case of Amelia Russo, Nassau authorized 4 hours of tasks without safety monitoring, and then determined that she could not be safely maintained at home with only four hours of care and was therefore inappropriate for personal care services.
. The average monthly cost of split-shift care in the City is approximately $8,000, while the average monthly cost of nursing home care is $3,751. Tr. 729.
. Applicants who do not meet fiscal requirements are also entitled to receive home care services pending appropriate long-term care placement pursuant to Burland v. Dowling, Index No. 407324*93 (N.Y.Sup.Ct. Nov. 15, 1994) (Lebedeff, J.).
. In addition to this Medicaid Act claim, Plaintiffs also contend that Defendants’ failure to provide safety monitoring for the mentally disabled violates the Rehab Act and the ADA. The Rehab Act provides that ”[n]o otherwise qualified individual with a disability ... shall, solely by reason of his or her 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). Title II of the 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." 42 U.S.C. § 12132.
Defendants argue in response that many persons with mental disabilities are not qualified for personal care services because they often cannot be safely maintained at home. In addition, Defendants argue that the mentally disabled are not entitled to enhanced services, e.g. the provision of safety monitoring as a separate task, when that service would "fundamentally alter” the nature of personal care services programs, which is not required by the Rehab Act or the ADA. See Southeastern Community College v. Davis, 442 U.S. 397, 408-09, 99 S.Ct. 2361, 2368-69, 60 L.Ed.2d 980 (1979); 28 C.F.R. § 35.130(b)(7).
It is not entirely clear at this preliminary injunction stage whether Plaintiffs are or are not entitled to relief under either of these statutes. As a result, because Plaintiffs have a substantial likelihood of success on their safely monitoring claim under § 1396a, and because I have granted preliminary relief on that claim, see Part II. B.3.a., I need not reach these other bases for their safety monitoring claims at this time. See Girls Clubs of Am., Inc. v. Boys Clubs of Am., Inc., 683 F.Supp. 50, 52 (S.D.N.Y.), affd, 859 F.2d 148 (2d Cir.1988).
. The “Mayer 3 exemption” resulted from this Court’s decision in Mayer v. Wing, 922 F.Supp. 902 (S.D.N.Y.1996), in which I ordered that TBA not be used to assess the personal care services needs of individuals who have continuous needs that span 24 hours. In an effort to comply with that Order, the City has applied the Mayer Order to circumstances in which the individual would need 24 hour care but for the presence of social supports 'in the home who provide nighttime care. This latter category is the “Mayer 3 exemption.”
. I do not consider any other social services districts in this discussion because there is no certified statewide class for this claim. See Part II.A.1.c., supra.
. For example, named Plaintiff Sidonie Bennett was assessed as having a need for total assistance with toileting, changing of diapers, and transferring, as well as a need for some assistance with indoor mobility, and yet she was only authorized for 73.3 hours of task time, although these needs span a 24-hour period, and despite her treating physician’s recommendation for 24-hour care. Intervenor-Plaintiff Ruvim Aselrod was reduced from 84 hours of service per week (including a break of one hour for the attendant's lunch, making actual service time 77 hours per week) to 58 hours per week under TBA despite the need for assistance with bathing, grooming, dressing, toileting, transferring with equipment, preparation for bed, assistance with cutting food for three meals, preparation of three meals and two snacks, and assistance with medication 4 times daily. See Pis.’Exh. 51. Other examples can be found in Exhibit 5 (excerpts from 23 case files) and Exhibits 40 through 66, which contain parts of several case files from City and Nassau recipients.
Exhibits 54 through 66 were conditionally admitted at the hearing. In this regard, after considering the parties’ submissions on the issue, I find that the Defendants' objections are ad
. Plaintiffs also contend that TBA, as administered by Defendants, violates the federal requirement that “[ejach service must be sufficient in amount, duration and scope to reasonably achieve its purpose.” See 42 C.F.R. § 440.230(b). Plaintiffs claim that Defendants’ TBA programs violate this requirement because they fail: 1) to provide time for safety monitoring and supervision when those services are medically necessary; 2) to ensure that overrides of suggested task times occur in a rational and predictable way; and 3) to assure that "span of time” as well as recurring and scheduled needs are met at the times those needs arise.
Defendants first argue that there is no private right of action under this, or indeed any, Medicaid regulation. In view of my conclusion that Plaintiffs have failed to demonstrate substantial likelihood of success on the merits of their comparability claim with respect to unscheduled and recurring needs, there is no need to decide this jurisdictional question. Even if there were a private right of action under this regulation, it
. To the extent that the scope of Plaintiffs' claim that Defendants' safety monitoring policy is arbitrary in violation of the Medicaid Act and due process guarantees, I do not reach those claims, as I have granted relief to members of the safety monitoring subclass on an alternative ground. See Part II.B.3.a.
. Plaintiffs also contend that Defendants’ TBA programs, with respect to "span of time” needs, violate the federal Medicaid requirement that a State Medicaid plan be in effect statewide and in all political subdivisions of the State. See 42 U.S.C. § 1396a(a)(l); 42 C.F.R. § 431.50. Plaintiffs further contend that variations in the administration of and standards for TBA violate the requirement that a State’s Medicaid plan must "provide for a single State agency to administer or supervise the administration of the plan.” 42 U.S.C. § 1396a(a)(5); see also 42 C.F.R. § 431.10(e). With respect to the statewide plan claim, assuming, arguendo, that a private right of action under § 1396a(a)(l) exists, Plaintiffs have not presented any evidence at this preliminary stage that the personal care services program is not in effect statewide. To the extent that Plaintiffs assert that the level of service provided varies from district to district, it is not TBA, but the subjective determinations of the individual assessors that lead to differences in the level of care provided. In this regard, TBA is no more subject to error or abuse than any other form of assessment. In fact, mistakes can just as easily be made with another assessment tool.
With respect to Plaintiffs’ single state agency claim, it is highly unlikely that there is a private right of action under § 1396a(a)(5). While this section is phrased in mandatory terms, it does not appear to be intended to benefit Plaintiffs. See Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. Additionally, Plaintiffs have not shown at this stage that the variations between TBA programs state a claim under this section.
. This information tracks 18 N.Y.C.R.R. § 505.14, i.e. "Level I (Environmental and Nutritional Functions);’’ "Level II (Personal Care, Environmental and Nutritional Functions.” See Pls.’ Exh. 35 (Suffolk County Notice)).
. Because Plaintiffs have not shown a substantial likelihood of success on the merits of their "span of time” claims, I do not reach the issue of irreparable harm for those claims.