GALLETTA v. VELEZ et al

Filing 44

OPINION. Signed by Judge Robert B. Kugler on 2/18/2014. (tf, )

NOT FOR PUBLICATION

(Doc. No. 30)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_____________________________________
:
ALMA GALLETTA,
:
individually and on behalf of herself
:
and all others similarly situated,
:
:
Plaintiff,
:
Civil No. 13-532 (RBK/AMD)
:
v.
:
OPINION
:
JENNIFER VELEZ, COMMISSIONER,
:
NEW JERSEY DEPARTMENT OF
:
HUMAN SERVICES; VALERIE HARR, :
DIRECTOR, NEW JERSEY DIVISION
:
OF MEDICAL ASSISTANCE AND
:
HEALTH SERVICES; and BERGEN
:
COUNTY BOARD OF SOCIAL
:
SERVICES
:
:
Defendants.
:
____________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on the motion of Jennifer Velez, Commissioner of
the New Jersey Department of Human Services and Valerie Harr, Director of the New Jersey
Division of Medical Assistance and Health Services (“Defendants”), for reconsideration of the
Court’s Order of November 12, 2013. In the Order, the Court denied Velez and Harr’s motion to
dismiss the complaint as moot. Defendants now argue that the Court should grant
reconsideration in order to correct a clear error of fact. Because Defendants fail to show the
existence of such an error, Defendants’ motion will be DENIED.
I.

BACKGROUND

The Court provided a more detailed recitation of the facts in its November 12, 2013
Opinion. See Opinion of Nov. 12, 2013, at 2-4 (ECF Doc. No. 25). The Court will thus only
briefly summarize the facts to the extent necessary to resolve the motion before the Court.
Plaintiff Alma Galetta is a widow of a World War II veteran. In May, 2012, she applied
for Medicaid benefits under “Global Options for Long Term Care” (“Global Options”) waiver
program at Defendant Bergen County Board of Social Services (“BCBSS”). Compl. ¶¶ 18-19.
Global Options is a Medicaid-funded program, which covers home care and assisted living care
for eligible adults. See N.J.A.C. 10:54-5.16 to N.J.A.C. 10:56-5.23; N.J.S.A. 30:4D-17.23 to
30:4D-17.32. To be approved for Global Options, a plaintiff must show that her income and
resources fall below certain maximum levels. The income ceiling was $2,094.00 per month at
the time of her application. Compl. ¶ 20. BCBSS denied her application because her income
exceeded Global Option’s eligibility ceiling at the time. Id. ¶ 21.
BCBSS’s denial of Medicaid was related in part to whether the payments that she was
receiving from Veterans Administration Improved Pension (“VAIP”) counted as income for
eligibility purposes. Id. ¶¶ 21-22. Plaintiff was receiving payments through her late husband’s
benefits through VAIP under 38 U.S.C. § 1541(d)(1). Id. ¶ 22. The relevant statute for
Medicaid eligibility provides that “[p]ayments from the Department of Veterans Affairs resulting
from unusual medical expenses” do not count towards income. 20 C.F.R. § 416.1103(a)(7).
Prior to BCBSS’s denial of her benefits, Plaintiff submitted to BCBSS a letter from the
Department of Veterans Affairs (“VA”), dated May 23, 2012. Id. at Ex. D. The letter indicated
that Plaintiff received $1094.00 each month, $684.00 of which was designated as “pension,” and
$410.00 of which was designated as “aid and attendance.” Id. BCBSS counted “aid and
attendance” as “unusual medical expenses,” and excluded the $410.00 as income for the

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purposes of Medicaid eligibility. BCBSS, however, did not count “pension” as “unusual medical
expenses,” and counted $684.00 per month as part of her income. Id. ¶¶ 24-27. By counting the
$684.00 VA benefit as income, Plaintiff ended up $36.72 over the monthly income limit, which
made her ineligible for Global Options. Id. ¶ 27.
On January 28, 2013, Plaintiff filed a putative class action complaint against Defendants,
seeking an injunction against Defendants treating VAIP payments as income for Medicaid
eligibility, a re-determination of eligibility, an order granting such eligibility on a retroactive
basis to class members who would have been eligible for benefits had VAIP payments not been
treated as income, and attorneys’ fees and costs. On February 14, 2013, the VA sent a letter to
Plaintiff indicating that the entire amount of VAIP benefits, then totaling $1113.00 per month,
constituted “aid and attendance,” without explaining why the allocation of benefits changed with
respect to the amounts indicated in the previous letter. Def. Mot. Dismiss, Ex. C. Plaintiff filed
that letter with BCBSS. Based upon the letter, BCBSS determined that Plaintiff’s income fell
below the income ceiling, and she was thus eligible for Global Options program. Id. at Ex. D.
Defendants then filed a motion to dismiss the case, arguing that Plaintiff’s claims are
moot. On November 12, 2013, the Court denied Defendants’ motion.
II.

LEGAL STANDARD

While the Federal Rules of Civil Procedure do not expressly authorize motions for
reconsiderations, Local Civil Rule 7.1(i) provides for such a review. Dunn v. Reed Group, Inc.,
Civ. No. 08-1632, 2010 WL 174861, at *1 (D.N.J. Jan 13, 2010). Local Civil Rule 7.1(i) directs
a party seeking reconsideration to file a brief “setting forth concisely the matter or controlling
decisions which the party believes the Judge or Magistrate Judge has overlooked.” L. Civ. R.
7.1(i); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F. Supp. 2d 610, 612 (D.N.J.

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2001) (“The word ‘overlooked’ is the operative term in the Rule.”). To prevail on a motion for
reconsideration, the moving party must show “(1) an intervening change in the controlling law;
(2) the availability of new evidence that was not available when the court [made its initial
decision]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.”
Max’s Seafood Café v. Quinteros, 170 F.3d 669, 677 (3d Cir. 1999).
“As this language implies, ‘a motion for reconsideration may address only those matters
of fact or issues of law which were presented to, but not considered by, the court in the course of
making the decision at issue.’” A & L Indus., Inc. v. P. Cipollini, Inc., Civ. No. 12-7598, 2013
WL 6145766, at *1 (D.N.J. Nov. 21, 2013) (citation omitted). “In other words, a motion for
reconsideration is not a vehicle for a party to raise arguments that were effectively waived by
being omitted from that party's original briefs.” Id.
III.

DISCUSSION

Defendants argue that the Court should correct a clear error of fact. Def. Mot. for
Recons. at 4. Defendants’ argument is essentially the following: “Now that Plaintiff is Medicaid
waiver eligible for the Global Options program, she will no longer be eligible for a VAIP as her
income greatly exceeds the low federal maximum income threshold.” Id. They claim that this
is because “VAIP benefits are provided on a financial need basis,” but since Plaintiff “has
acquired Medicaid eligibility under Global Options, Plaintiff’s unreimbursed medical expenses
should decrease close to zero, thus disqualifying her from the VAIP pension, which she received
only because of her unreimbursed medical expenses.” Id. at 5-6.
Defendants’ argument is waived because they failed to include it in their briefs on the
motion to dismiss. At certain points in Defendants’ reply brief, they even conceded that Plaintiff
might continue receiving aid and attendance benefits from VAIP. Def. Reply Br. on Mot.

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Dismiss at 12 (“Because DMAHS is now aware that Plaintiff is receiving a DVA pension that is
all aid and attendance and it is bound by the aid and attendance income exclusion provided for in
20 C.F.R. 416.1103, there is no reasonable expectation that her pension will be included as
income in the future.”); id. at n.6 (“if the DVA determines that Plaintiff continues to qualify for
an aid and attendance pension, Defendants anticipate that the CWA will continue to exclude it
from the income calculations.”). Thus, not only was the argument advanced on reconsideration
absent from the original briefs; but it was inconsistent with Defendants’ arguments at that time.
Nonetheless, if the case is moot at this time, the Court would still be required to dismiss
it. Nextel West Corp. v. Unity Twp., 282 F.3d 257, 261 (3d Cir. 2002) (holding that if a case
ceases to be “live case or controversy” at any time while the case is before the court, “the claim
is moot and the federal court lacks jurisdiction to hear it.”). A court may dismiss a case sua
sponte on grounds of mootness. New Jersey Tpk. Auth. v. Jersey Central Power & Light, 772
F.2d 25, 30 (3d Cir. 1985). Because, aside from the issue of waiver, there is no indication that
Plaintiff’s claim is actually moot at this time, it will not be dismissed.
In its November 12, 2013 Opinion, the Court observed:
There is no apparent reason to suspect that Plaintiff will not continue to collect VAIP
benefits, some of which may be allocated at a future time as income by some of the
Defendants for the purpose of Medicaid eligibility calculations. . . . It is likely that the
amount of Plaintiff’s VAIP payments will increase and the Defendants will again demand
a letter from the VA in order to maintain Plaintiff’s eligibility.
Opinion at 10 (citing 38 U.S.C. § 5312).
The Court finds no change in circumstances or mistake of fact that causes the prior
holding now to fail. Defendants essentially argue that the case is moot because they believe that

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Plaintiff is ineligible for VAIP benefits, or will become ineligible sometime in the near future.
However, Defendants have not submitted any evidence that Plaintiff no longer receives VAIP
benefits, or that her benefits will be terminated as of a certain date. Plaintiff, on the other hand,
has submitted a certification dated December 11, 2013, by Plaintiff’s daughter, who indicates
that she is responsible for Plaintiff’s financial affairs. See Certif. of Marylou Yam, ¶ 2. The
certification indicates that prior to Plaintiff being granted Medicaid eligibility, Plaintiff paid
$6,136.66 per month for home health care. Id. ¶ 3. Now that Plaintiff is eligible for the Global
Options benefits, the bill totals $3,713.66 per month after Medicaid remits payment directly to
the health care provider for the amount it covers. Id. ¶ 4. Plaintiff continues to receive VAIP
benefits in the amount of $1,113.00 per month, and currently has a shortfall of over $1,000 per
month after applying all of her income to her home healthcare costs. Id. ¶ 6. Plaintiff’s daughter
indicates that she currently covers the shortfall by using her personal funds. Id. Thus, the Court
finds that because Plaintiff is still collecting VAIP benefits, the “concrete interest” in obtaining
injunctive relief that was described in the November 12, 2013 Opinion, still exists at the time of
the briefing of the instant motion.
IV.

CONCLUSION
Because Defendants failed to show that the Court overlooked a clear error of fact or law,

their motion for reconsideration will be DENIED.

Dated: 2/18/2014

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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