Scofero et al v. Zucker

Filing 24

DECISION AND ORDER denying without prejudice 19 Plaintiffs' Motion for Preliminary Injunction. Signed by Hon. Michael A. Telesca on 7/25/2016. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSEPH SCOFERO, GAIL LOGAN, and
BARBARA LANE, by her next friend
MONICA FOBBS, on behalf of
themselves and all other similarly
situated,

DECISION and ORDER
No. 6:16-cv-06125(MAT)

Plaintiffs,
-vsHOWARD ZUCKER, in his official
capacity as Commissioner of the New
York State Department of Health,
Defendant.

INTRODUCTION
Represented by counsel, Gail Logan (“Ms. Logan”), Joseph
Scofero (“Mr. Scofero”), and Barbara Lane (“Ms. Lane”), by her next
friend Monica Fobbs (collectively, “Plaintiffs”), bring this action
on behalf of themselves and a putative class of New York State
Medicaid

beneficiaries1

to

compel

Howard

Zucker

(“Zucker”

or

“Defendant”), in his official capacity as the Commissioner of the
New York State Department of Health (“DOH”). Plaintiffs allege

1

Plaintiffs define the class as “[a]ll current and future New York State
Medicaid beneficiaries with disabilities who (1) have been found eligible for
Managed Long Term Care (MLTC) by the conflict-free assessor (Maximus or its
successors), (2) can be safely and appropriately cared for in a community
setting, (3) have initiated contact with one or more MLTC plan(s) in order to
enroll in a plan, and (4) have not been able to enroll in an MLTC plan before the
expiration of the Maximus authorization, because all plans contacted have,
through act or omission, either denied or discouraged enrollment.” Plaintiffs’
Motion for Class Certification is pending.

-1-

causes of

action

under the

Medicaid

Act,

the

Americans

with

Disabilities Act (“ADA”), and Section 504 of the Rehabilitation
Act, and their respective implementing regulations.
Plaintiffs have filed a Motion to Certify Class (Dkt #2), to
which Defendant has not filed responsive papers. This motion
remains

pending.

Plaintiffs

recently

moved

for

a

preliminary

injunction (Dkt #19) seeking an order that “requires Defendant
Zucker immediately to arrange for” Mr. Scofero and Ms. Logan “to
receive the 24-hour in-home care services they and their medical
providers have requested” and to require the MLTC plans to provide
written notice regarding certain determinations they have made.
See Dkt #19-4 at 25.
For the reasons discussed below, Plaintiff’s Motion for a
Preliminary Injunction is denied without prejudice.
FACTUAL BACKGROUND
I.

Overview of the State Medicaid Program as Relevant to this
Case
As

Commissioner

of

DOH,

Defendant

is

charged

with

administering New York State’s Medicaid Program consistent with the
Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act.
As a public entity within the meaning of Title II of the ADA, and
the recipient of federal funding, DOH is subject to Section 504 of
the Rehabilitation Act.
New York has designated DOH as the single state agency to be
responsible for administering the Medicaid Program. DOH may not
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delegate its “authority to supervise the plan or to develop or
issue policies, rules, and regulations or program matter.” 42
C.F.R. § 431.10(e)(1).
Under Section 1115 of the Social Security Act, the Secretary
of the Department of Health and Human Services (“HHS”) may allow
states to implement “experimental, pilot or demonstration projects”
that are “likely to assist in promoting the objectives” of the
Medicaid Act. 42 U.S.C. § 1315(a). New York has operated its
Medicaid Managed Care programs through a Section 1115 waiver, first
approved in 1997, called the “Partnership Plan” (Waiver number
11-W-00114/2). See N.Y. SOC. SERV. L. § 364-j(2)(a). The Partnership
Plan

waives

three

provisions

of

the

federal

Medicaid

Act

(statewideness, comparability, and freedom of choice), but does not
waive the mandatory home health requirement, see 42 U.S.C. §
1396a(a)(10(D); the reasonable promptness provision, see 42 U.S.C.
§ 1396a(a)(8); or the due process requirement, see 42 U.S.C. §
1396a(a)(3). The Partnership Plan allows New York to require most
Medicaid beneficiaries to enroll in a managed care plan in order to
receive covered services.
The term “home care” is an umbrella term covering several
different types of services intended to meet Medicaid recipients’
need for assistance in the home. At issue here are personal care
services (“PCS”) which is an optional Medicaid service, i.e.,
states participating in the Medicaid program may include payment

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for PCS but are not required to do so. At times relevant to this
lawsuit, New York’s Medicaid program has included coverage of PCS,
so long as the recipient has been assessed as meeting the PCS
eligibility requirements, which include a current physician’s order
describing

the

recipient’s

medical

condition

and

need

for

assistance with PCS tasks (e.g., bathing, toileting, and walking).
The number of hours of PCS the recipient should receive is not a
medical determination, but instead depends on nonmedical factors,
such as the recipient’s living arrangements and home environment,
as well as the potential availability of any informal caregivers.
Determining PCS eligibility and the appropriate number of hours and
types of such services thus includes a comprehensive social and
nursing assessment.
Since 2012, Medicaid beneficiaries aged 21 and older, who are
also enrolled in Medicare (so-called dual enrollees), and who are
in need of more than 120 days per year of home care services, have
been required to enroll in a Managed Long Term Care (“MLTC”) plan
in

order

to

receive

in-home

care

services

through

Medicaid.

Defendant has entered into contracts with the various MLTC plans
(which are not parties to this action), pursuant to which he pays
each plan a monthly capitated rate for every Medicaid beneficiary
enrolled in the plan. The MLTC plans in turn provide care services
to their enrollees. The MLTC plans must make Medicaid services
included within their benefit package available to the same extent

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they are available to recipients of fee-for-service Medicaid. See
42 U.S.C. § 1396b(m)(1)(A)(i). Under the MLTC Contract,2 only the
local Social Services districts (none of which are parties to this
action), or an entity designated by DOH, may deny enrollment; an
MLTC

plan

cannot

deny

enrollment.

See

MLTC

Contract,

Art.

V(B)(3)(b).
Medicaid beneficiaries expected to enroll in MLTC plans in
order to receive in-home care services must first be assessed for
eligibility through the Conflict-Free Evaluation and Enrollment
Center (“CFEEC”). Defendant has contracted with a company called
Maximus, which is not a party to this action, to provide all
activities related to the CFEEC, including the determination of
whether an individual is eligible to receive in-home care through
an MLTC plan. The CFEEC evaluation is limited to determining
whether an individual is eligible for MLTC enrollment and whether
in-home care services will allow him or her to remain safely in the
community. The CFEEC makes no recommendation as to the specific
level of care a beneficiary may require beyond the threshold
requirement of more than 120 days of in-home care.
After being found eligible for MLTC, beneficiaries must then
apply

to

a

specific

MLTC

plan,

which

must

conduct

another

assessment of the beneficiary in order to determine the level of
2

Available at
https://www.health.ny.gov/health_care/medicaid/redesign/docs/mrt90_partial_cap
itation_model.pdf

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in-home care the plan will authorize. Enrollment in an MLTC plan
occurs after the plan has conducted its assessment and agreed to
authorize services; the MLTC plan does not provide any services
until enrollment becomes effective.
II.

The Medicaid Beneficiaries Seeking Injunctive Relief
A.

Ms. Logan

Sixty-eight year-old Ms. Logan, an Erie County resident, has
cerebral palsy and had lived by herself in an apartment for many
years until March 2014, when she sprained her ankle. After being
hospitalized briefly, she was discharged to a nursing facility for
short-term rehabilitation but has remained there for two years.
Currently, she cannot walk independently, which she attributes to
inadequate rehabilitative services. Ms. Logan asserts that she is
medically appropriate for home care services, but the MLTC plans to
which she has applied have either declined to offer her a benefits
package

with

24-hour

care

or

have

found

her

ineligible

for

enrollment. Defendant pays for Ms. Logan’s 24-hour care at the
nursing home facility through fee-for-service (“FFS”) Medicaid,
pending her enrollment in an MLTC plan.
Plaintiffs assert that Ms. Logan has been denied physical
therapy at the nursing home, which has caused her muscles to
atrophy and her condition to deteriorate. She is no longer able to
walk on her own and is not permitted to take care of basic needs on
her own; she must use a Hoyer lift to transfer from her bed to her

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wheelchair. Ms. Logan’s treating physician has opined that she can
be served appropriately in the community, but in order to do so she
will need 24-hour care at home. Because she is covered by both
Medicaid and Medicare and now needs more than 120 days of in-home
care, she is required to enroll in an MLTC plan to obtain in-home
care. Ms. Logan has been assessed multiple times by Defendant’s
conflict-free assessor, Maximus, and each time been found eligible
for in-home care services and enrollment in an MLTC plan. However,
the MLTC plans with which she has sought to enroll have, for
various reasons, refused to authorize 24-hour in home care. Ms.
Logan is in danger of losing her apartment, which is paid for
through

a

housing

voucher

that

requires

her

to

live

in

the

apartment. Pending her enrollment in an MLTC plan, Defendant pays
for Ms. Logan’s 24-hour care at the nursing home through fee-forservice Medicaid.
B.

Mr. Scofero

Sixty-eight year-old Mr. Scofero, a homeowner in Wayne County,
suffered a stroke in January 2015 that left him unable to move his
left side. Since the stroke, he has been confined to a nursing home
in Monroe County. Mr. Scofero indicates that he assessed multiple
times by Defendant’s conflict-free assessor, Maximus, and been
found eligible for community-based services and MLTC enrollment. He
asserts that every MLTC plan he has approached for services has
either failed to authorize sufficient services, i.e., 24-hour, in-

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home care, for him; or has refused to complete the assessment,
because they will not authorize that amount of services for him.
Mr. Scofero has also requested services from the Wayne County
Department of Social Services (“Wayne County DSS”), which he
alleges

delayed

for

months

before

conducting

an

assessment.

According to Mr. Scofero, after the assessment, Wayne County DSS
refused

to

provide

him

with

24-hour

home

care.

Pending

his

enrollment in an MLTC plan, Defendant pays for Mr. Scofero’s
24-hour care at the nursing home through fee-for-service Medicaid.
GENERAL LEGAL PRINCIPLES
I.

Standards Relevant to Preliminary Injunctions
For over 50 years, it was well settled in the Second Circuit

that a party seeking injunctive relief was required to satisfy a
two-pronged test by showing “(a) irreparable harm and (b) either
(1) likelihood of success on the merits or (2) sufficiently serious
questions going to the merits to make them a fair ground for
litigation and a balance of hardships tipping decidedly toward the
party requesting the preliminary relief.” Christian Louboutin S.A.
v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 215 (2d
Cir. 2012). In three decisions issued in 2008 and 2009, the Supreme
Court articulated a four-factor test for determining whether a
preliminary injunction should issue. See, e.g., Winter v. Nat’l
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A plaintiff
seeking a preliminary injunction must establish that [1] he is

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likely to succeed on the merits, that [2] he is likely to suffer
irreparable harm in the absence of preliminary relief, that [3] the
balance of equities tips in his favor, and that [4] an injunction
is in the public interest.”).
District courts in this Circuit have observed that “[d]espite
the seeming inconsistency of the standards for a preliminary
injunction set forth by the Supreme Court and the Second Circuit,
the Second Circuit has subsequently reaffirmed that its standard
remains good law.” Marblegate Asset Mgmt. v. Educ. Mgmt. Corp., 75
F.

Supp.3d

592,

604

(S.D.N.Y.

2014)

(citing

Citigroup

Glob.

Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598
F.3d 30, 38 (2d Cir. 2010) (finding no indication in Winter that
Supreme Court meant “to abrogate the more flexible standard for a
preliminary injunction” utilized in the Second Circuit, “seven of
its sister circuits, and in the Supreme Court itself”)). In recent
cases, the Second Circuit has taken different approaches. It has
combined the Winter factors with its own two-factor test, see
Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d
Cir. 2015) (incorporating additional factors), and it has given the
plaintiffs

the

option

of meeting

either test,

see

Am.

Civil

Liberties Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015)
(noting that “[a] party seeking a preliminary injunction must
either show[,]” that he meets the two-part test set forth in the
Second Circuit’s own precedent, e.g., Christian Louboutin S.A., 696

-9-

F.3d at 215, or the four-part test articulated by the Supreme Court
in, e.g., Winter, 555 U.S. at 20). Thus, “[t]o say that there is
confusion in this Circuit regarding the appropriate standard for
assessing an application for a preliminary injunction would be an
understatement.” Golden Krust Patties, Inc. v. Bullock, 957 F.
Supp.2d 186, 194 (E.D.N.Y. 2013) (quoting Salinger v. Colting, 607
F.3d 68, 79 (2d Cir. 2010)); accord, e.g, Gen’l Mills, Inc. v.
Chobani, LLC, No. 3:16-CV-58, 2016 WL 356039, at *5 (N.D.N.Y. Jan.
29, 2016).
II.

Prohibitory Versus Mandatory Injunctions
An additional level of complexity arises due to the fact that

the two different types of preliminary injunctions—prohibitory and
mandatory—require

different

analyses.

While

“[a]

preliminary

injunction is usually prohibitory and seeks generally only to
maintain the status quo pending a trial on the merits[,]” Louis
Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 114 (2d
Cir. 2006) (citation omitted), “[a] mandatory injunction . . . is
said to alter the status quo by commanding some positive act.” Tom
Doherty Associates, Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d
Cir. 1995) (citation omitted). “This distinction matters, since a
party seeking a ‘mandatory’ preliminary injunction must demonstrate
a ‘clear’ or ‘substantial’ likelihood of success on the merits in
addition to the other strictures imposed by the standard . . . [for
prohibitory

preliminary

injunctions].”

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General

Mills,

Inc.

v.

Chobani, LLC, 2016 WL 356039, at *7 (quoting Tom Doherty Assocs.,
Inc., 60 F.3d at 34); see also Cacchillo v. Insmed, Inc., 638 F.3d
401, 406 (2d Cir. 2011) (“The burden is even higher on a party . .
. that seeks ‘a mandatory preliminary injunction that alters the
status quo by commanding some positive act, as opposed to a
prohibitory injunction seeking only to maintain the status quo.’”)
(quotation omitted). A mandatory preliminary injunction “‘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.’” Id. (quotation
and internal quotation marks omitted; emphases supplied); see also,
e.g., Stanley v. Univ. of So. California, 13 F.3d 1313, 1320 (9th
Cir. 1994) (“When a mandatory preliminary injunction is requested,
the district court should deny such relief ‘unless the facts and
law clearly favor the moving party.’”) (quotation and internal
quotation marks omitted); Exhibitors Poster Exch., Inc. v. Nat’l
Screen Serv. Corp., 441 F.2d 560, 561-62 (5th Cir. 1971) (“[W]hen
a plaintiff applies for a mandatory preliminary injunction, such
relief ‘should not be granted except in rare instances in which the
facts

and

law

are

clearly

in

favor

of

the

moving

party.’”)

(quotation omitted).
DISCUSSION
I.

Preliminary Matters
While Plaintiffs partially phrase their demand for relief in

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prohibitory

terms,

they

are

actually

seeking

a

mandatory

preliminary injunction, because they are asking that this Court
“order[ ] an affirmative act or mandate[ ] a specified course of
conduct[,]” Tom Doherty Assocs., Inc., 60 F.3d at 34, be performed
by Defendant. Specifically, Plaintiffs want this Court to compel
Defendant

to

“immediately

arrange

for”

Plaintiffs

to

begin

receiving 24-hour in-home care services, though it is unclear by
whom, exactly,

these

services

are

to

be

provided.

Since

the

gravamen of Plaintiffs’ complaint is that, to date, they have been
unable to obtain 24 hour in-home care, the requested injunction
clearly will “alter the status quo[,]” Tom Doherty Assocs., Inc.,
60 F.3d at 34. Plaintiffs have ignored the distinction between
prohibitory and mandatory injunctions, and consequently have not
attempted to fulfill the heightened “clear showing” standard. See
id.
Likewise, Plaintiffs have not addressed the Winter four-factor
test vis-à-vis the Second Circuit’s traditional two-factor test.
See

Pl’s

Mem.

(Dkt

#19-4),

p.

16

(stating

that

they

must

demonstrate irreparable harm, a “likelihood of success” on the
merits, and a balance of hardships tipping in their favor). As
discussed further below, the Court finds that Plaintiffs have not
fulfilled the less demanding standard for obtaining a prohibitory
injunction, i.e., a substantial likelihood of success of the
merits, with regard to their claims. It necessarily follows that

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they have not made the “clear showing” of entitlement to relief
that is required to obtain the mandatory injunction they seek.
Because Plaintiffs are unable to make the required showing on the
merits element, the Court need not address the remaining elements.
II.

First Claim for Relief:
Promptness” Provision

Violation

Plaintiffs

Defendant’s

assert

that

Medicaid’s

“failure

“Reasonable

to

ensure

provision of medically necessary in-home care” to Plaintiffs and
putative

class

members

“violates

the

reasonable

promptness

provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(8), enforceable
by Plaintiffs pursuant to 42 U.S.C. § 1983.” Supplemental Complaint
¶ 246.
Title 42 U.S.C., Section 1983 creates a cause of action for
the infringement of rights guaranteed by federal law, e.g., Maine
v. Thiboutot, 448 U.S. 1, 4

(1980), including, in certain cases,

violations of the Medicaid Act. E.g., Equal Access for El Paso,
Inc. v. Hawkins, 562 F.3d 724, 729 n.3 (5th Cir. 2009) (considering
Section 1983 claim alleging violation of Medicaid’s reasonable
promptness provision) (citing Wilder v. Va. Hosp. Ass’n, 496 U.S.
498, 524 (1990); other citation omitted).
Section 1396a(a)(8) of Title 42 U.S.C. provides that “[a]
State plan for medical assistance must . . . provide that all
individuals wishing to make application for medical assistance
under the plan shall have opportunity to do so, and that such
assistance shall be furnished with reasonable promptness to all
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eligible individuals.” 42 U.S.C. § 1396a(a)(8). The Medicaid Act
expressly states that “medical assistance” means “payment of part
or

all

of

the

cost

of

.

.

. care

and

services

.

.

.

for

individuals” who meet certain eligibility requirements. 42 U.S.C.
§ 1396d(a). “Consistent with this definition, the [Medicaid] Act
expressly refers to ‘medical assistance’ in financial terms.” Equal
Access for El Paso, Inc., 562 F.3d at 727 (citing 42 U.S.C. §
1396d(b) (referring to “amounts expended as medical assistance for
services”)). As a general rule, a statutory “definition which
declares what a term ‘means’ . . . excludes any meaning that is not
stated.” Colautti v. Franklin, 439 U.S. 379, 392 n. 10 (1979)). The
Second Circuit does not appear to have considered the issue, but
those circuit courts which have done so have determined that it is
“clear from the text of the Act itself” that “‘medical assistance’
under Medicaid means ‘payment’ for various medical services[,]” and
not “actual medical services.” Equal Access for El Paso, Inc., 562
F.3d at 727 (citing, inter alia, Oklahoma Ch. of the Am. Acad. of
Pediatrics (OKAAP) v. Fogarty, 472 F.3d 1208, 1214 (10th Cir.2007)
(rejecting the plaintiffs’ argument that the Reasonable Promptness
Provision “makes a state Medicaid program directly responsible for
ensuring that the medical services enumerated in the Medicaid Act
.

.

.

are

actually

provided

to

Medicaid

beneficiaries

in

a

reasonably prompt manner” and noting “agree[ment] with” the Seventh
Circuit’s decision in Bruggeman ex rel. Bruggeman v. Blagojevich,

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324

F.3d

906,

910

(7th

Cir.

2003),

that

“the

term

‘medical

assistance’ as employed in [the Reasonable Promptness Provision]
refers to financial assistance rather than to actual medical
services” (internal quotation marks omitted)); other citations
omitted).

In

Plaintiffs
success

light

have

of

the

of

not

this

precedent,

demonstrated

merits

with

a

regard

the

Court

substantial
to

their

finds

that

likelihood

claim

based

of
on

Medicaid’s reasonable promptness provision, much less the “clear
showing” of entitlement to relief that is required to obtain a
mandatory injunction.
II.

Second Claim for Relief: Due Process Violation Based on
Inadequate Notice
For their second claim for relief, Plaintiffs assert that

Defendant

has

beneficiaries

failed
receive

to

ensure

adequate

that

written

individual
notices

of

Medicaid
MLTC

plan

determinations refusing to authorize the level of care they require
and informing them of their right to challenge the MLTC plan’s
determination by requesting a fair hearing.
As the Second Circuit has observed, “Medicaid applicants and
recipients are entitled to fair hearing rights when a decision is
made by a state agency that adversely affects their right to
receive benefits.” Catanzano by Catanzano v. Dowling, 60 F.3d 113,
117 (2d Cir. 1995). In particular, the Medicaid statute, “requires
that the state plan must ‘provide for granting an opportunity for
a fair hearing before the State agency to any individual whose
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claim for medical assistance under the plan is denied or not acted
upon with reasonable promptness.’” Id. (quoting

42 U.S.C. §

1396a(a)(3)). The Medicaid regulations also “require that, whenever
the state agency takes action to terminate, suspend, or reduce
Medicaid eligibility or covered services, an applicant or recipient
receive a

fair

hearing

that

meets the due

process

standards

enunciated in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970).” Id. (citing 42 C.F.R. §§ 431.200 (setting
forth basis and scope of fair hearings), 431.205(d) (“The [state’s]
hearing system must meet the due process standards set forth in
Goldberg . . . , and any additional standards specified in this
subpart.”); see also 42 C.F.R. § 431.206 (specifying contents of
notice and to whom and when such notice is required).
“It is fundamental, however, that ‘the action inhibited by the
[due process clause] of the Fourteenth Amendment is only such
action as may fairly be said to be that of the States.’” Catanzano
by Catanzano, 60 F.3d at 117 (quoting Shelley v. Kraemer, 334 U.S.
1, 13 (1948)). Therefore, it is “only when the adverse actions are
implemented through state action[,]” that the due process fair
hearing rights required by the Medicaid statute and regulations are
triggered. Id.
Plaintiffs here allege that they are entitled to notice and
fair hearing rights with regard to the MLTC plans’ decisions
regarding the number of hours of per-day or per-week home care

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services that an MLTC plan has assessed the individual as requiring
and has offered to provide as part of a benefit package, should
that individual choose to enroll in the particular plan. However,
Plaintiffs have not attempted to demonstrate that these decisions
by the MLTC plans

“should be deemed ‘state actions’ that trigger

[their] fair hearing rights.” Catanzano by Catanzano, 60 F.3d at
117; see also id. at 117-18 (discussing state action requirement
and

applicable

standard).

Plaintiffs

thus

have

not

shown

a

substantial likelihood of success on the merits of their due
process claim.
III. Third, Fourth and Fifth Claims for Relief: The ADA and the
Rehabilitation Act
In their third and fourth claims for relief, Plaintiffs argue
that

Defendant’s

actions

and

omissions

violate

the

anti-

discrimination provisions of the ADA, 42 U.S.C. § 12132, and
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). In the
fifth claim for relief, Plaintiffs assert that Defendant has
violated the ADA and Section 504 and their respective implementing
regulations, 28 C.F.R. §§ 35.130(b)(3) and 41.51(b)(3)(i); and 45
C.F.R. § 84.4(b)(4) by utilizing methods of administration that
discriminate against individuals with disabilities. “Because the
applicable provisions of the ADA and the Rehabilitation Act are
‘co-extensive,’” M.R. v. Dreyfus, 697 F.3d 706, 733 (9th Cir. 2012)
(citation omitted), the Court discusses both claims together, with

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a focus on the ADA. See Pashby v. Delia, 709 F.3d 307, 321 (4th
Cir. 2013) (considering plaintiffs’ Title II and Section 504 claims
“together because these provisions impose the same integration
requirements”) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272
(2d Cir. 2003)).
“[T]he

ADA

and

its

attendant

regulations

clearly

define

unnecessary segregation as a form of illegal discrimination against
the disabled.” Helen L. v. DiDario, 46 F.3d 325, 333 (3d Cir.
1995). Plaintiffs here allege a violation of the “integration
regulation” or “integration mandate,” which provides that “[a]
public entity shall administer services, programs, and activities
in

the

most

integrated

setting

appropriate

to

the

needs

of

qualified individuals with disabilities,” 28 C.F.R. § 35.130(d);
see also U.S. Dep’t of Justice, Statement of Department of Justice
on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C. (2011),3 at 3
(“[A] public entity may violate the ADA’s integration mandate when
it: (1) directly or indirectly operates facilities and or/programs
that segregate individuals with disabilities; (2) finances the
segregation of individuals with disabilities in private facilities;
and/or (3) through its planning, service system design, funding
choices, or service implementation practices, promotes or relies

3

Available at https://www.ada.gov/olmstead/q&a_olmstead.htm (last
accessed July 21, 2016).

-18-

upon the segregation of individuals with disabilities in private
facilities or program. . . .”) (quoted in Day v. D.C., 894 F.
Supp.2d 1, 23 (D. D.C. 2012)).
In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), “the
Supreme Court interpreted the integration mandate to mean that the
‘unjustified

isolation’

of

disabled

individuals

in

institutionalized care facilities constitutes discrimination on the
basis of disability under the ADA.” Davis v. Shah, 821 F.3d 231,
262

(2d

Cir.

2016)

(quoting

Olmstead,

527

U.S.

at

597).

In

Olmstead, the sole dispute between the parties, and the only
question decided by the Supreme Court, was “where Georgia should
provide treatment, not whether it must provide it.” Rodriguez, 197
F.3d at 619 (citing Olmstead, 527 U.S. at 593-94

(detailing

Georgia’s provision of treatment to mentally disabled patients in
institutions); emphasis in original). The Supreme Court explained
it did “not in this opinion hold that the ADA imposes on the States
a ‘standard of care’ for whatever medical services they render, or
that the ADA requires States to ‘provide a certain level of
benefits to individuals with disabilities.’” 527 U.S. at 603 n. 14
(internal citation omitted). Rather, Olmstead held that “States
must adhere to the ADA’s nondiscrimination requirement with regard
to the services they in fact provide.” Id. In Olmstead, Georgia
already had numerous state programs that provided community-based
treatment the plaintiffs were qualified to receive. See Olmstead,

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527 U.S. at 593–94, 602-03. Nevertheless, Georgia contended, it was
justified

in

keeping

certain

mentally

disabled

individuals

institutionalized, due to the costs involved in caring for them in
the community. The Supreme Court rejected that argument and held
that the ADA’s integration mandate “require[s] placement of persons
with mental disabilities in community settings rather than in
institutions . . .

[1] when the State’s treatment professionals

have determined that community placement is appropriate, [2] the
transfer from institutional care to a less restrictive setting is
not opposed by the affected individual, and [3] the placement can
be reasonably accommodated, taking into account [a] the resources
available to the State and [b] the needs of others with mental
disabilities.” Olmstead, 527 U.S. at 587; see also id. at 607.4
Plaintiffs assert that they have demonstrated a substantial
likelihood of success on their integration mandate claim because
they are qualified individuals with disabilities currently confined
to

institutional

elements.

First,

settings,

and

Plaintiffs

they

assert

meet

the

three

that

their

Olmstead

doctors

and

“Defendant’s own conflict-free assessor, Maximus, have determined
that in-home services are appropriate for them.” Pl’s Mem. (Dkt
#19-4) at 23. Second, “neither [Mr. Scofero nor Ms. Logan] opposes
4

While Olmstead dealt specifically with individuals having mental
disabilities, courts apply the three-part Olmstead test applies regardless of the
type of disability. See, e.g., Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d
599, 610-11 (7th Cir. 2004) (applying Olmstead to case involving “medically
fragile” individual who needed round-the-clock one-on-one nursing care in order
to survive).

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community

placement.” Id.

Third,

Plaintiffs

argue,

“requiring

Defendant to ensure that Plaintiffs receive the very services he
contracts with MLTC plans to provide, and that the county-based
system is supposed to provide on an interim basis, cannot be
construed as an unreasonable request.” Id. The second Olmstead
factor is undisputed. Therefore, the Court turns to a consideration
of the first and third Olmstead elements.
Plaintiffs have devoted most of their efforts to establishing
the first Olmstead element—the appropriateness of community-based
care for each of them. Plaintiffs state, e.g., that the nurse
assessor from Maximus informed Mr. Scofero that he was a good
candidate for 24-hour care, and did a home visit indicating that he
could live safely in his house, if certain modifications were made.
See Declaration of Gene Angelidis (“Angelidis Decl.”) (Dkt #19-5)
¶ 12 (“The nurse [from Maximus] asked [Mr. Scofero] a lot of
questions and then told us that she thought Joe would be able to
get 24 hour care. Then . . . I went with her to [Mr. Scofero]’s
house. She indicated that with a few modifications [Mr. Scofero]
would be able to go home. . . .”); id. ¶ 13 (“Soon after [Mr.
Scofero] got a letter from Maximus saying that he did qualify for
the home care program and that he just needed to sign up with a
managed long term care plan.”). Defendant discounts the value of
these statements on the basis that they are vague and amount to
inadmissible hearsay. Plaintiffs also point to affidavits from

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their

physicians

recommending

that

they

receive

in-home

care

services. For instance, Thomas White, M.D., states that Ms. Logan
“can and should be cared for appropriately at home in her own
apartment, though her needs for personal care services may be
greater than before[,]” and that she is “likely to require roundthe-clock homecare services in order to return to her apartment
safely.”

Dkt #19-8 ¶¶ 10, 11.

According to Defendant, “no entity has determined that either
Mr. Scofero or Ms. Logan is appropriate for ‘24-hour in-home
care.’” Def’s Mem. at 11 (citing Willard Decl. ¶¶ 8, 83). Defendant
asserts that Maximus, which performs the functions of the Conflict
Free Evaluation and Enrollment Center (“CFEEC”), evaluates only
whether a potential MLTC enrollee needs more than 120 days of
community-based long term care services; it does not evaluate or
assess whether the potential enrollee meets another requirement,
namely, that he or she be capable, at the time of enrollment, of
returning to his or her own home and community without jeopardy to
his or her health and safety. See Def’s Mem. (Dkt #21) at 12.
Defendant argues that although a physician must issue an order
describing the Medicaid recipient’s medical condition and need for
assistance

with

personal

care

tasks,

the

physician

must

not

recommend the number of hours of services the recipient should
receive. See Def’s Mem. (Dkt #21) at 16 (citing 18 N.Y.C.R.R. §
505.14(b)(3)(i)(a)(3)

(stating

that

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physicians

recommending

personal care services “must not recommend the number of hours that
the patient should be authorized to receive”); Kuppersmith v.
Dowling, 93 N.Y.2d 90, 93, 99-100 (1999) (finding regulation
prohibiting physicians from recommending the number of hours of
home

care

not

arbitrary

and

capricious;

declining

to

create

judicial presumption in favor of treating physician’s estimate
regarding

number

of

hours

of

home

care

services

required)).

However, Defendant’s own representative, Willard, states in her
declaration that these “regulations are obsolete and will be
repealed and replaced as of July 6, 2016[,]” Willard Decl. ¶ 74, by
new regulations that “would require the provision of services to
Medicaid recipients who are in ‘immediate need’ of personal care
services or consumer directed personal assistance, including those
who are excluded from MLTC or pending enrollment in MLTC.”Id. ¶ 72.
Thus,

Defendant’s

statements

is

apparently

are

argument

based,
no

at

longer

regarding

least

in

valid.

Plaintiffs’

part,
The

physicians’

on

regulations

that

Court

accordingly

will

disregard that aspect of Defendant’s argument based on Kuppersmith.
Nevertheless, even accepting at face value their physicians’
statements that Plaintiffs are “appropriate” for in-home care, and
that they have demonstrated a substantial likelihood of success on
the “appropriateness” element of Olmstead, the Court cannot find
that injunctive relief can be granted. As noted above, though the
second Olmstead element is undisputed,

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Plaintiffs have not attempted to make an affirmative showing
regarding the third Olmstead element, i.e., whether the provision
of community-based services can be reasonably accommodated, taking
into account the resources available to the State and the needs of
other disabled individuals. Plaintiffs simply assert it “cannot be
construed as an unreasonable request” to demand that Defendant
“ensure that Plaintiffs receive the very services he contracts with
MLTC plans to provide, and that the county-based system is supposed
to provide on an interim basis[.]” Pl’s Mem. (Dkt #19-4) at 23.
This

is

insufficient

to

carry

Plaintiffs’

high

burden

of

persuasion. See Peter B. v. Sanford, No. CIV.A. 6:10-767-JMC, 2010
WL 5912259, at *6 (D. S.C. Nov. 24, 2010) (the plaintiffs have put
forward evidence that in all material respects it is less costly to
provide the community-based, in-home services than institutional
ones.”) (citations to record omitted), rep. and rec. adopted, No.
6:10-CV-00767-JMC, 2011 WL 824584 (D. S.C. Mar. 7, 2011). Moreover,
in Defendant’s opposition, he has set forth factual allegations
suggesting

that

the

provision

of

community-based

services

to

Plaintiffs may not be able to be reasonably accommodated, taking
into account the resources available to the State and the needs of
other disabled individuals. See Willard Decl. ¶¶

86-87.5

5

Willard avers that after this litigation commenced, her staff contacted
Wayne County DSS, which subsequently determined that Mr. Scofero would be
appropriate for personal care services. However, after being unable to secure
coverage from a home care services agency due to a shortage of aides, Wayne
County DSS chose to authorize coverage under the Consumer Directed Personal
Assistance Program as an alternative and offered approximately 38 hours per week

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Finally, the Court observes that there is no indication that
the DOH itself provides long term home care services; rather, it is
the MLTC plans and, in limited, interim circumstances, the local
Social Services districts. None of the MLTC plans or the local
Social Services districts are parties to this action but each of
them is arguably necessary for complete relief to be afforded to
these Plaintiffs. The absence from this litigation of the MLTC
plans and local Social Services districts provide an independent
and alternative reason to deny injunctive relief. See Inc. Vill. of
Atl. Beach v. Pebble Cove Homeowners’ Ass’n, 527 N.Y.S.2d 429, 430
(2d Dep’t 1988) (village sued homeowners’ association and moved for
injunctive

relief;

court

found

that

denial

of

motion

for

preliminary injunction was “required” based on village’s failure to
join the individual unit owners of the homeowners’ association, who
were “necessary parties in light of the nature of the relief
sought”). In particular, with regard to the MLTC plans, Plaintiffs
have not established that they and the State “are . . . united in
interest and . . . stand or fall together. . . .” Mt. Pleasant
Cottage Sch. Union Free Sch. Dist. v. Sobol, 558 N.Y.S.2d 713, 714
(2d Dep’t 1990), aff’d, 78 N.Y.2d 935 (1991) (finding that court
did not abuse discretion in dismissing case for non-joinder of
school principal; while respondent, as chief of executive officer

of this type of assistance. However, Mr. Scofero declined this type of
assistance, and Wayne County DSS issued him a notice of denial dated May 3, 2016,
with fair hearing rights to review the denial. See Willard Decl. ¶¶ 86-87.

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of state education system had authority over petitioner, the school
district, he did not have corresponding authority over school
principal, a private citizen) (citation omitted).
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

Motion

for

a

Preliminary Injunction (Dkt #19) is denied in its entirety without
prejudice.
SO ORDERED
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 25, 2016
Rochester, New York

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