Bagley et al v. The New York State Department of Health

Filing 191

MEMORANDUM and ORDER: VNAs motion 160 to dismiss is granted. Ordered by Judge Frederic Block on 2/23/2021. (Innelli, Michael)

Case 1:15-cv-04845-FB-CLP Document 191 Filed 02/23/21 Page 1 of 7 PageID #: 1280

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
MICHELLE BAGLEY, GARY
MILLINE, HAMILTON SMITH,
MARCELLA URBAN, and other
similarly situated individuals,

MEMORANDUM AND ORDER
Case No. 15-CV-4845 (FB) (CLP)

Plaintiffs,
-againstTHE NEW YORK STATE
DEPARTMENT OF HEALTH,
HOWARD ZUCKER,
COMMISSIONER OF THE NEW
YORK STATE DEPARTMENT OF
HEALTH, in his official capacity, and
VISITING NURSE ASSOCIATION
HEALTH CARE SERVICES, INC.,
d/b/a VNA of STATEN ISLAND,
Defendants.
------------------------------------------------x
Appearances:
For the Plaintiffs:

For Defendant Visiting Nurse
Association Health Care Services,
Inc., d/b/a VNA of Staten Island:

MICHAEL F. BUCHANAN
BRANDON TRICE
GEORGE SOUSSOU
GREG MARGOLIS
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036

LAURA B. JUFFA
Kaufman Borgeest & Ryan LLP
120 Broadway, 14th Floor
New York, New York 10271

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KEVIN CREMIN
ORIER OKUMAKPEYI
DANIEL ROSS
Mobilization for Justice
100 Williams Street
New York, New York 10038
BLOCK, Senior District Judge:
Defendant Visiting Nurse Association Health Care Services, Inc., d/b/a VNA
of Staten Island (“VNA”), moves to dismiss the plaintiffs’ complaint against it based
on mootness. For the following reasons, the motion is granted.
I
The Home- and Community-Based Services Waiver Program (“HCBS”) aims
to provide services to people with disabilities as an alternative to institutional care
in nursing homes. The program is funded by Medicaid and administrated by the
states. New York State’s version of the program is administrated by its Department
of Health (“DOH”), which in turn contracts with private not-for-profit organizations
to serve as Regional Resource Development Centers (“RRDCs”) throughout the
state. In 2010, VNA became the RRDC for the New York City Region.
In 2015, the plaintiffs sued DOH, its commissioner, Howard Zucker, and
VNA. Each alleges that his or her access to HCBS was improperly denied or
delayed. Collectively they argue that administration of the program in New York
City violates their rights under the Medicaid Act, the Americans With Disabilities
Act (“ADA”), the Rehabilitation Act, and the Due Process Clause of the Fourteenth
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Amendment. They seek primarily declaratory and injunctive relief, but also “such
other and further relief as the Court deems equitable and just.” Am. Compl. 50.
DOH’s contract with VNA terminated on October 31, 2019; it was not
renewed. Instead, DOH contracted with Westchester Independent Living Center
(“WILC”) to be the RRDC for the New York City Region through April 30, 2024.
Based on this development, VNA argues that the plaintiffs’ claims have become
moot.
II
“If an intervening circumstance deprives the plaintiff of a ‘personal stake in
the outcome of the lawsuit,’ at any point during litigation, the action can no longer
proceed and must be dismissed as moot.” Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 72 (2013) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472,
477-78 (1990)). A plaintiff loses the necessary “personal stake,” however, “only
when it is impossible for a court to grant any effectual relief whatever to the
prevailing party.” Knox v. Serv. Employees, 567 U.S. 298, 307 (2012) (internal
quotation marks omitted). Such a stake must be present “for each type of relief
sought,” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); therefore, the
Court examines each type of relief in turn.

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A.

Declaratory Relief
The plaintiffs first seek a declaration that VNA’s practices violated the

Medicaid Act, the ADA, the Rehabilitation Act, and the Fourteenth Amendment. In
the context of declaratory relief, the question of mootness is “whether the facts
alleged, under all the circumstances, show that there is a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.” Golden v. Zwickler, 394 U.S.
103, 108 (1969) (citation and internal quotation marks omitted).
The plaintiffs posit a “significant likelihood, if not an inevitability, that WILC
“will simply continue VNA’s policies and procedures absent a declaration that they
are unlawful,” and that a declaratory judgment as of to the legality of those policies
will “thus affect the proper design and administration of the program going
forward.” Pls.’ Mem. of Law 13. That may be true, but they are no longer VNA’s
policies and procedures; the proper party to defend them (if, indeed, they remain in
place) is the current RRDC, WILC. The plaintiffs expressly declined an opportunity
to amend their complaint to name WILC as a defendant.
B.

Injunctive Relief
The plaintiffs seek an injunction requiring VNA to remedy the claimed

statutory and constitutional violations in certain respects.

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This, too, is not

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meaningful relief; VNA could not comply with the injunction for the simple reason
that it is no longer in a position to make the changes sought.
The plaintiffs argue that VNA might one day return as the RRDC and,
therefore, that the case falls within the “capable of repetition, yet evading review”
exception to mootness. This exception applies if “(1) the challenged action was in
its duration too short to be fully litigated prior to its cessation or expiration, and (2)
there was a reasonable expectation that the same complaining party would be
subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per
curiam).
While the litigation has been protracted, nothing about VNA’s conduct makes
it inherently likely to evade review. Cf. Fox v. Bd. of Trustees of State Univ. of N.Y.,
42 F.3d 135, 143 (2d Cir. 1994) (“[T]here is no reason to believe that the issue
presented by this case could not be litigated in the four-year span of a standard
undergraduate education.”). More importantly, the Second Circuit has “described
the requisite likelihood of repetition as a demonstrated probability or a reasonable
expectation.” Id. (citations and internal quotation marks omitted). Plaintiffs can
only speculate that VNA might reapply to become the RRDC in 2024 and, even if it
did, that DOH would award it the contract. For these reasons, the Court finds the
exception not applicable.

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C.

“Other and Further Relief”
Money damages would, of course, constitute effectual relief regardless of

VNA’s current or future status as RRDC. The plaintiffs ask the Court to interpret
their prayer for “such other and further relief as the Court deems equitable and just,”
Am. Compl. 50, to include such damages. In the alternative, they seek leave to
amend to add a specific prayer for that relief.
The Second Circuit faced similar requests in Fox and rejected them:
We are especially reluctant in these circumstances to read a damages
claim into the Complaint’s boilerplate prayer for “such other relief as
the Court deems just and proper,” or to conclude that the district court
should have exercised its discretion to permit an amendment of the
Complaint to seek nominal damages.
42 F.2d at 141-42.
To be sure, the “circumstances” included dispositive defenses based on the
Eleventh Amendment and qualified immunity. See id. at 141. That is not a concern
here, but other circumstances warrant the same result. On October 31, 2018, VNA’s
counsel informed plaintiffs’ counsel that her client would not be seeking
reappointment as RRDC, and that its decision would moot the case. Plaintiffs filed
an amended complaint several months later, but did not add a claim for damages.
Then, as noted, VNA’s term ended on October 31, 2019. The parties stipulated that
the plaintiffs had until January 16, 2020, to file a second amended complaint; they

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opted not to do so. That the plaintiffs twice forewent an opportunity to add a claim
for damages weighs against allowing them to do so now.
Moreover, fact discovery proceeded on the assumption that plaintiffs were not
seeking damages and has now been closed for over a year. A belated claim for
damages would further delay these already protracted proceedings.
For those reasons, the Court declines the plaintiff’s invitation to inject a
damages claim into what has until now been a case about prospective relief.
III
The plaintiffs claim that VNA was a major source of their difficulties with
New York’s HCBS Waiver Program and are understandably frustrated that five
years of litigation may not result in a judgment against it. It is worth repeating,
however, that the reason is that VNA is no longer the RRDC, which may itself
bring about some of the changes the plaintiffs seek. In addition, their claims
against DOH and Zucker—both of whom have answered the complaint—will
proceed.
VNA’s motion to dismiss is granted.
SO ORDERED.
_/S/ Frederic Block_____
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
February 23, 2021
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