Fishman et al v. Daines, M.D. et al

Filing 144

ORDER granting 139 Motion for Preliminary Injunction. Plaintiffs' motion for a preliminary injunction is granted because plaintiffs have demonstrated that they are likely to succeed on the merits. Defendants are preliminarily enjoined from d ismissing administrative appeals of defaulting Medicaid applicants who are not given at least 10 days to respond to a written notice from defendants inquiring whether they would like their hearings rescheduled. Ordered by Judge Joseph F. Bianco on 3/4/2016. (Dolecki, Lauren)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-cv-5248 (JFB)(ARL)
_____________________

NEIL FISHMAN, BY HIS LEGAL GUARDIAN, SELMA FISHMAN, AND SURUJ SIRIKESHUN,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
VERSUS

RICHARD F. DAINES, M.D., AS COMMISSIONER OF THE NEW YORK STATE
DEPARTMENT OF HEALTH, AND JOHN PAOLUCCI, AS DEPUTY COMMISSIONER OF THE
OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE OF THE NEW YORK STATE
DEPARTMENT OF FAMILY ASSISTANCE,
Defendants.
___________________
MEMORANDUM AND ORDER
March 4, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiffs Neil Fishman (through his
legal guardian, hereinafter “Fishman”) and
Suruj Sirikeshun bring this class action
against the Commissioner of the New York
State Department of Health, who was
formerly Richard Daines, and then Nirav R.
Shah, and is now Howard Zucker, and
against the Commissioner of the Office of
Temporary and Disability Assistance of the
New York State Department of Family
Assistance (OTDA), who was formerly John
Paolucci, and then Kristin Proud, and is now
Samuel Roberts.
By Memorandum and Order dated
September 16, 2014, the Court denied
plaintiff’s motion for a preliminary
injunction requiring defendants to mail a

“default notice” to members of the plaintiff
class before their Medicaid appeals are
abandoned because they missed a scheduled
hearing. The Court found that plaintiffs
failed to make a clear showing that they
were likely to succeed on the merits of their
due process or statutory claims. Plaintiffs
appealed this decision, and by Summary
Order dated October 15, 2015, the Second
Circuit reversed this Court’s denial of the
preliminary injunction and remanded the
case for further proceedings.
For the reasons discussed below, the
Court grants plaintiffs’ motion for a
preliminary injunction. Plaintiffs have made
a clear showing that they are likely to
succeed on the merits of their statutory
claim. As previously held by this Court and

confirmed by the Second Circuit, 42 U.S.C.
§ 1396a(a)(3) creates a right to a fair hearing
before Medicaid benefits are revoked, which
is enforceable through § 1983. 42 C.F.R. §
431.223’s requirement that a Medicaid fair
hearing request not be dismissed without
good cause may be reasonably understood to
be part of the right to an opportunity for a
Medicaid fair hearing. Further, the State
Medicaid Manual – which provides in a
directive that participating states must
inquire by written notice as to whether
Medicaid appellants want their defaulted
hearings rescheduled and may only dismiss
them if no reply is received – is entitled to
Skidmore deference. To the extent that
defendants argue that the multiple prehearing notices are sufficient to satisfy the
statutory “fair hearing” requirement and
render a post-default notice unnecessary, the
Court disagrees based upon the Skidmore
deference that should be afforded to the
State Medicaid Manual. In other words,
Section 1396a(a)(3), as informed by the
relevant federal regulation and agency
interpretation of the regulation (through the
State Medicaid Manual), requires what due
process does not – namely, that the State,
before dismissing an appeal as abandoned
when the Medicaid appellant failed to
appear at the hearing, must ascertain through
a post-default notice whether the appellant
wishes any further action on his request for a
hearing.
In
sum,
plaintiffs
have
demonstrated a likelihood of success on the
merits, and therefore, plaintiffs’ motion for a
preliminary injunction, enjoining defendants
from dismissing administrative appeals of
defaulting Medicaid appellants who are not
given at least 10 days to respond to a written
notice from defendants inquiring whether
they would like their hearings rescheduled,
is granted.

I. BACKGROUND
A. Factual and Legal Background
The background facts of this case,
including an overview of the Medicaid
system and appeals process, are set forth
more fully in this Court’s opinion denying,
in large part, defendants’ motion to dismiss,
see Fishman v. Daines, 743 F. Supp. 2d 127
(E.D.N.Y. 2010), as well as the Court’s
opinion denying the preliminary injunction,
see Fishman v. Daines, No. 09-cv-5248
(JFB)(ARL), 2014 WL 4638962 (E.D.N.Y.
Sept. 16, 2014). In short, this case involves
the procedures by which defendants
determine that a Medicaid appeal is
abandoned. After defendants conclude that
a claimant is no longer entitled to Medicaid
benefits, they inform the claimant by letter,
and advise him that he may request a fair
hearing. See Fishman, 2014 WL 4638962,
at *1. If the request is timely, the claimant
may continue to receive “aid-continuing”
Medicaid coverage pending the outcome of
the hearing, and defendants send two
additional letters: first, they send an
acknowledgement that a fair hearing has
been requested, and then they send notice
that the fair hearing has been scheduled,
which includes logistical details and
instructions for requesting adjournments.
Id.
If a claimant does not attend his fair
hearing, whether because he did not receive
notice or for any other reason, he is
considered to have defaulted his hearing,
and risks having his appeal abandoned. 18
N.Y.C.R.R. § 358-5.5(a). It is possible to
restore a defaulted hearing to the calendar,
but the timing of the request to do so affects
the continuing provision of Medicaid
coverage. Id. § 358-5.5(c). Plaintiffs
contend that many class members lost aidcontinuing coverage, at least temporarily,
2

because they did not realize that they missed
their fair hearing.
The default notice
requested by plaintiffs would inquire as to
whether the defaulting Medicaid appellant
wanted his or her hearing rescheduled and
would give the appellant at least 10 days to
respond to the notice before dismissal of the
administrative appeal.

the date it was vacated on September 16,
2013.
The stipulation also included a provision
exempting prospective class members from
the requirements of 18 N.Y.C.R.R. § 3585.5. (Id. ¶ 3(f).) At that time, § 358-5.5
required defaulting Medicaid appellants to
request that their hearing be rescheduled
within 15 days of default, and to show good
cause, or to establish within 45 days that
they had not received the initial notice of the
hearing. 2014 WL 4638962, at *3. Under
the terms of the stipulation, the class
members were not bound by the 15- and 45day timelines, but instead by the single
timeline of ten days from the mailing date of
the default notice. Section 358-5.5 did not,
and still does not, address the issuance of a
written default notice.

B. Procedural Background
After the Court issued its opinion on the
motion to dismiss in 2010, the parties
reached a comprehensive stipulation, which
the Court ordered effective on April 6, 2011.
Among other things, the stipulation certified
the case as a class action, on behalf of “[a]ll
past, present, and future applicants and
recipients of Medical Assistance . . . in New
York State who: (a) requested or will
request an administrative fair hearing . . .
(b) failed or will fail to appear in-person . . .
and (c) suffered or will suffer dismissal of
their
administrative
appeal
without
defendants’ prior written inquiry.”1 (Dkt.
No. 69 ¶ 1.) The stipulation also required
defendants to begin issuing letters to
prospective class members who defaulted
their fair hearings. (Id. ¶ 3(b).) The letters
asked class members if their hearing request
was abandoned, and advised them that if
they intended to reschedule their hearing,
they must provide good cause for having
defaulted. (Id.) The letter also required the
class members to respond within ten days of
the letter’s mailing date, or else their hearing
request would be deemed abandoned. (Id.)
The letters were issued for approximately
two years, between the date the Court soordered the stipulation on April 6, 2011, and

The 15- and 45-day requirements were
eliminated when § 358-5.5 was amended,
effective October 23, 2012. Medicaid
appellants now have one year to request that
their hearings be rescheduled, but are also
subject to a new timeline. They must
request that their hearing be rescheduled
within 60 days of the date of default, or they
will be unable to recover retroactive benefits
for any period of lost coverage after they
defaulted.
See 18 N.Y.C.R.R. § 3585.5(c)(1). If their request to reschedule the
hearing is made 60 days or more after the
default, they will only receive medical
coverage prospectively, from the date of
their request. Id. § 358-5.5(c)(2).
After § 358-5.5 was amended, plaintiffs
moved to alter the stipulation so that the
plaintiff class could benefit from the longer
one-year timeline, and from the provision
addressing retroactive and prospective
coverage, which was not addressed by the
terms of the stipulation.
Defendants
opposed the motion. Ultimately, the Court

1

Although this stipulation was later vacated,
defendants have since stipulated to the certification of
the same class, both by letter on September 18, 2013,
and by a jointly-signed stipulation so-ordered by the
Court on March 10, 2014.

3

vacated the stipulation, pursuant to Fed. R.
Civ. P. 60(b)(5), concluding that it was not
equitable to bind defendants to both the
stipulation and the amended regulation at the
same time, because defendants had
negotiated the stipulation with the former
regulation in mind. If defendants were
required to extend the new regulation to the
prospective class members, the Court held
that they should receive the opportunity to
litigate the necessity of a written default
notice in light of the new regulation.

On November 30, 2015, plaintiffs filed a
supplemental memorandum of law in
support of their motion for preliminary
relief. Defendants filed their opposition on
January 22, 2016, and plaintiffs filed their
reply on January 29, 2016. Oral argument
was held on February 8, 2016. The matter is
fully submitted, and the Court has fully
considered the submissions.
II. STANDARD OF REVIEW
“A party seeking a preliminary
injunction must demonstrate (1) irreparable
harm in the absence of the injunction and (2)
either (a) a likelihood of success on the
merits or (b) sufficiently serious questions
going to the merits to make them a fair
ground for litigation and a balance of
hardships tipping decidedly in the movant’s
favor.” MyWebGrocer, LLC v. Hometown
Info, Inc., 375 F.3d 190, 192 (2d Cir. 2004)
(internal quotation marks and citation
omitted). As the Second Circuit reiterated
on the appeal in this case, “[a] mandatory
preliminary injunction ‘that alters the status
quo by commanding some positive act’ by
the state, as is requested here, ‘should issue
only upon a clear showing that the moving
party is entitled to the relief requested, or
where extreme or very serious damage will
result from a denial of preliminary relief.’”
Fishman v. Paolucci, 2015 WL 5999318, at
* 2 (emphases in original) (quoting
Cacchillo v. Insmed, Inc., 638 F.3d 401, 406
(2d Cir. 2011)).

On September 16, 2014, this Court
denied plaintiff’s motion for a preliminary
injunction, which would have prohibited
defendants
from
dismissing
the
administrative appeals of defaulting
Medicaid appellants who were not given at
least ten days to respond to a post-hearing
notice. This Court concluded that plaintiffs
failed to make a clear showing that they
were likely to succeed on their due process
or statutory claims. Plaintiffs appealed that
decision, and by Summary Order dated
October 15, 2015, the Second Circuit
reversed this Court’s denial of the
preliminary injunction and remanded the
case for further proceedings consistent with
its Summary Order.
See Fishman v.
Paolucci, – Fed. App’x – , No. 14-3715,
2015 WL 5999318 (2d Cir. Oct. 15, 2015).
Specifically, the Second Circuit found that
this Court “did not separately conduct an
analysis of 42 U.S.C. § 1396(a)(3)” and
remanded the motion for a preliminary
injunction in order “to provide [this Court]
with the opportunity to do so in the first
instance.” Id. at *3. The Second Circuit
directed that, on remand, this Court “should
ask whether plaintiffs are likely to succeed
on their claim that New York violates their §
1396a(a)(3) fair hearing right as defined
further by any relevant federal regulations,
including 42 C.F.R. § 431.223.” Id.

III. DISCUSSION
A. Irreparable Harm
This Court previously held that plaintiffs
satisfied the irreparable harm requirement,
see Fishman, 2014 WL 4638962, at *6, and
on appeal, the Second Circuit found that this
Court did not abuse its discretion in finding
4

irreparable harm because “[a] lack of
medical services is exactly the sort of
irreparable harm that preliminary injunctions
are designed to address.” Fishman v.
Paolucci, 2015 WL 5999318 at *2. Thus,
the Court need not, and will not, address the
irreparable harm inquiry again.

1. 42 C.F.R. §§ 431.223
As the Second Circuit articulated in its
summary order, “[w]hen a federal statute
creates a right enforceable through 42
U.S.C. § 1983, federal regulations ‘may be
relevant in determining the scope of the
right conferred by Congress.’” Fishman v.
Paolucci, 2015 WL 5999318 at *3 (quoting
Shakhnes v. Berlin, 689 F.3d 244, 251 (2d
Cir. 2012)). “A district court must inquire,
then, whether there is a relevant regulation
that ‘merely further defines or fleshes out
the content of that right.’” Id. (quoting
Shakhnes, 689 F.3d at 251, 254-256).

B. Success on the Merits
In the Court’s 2010 Memorandum and
Opinion on the motion to dismiss, this Court
held that 42 U.S.C. § 1396a(a)(3) created a
right to a fair hearing before Medicaid
benefits are revoked, which is enforceable
through § 1983. See Fishman, 743 F. Supp.
2d at 140-44. On appeal, the Second Circuit
made clear that this is still the law and that
this Court was correct in that regard. See
Fishman v. Paolucci, 2015 WL 5999318, at
*3 n.1 (“We have held that § 1396a(a)(3) is
enforceable through § 1983, see Shakhnes,
689 F.3d at 251, and that precedent still
controls. . . .”)

Although, 42 U.S.C. § 1396a(a)(3) does
not directly address the circumstances under
which the fair hearing can be dismissed, this
Court again finds that the federal regulations
implementing 42 U.S.C. § 1396a(a)(3) are
“relevant in determining the scope of the
‘fair hearing’ requirement set out in §
1396a(a)(3).” Fishman, 743 F. Supp. 2d at
143. 42 C.F.R. § 431.223 provides that the
“agency may deny or dismiss a request for a
hearing if (a) [t]he applicant or recipient
withdraws the request in writing; or (b) [t]he
applicant or recipient fails to appear at a
scheduled hearing without good cause.”
Additionally, 42 C.F.R. § 431.205 provides
that “[t]he hearing system must meet the due
process standards set forth in Goldberg v.
Kelly, 397 U.S. 254 (1970), and any
additional standards specified in this
subpart.” 42 C.F.R. § 431.205(d) (emphasis
added); see also Fishman v. Paolucci, 2015
WL 5999318, at *3.

On remand, this Court addresses the
narrow issue of “whether the scope of §
1396a(a)(3), as fleshed out by federal
regulations, is broader than what is
guaranteed by the Due Process Clause with
respect to immediate dismissal of appeals
and termination of benefits when a
beneficiary defaults” and, if so, “whether
plaintiffs are likely to succeed on their claim
that New York violates their § 1396a(a)(3)
fair hearing right as defined further by any
relevant regulations, including 42 C.F.R. §
431.223.” Fishman v. Paolucci, 2015 WL
5999318, at *3-4. For the reasons explained
in detail below, the Court finds that
plaintiffs have made a clear showing that
they are likely to succeed on the merits of
their statutory claim, and thus, that a
preliminary injunction should be granted.

As the Second Circuit has held, a
regulation that “merely further defines or
fleshes out the content of the right to an
opportunity to Medicaid fair hearings,”
“may reasonably be understood to be part of
the content of the right to an opportunity for
Medicaid fair hearings.” Shakhnes, 689 F.3d
5

at 254-56 (internal quotation marks
omitted). In Shakhnes, the Second Circuit
held that the right to an opportunity for a
Medicaid fair hearing under 42 U.S.C. §
1396a(a)(3), enforceable under § 1983, also
encompassed the right to receive a hearing
decision ordinarily within 90 days of a fair
hearing request. Id. at 256. The Second
Circuit noted that “the Medicaid Act does
not specify a time frame within which
Defendants must provide Plaintiffs with
Medicaid fair hearings; the relevant
statutory provision says only that
Defendants must grant ‘an opportunity’ for
such hearings to individuals whose claims
for medical assistance have not been decided
with reasonable promptness.” Id. at 254-55.
Thus, the Second Circuit reasoned that the
regulation’s requirement that an agency
decision occur “ordinarily within 90 days”
of the request, 42 C.F.R. § 431.244(f),
“‘merely defines’ the time frame with
respect to Plaintiff’s right to an
‘opportunity’ for Medicaid fair hearings.”
Id. at 255.

be dismissed without good cause.
Therefore, this Court concludes that 42
C.F.R. § 431.223’s good cause requirement
may be reasonably understood to be part of
the content of the right to an opportunity to
Medicaid fair hearings.2
2. State Medicaid Manual
The Court next finds that the State
Medicaid Manual (the “Manual”) is entitled
to Skidmore deference.
This Manual is “an informal rule issued
by the Department of Health and Human
Services’ . . . Centers for Medicare and
Medicaid Services . . . .” Wong v. Doar, 571
F.3d 247, 250 (2d Cir. 2009). As relevant to
this case, it provides that a Medicaid fair
hearing request may be considered
abandoned when:
neither the claimant nor his
representative appears at scheduled
hearing, and if within a reasonable
time (of not less than 10 days) after
the mailing of an inquiry as to
whether he wishes any further action
on his request for a hearing no reply
is received.

Similar to the regulation at issue in
Shakhnes, here, 42 C.F.R. § 431.223 merely
further defines or fleshes out the scope of 42
U.S.C. § 1396a(a)(3). The statute states that
“[a] state plan for medical assistance must . .
. provide for granting an opportunity for a
fair hearing before the State agency to any
individual whose claim for medical
assistance under the plan is denied or is not
acted upon with reasonable promptness.” 42
U.S.C. § 1396a(a)(3). 42 C.F.R. § 431.223
provides that the “agency may deny or
dismiss a request for a hearing if (a) [t]he
applicant or recipient withdraws the request
in writing; or (b) [t]he applicant or recipient
fails to appear at a scheduled hearing
without good cause.” Like the 90 day time
frame in Shakhnes, 42 C.F.R. § 431.223 also
fleshes out the right to a fair hearing by
providing that a fair hearing request may not

Manual § 2902.3(B).
“An agency interpretation that does not
qualify for Chevron deference is still entitled
to ‘respect according to its persuasiveness,’
as evidenced by ‘the thoroughness evident in
[the agency’s] consideration, the validity of
its reasoning, its consistency with earlier and
later pronouncements, and all those factors
2

Notably, defendants do not dispute that 42 C.F.R. §
431.223 is entitled to deference, but rather argue that
they have satisfied the good cause requirement by
other means, namely N.Y.C.R.R. § 358-5.5(a)(2), and
that post-default notice “is not reasonably implicit in
the federal regulation’s good-cause requirement.”
(See Pl.’s Opp’n, at 20.)

6

which give it power to persuade.’” Estate of
Landers v. Leavitt, 545 F.3d 98, 107 (2d Cir.
2008), as revised (Jan. 15, 2009) (quoting
United States v. Mead Corp., 533 U.S. 218
at 221, 228 (2001) (alteration in original).
In conducting this Skidmore analysis, the
Court notes that the Second Circuit has
previously found that the State Medicaid
Manual is entitled to deference under
Skidmore v. Swift & Co., 323 U.S. 132
(1944) due to its “persuasiveness, as
evidenced by the thoroughness evident in
the agency’s consideration, the validity of its
reasoning, its consistency with earlier and
later pronouncements, and all those factors
which give it power to persuade.” Wong,
571 F.3d at 260 (2d Cir. 2009) (internal
quotation marks and citations omitted); see
also Shakhnes, 689 F.3d at 259 (finding that
the State Medicaid Manual is owed
deference). In finding that the Manual was
entitled to judicial deference, the Second
Circuit noted that “the Supreme Court has
signaled that HHS interpretations should
receive more respect than the mine-run of
agency interpretations,” Wong, 571 F.3d at
260 (citing Estate of Landers, 545 F.3d at
107), and thus, that “even relatively informal
CMS interpretations warrant respectful
consideration due to the complexity of the
Medicaid statute and the considerable
expertise of the administering agency.” Id.
(internal citation and quotation marks
omitted).
“[I]n cases such as those
involving Medicare or Medicaid, in which
CMS, ‘a highly expert agency, administers a
large complex regulatory scheme in
cooperation with many other institutional
actors, the various possible standards for
deference’ — namely, Chevron and
Skidmore — ‘begin to converge.’ Estate of
Landers, 545 F.3d at 107 (quoting Cmty.
Health Ctr. v. Wilson-Coker, 311 F.3d 132,
138 (2d Cir. 2002)) (internal alteration
omitted); see also Wong, 571 F.3d at 260
(same). Although the Manual does not

create a private right of action, because it is
HHS’s “‘informal interpretation’” of its own
regulations, it “warrants ‘some significant
measure of deference.’” Morenz v. WilsonCoker, 415 F.3d 230, 235 (2d Cir. 2005)
(quoting Rabin v. Wilson-Coker, 362 F.3d
190, 197 (2d Cir. 2004)). Indeed, “[a]n
agency’s interpretation of its own statute and
regulation ‘must be given controlling weight
unless it is plainly erroneous or inconsistent
with the regulation.’” Fowlkes v. Adamec,
432 F.3d 90, 97 (2d Cir. 2005) (quoting
Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512 (1994)).3
An analysis of the Skidmore factors in
this case leads this Court to conclude that
the Manual is entitled to a great deal of
persuasive weight.
As an initial matter, the Second Circuit
noted that the relevant section of the Manual
is mandatory and “makes clear that only
when a hearing is abandoned by failing to
respond to a post-default notice may the
state dismiss an appeal. While the state may
decide not to dismiss an appeal if the postdefault notice receives no response, if it
chooses to dismiss it must wait at least ten
days.” Fishman v. Paolucci, 2015 WL
5999318, at *3 n.2 (emphases in original).
The Manual’s mandatory post-default notice
requirement demonstrates thoroughness
evident in the agency’s consideration, and
thus, meets the first Skidmore criterion for
heightened deference.
The Court further finds that the
Manual’s post-default notice requirement is
consistent with the text and structure of 42
Further, the Manual’s forward explains that it
“provides instructions, regulatory citations, and
information for implementing provisions of Title
XIX of the Social Security Act (the Act).
Instructions are official interpretations of the law and
regulations, and as such, are binding on Medicaid
State agencies.” Wong, 571 F.3d at 253 n.6.
3

7

subsequently revised 1968 version,6 and
when Supplement D was added to the
Handbook in 1966 to address the new
Medicaid program.7 Such consistency over
time also weighs in favor of treating the
Manual with deference. See Wong, 571 F.3d
at 262 (giving deference to agency’s
construction of statute that was consistent
for fifteen years); Estate of Landers, 545
F.3d at 107-108 (deferring to agency’s
construction of statute that was first adopted
forty years prior).

U.S.C. § 1396(a)(3) and 42 C.F.R. §
431.223. Although 42 U.S.C. § 1396(a)(3)
does not address the circumstances under
which a Medicaid appeal will be considered
abandoned, it should not be “infer[red] from
statutory silence a congressional intent to
have no rules whatsoever apply.” Wong,
571 F.3d at 260. Further, 42 C.F.R. §
431.223, by which § 1396a(a)(3) is
implemented, provides that good cause is
required in order to find a case has been
abandoned. Specifying post-default notice
as the means by which to make this good
cause determination is not inconsistent with
either 42 U.S.C. § 1396(a)(3)’s fair hearing
requirement or the implementing regulations
of 42 C.F.R. § 431.223.

Further, the Manual’s post-default notice
requirement is also entitled to deference
because it is applicable in all instances. See
Estate of Landers, 545 F.3d at 110 (“‘The
deference due’ to an agency interpretation
‘is at the high end of the spectrum of
deference’ when ‘the interpretation in
question is not merely ad hoc but . . . is
applicable to all cases.’”) (quoting
Chauffer’s Training Sch., Inc. v. Spellings,

Additionally, the current version of §
2902.3 of the Manual has remained
unchanged since August 1988. Further, very
similar language was used in the Manual’s
predecessors, the Handbook of Public
Assistance Administration beginning in
January 1954,4 in the Handbook’s revised
1965 version,5 in the Handbook’s

See Pl.’s Addendum I, Handbook of Public
Assistance Administration § 6330(f) (1968) (“The
agency does not deny or dismiss a request for a
hearing except where it has been withdrawn by the
claimant in writing or abandoned. A request for a
hearing is considered abandoned only if neither the
claimant nor his representative appears at the time
and place agreed upon for the hearing, and if, within
a reasonable time after the mailing of an inquiry as to
whether he wishes any further action taken on his
request for a hearing, no reply is received by either
the local or State agency”).
6

See Pl.’s Addendum D, Handbook of Public
Assistance Administration, § 6310 ¶ 4 (1954) (“A
request for a hearing may be considered abandoned if
neither the claimant nor his representative appears at
the time and place agreed on for the hearing, and if,
within a reasonable time after the mailing of an
inquiry as to whether he wishes any further action
taken on his request for a hearing, no reply is
received by either the local or State agency.”).
4

See Pl.’s Addendum E, Handbook of Public
Assistance Administration Supp. D § D-6530(2)
(1966) (“The claimant’s opportunity for a fair hearing
includes: . . . (c) provision that the agency does not
deny or dismiss a request for a hearing except where
it has been withdrawn by the claimant in writing or
abandoned. A request for a hearing is considered
abandoned only if neither the claimant nor his
representative appears at the time and place agreed
upon for the hearing, and if, within a reasonable time
after the mailing of an inquiry as to whether he
wishes any further action to be taken on his request
for a hearing, no reply is received by either the local
or State agency.”)
7

See Pl.’s Addendum H, Handbook of Public
Assistance Administration § 6331 (1965) (“[T]he
agency may not deny or dismiss a request for a
hearing, except where it has been abandoned by the
claimant. A request for a hearing may be considered
abandoned if neither the claimant nor his
representative appears at the time and place agreed
upon for the hearing, and if, within a reasonable time
after the mailing of an inquiry as to whether he
wishes any further action taken on his request for a
hearing, no reply is received by either the local or
State agency.”)
5

8

478 F.3d 117, 129 (2d Cir. 2007)) (internal
alteration omitted); Wong, 571 F.3d at 261
(same).
The Manual does not draw
distinctions when a case is considered
abandoned apart from the conditions set
forth in § 2902.3, and thus, is applicable to
all individuals who fail to appear at their
Medicare hearing.

enjoined from dismissing administrative
appeals of defaulting Medicaid applicants
who are not given at least 10 days to
respond to a written notice from defendants
inquiring whether they would like their
hearings rescheduled.
SO ORDERED.

Therefore, because the Manual’s postdefault notice requirement is mandatory,
consistent with 42 U.S.C. § 1396a(a)(3) and
its implementing regulations, has remained
in place for many years, and is applicable in
all instances, the Court finds that it is
entitled to a high level of deference under
the Skidmore criteria.8

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 4, 2016
Central Islip, NY
***
Plaintiffs are represented by Peter Vollmer,
Law Office of Peter Vollmer, P.C., 19
Hawthorne Road, Sea Cliff, NY 11579.
Defendants are represented by Susan M.
Connolly, New York State Office of the
Attorney General, 300 Motor Parkway,
Suite 230, Hauppauge, NY 11788.

Accordingly, because 42 C.F.R. §
431.223’s requirement that a Medicaid fair
hearing request not be dismissed without
good cause may be reasonably understood to
be part of the right to an opportunity to a
Medicaid fair hearing, and because the
Manual’s post-default notice requirement is
entitled to a high level of deference, this
Court finds that plaintiffs are likely to
succeed on the merits of their claim.
IV. CONCLUSION

defendants from dismissing the administrative
appeals of applicants who are not given at least
fifteen days to respond to the post-default notice.
The Court declines to grant an additional five days to
respond. The Manual clearly states that a Medicaid
fair hearing request may be considered abandoned
when “neither the claimant nor his representative
appears at a scheduled hearing, and if within a
reasonable time (of not less than 10 days) after the
mailing of an inquiry as to whether he wishes any
further action on his request for a hearing no reply is
received.” Pl.’s Addendum A, Manual § 2902.3(B)
(emphasis added). To read an additional five days
into the Manual’s directive would be inconsistent
with the notion that the Manual is entitled to
Skidmore deference. In promulgating the Manual,
HHS selected a minimum of ten days to respond to a
post-hearing notice, and absent any evidence
demonstrating why such a determination should not
be followed, the Court declines to add an additional
five days to the Manual’s provision.

Plaintiffs’ motion for a preliminary
injunction is granted because plaintiffs have
demonstrated that they are likely to succeed
on the merits.9 Defendants are preliminarily
8

To the extent that defendants argue that the Manual
should not be given deference because “the State’s
Medicaid program has HHS approval and HHS has
never taken action against State Defendants for not
using a post-default notice,” (Pl.’s Opp’n, at 20), the
Court disagrees that a lack of action by HHS
indicates approval. To the contrary, it is far from
clear that silence or a failure to take the drastic step
of cutting off Medicaid funding demonstrates
agreement with the State’s position, which is contrary
to HHS’s Manual.
9
At oral argument, plaintiffs’ counsel requested that
that plaintiffs be granted an injunction prohibiting

9