Scofero v. VNA Homecare Options, LLC et al

Filing 25

DECISION AND ORDER denying without prejudice 3 Plaintiff's Motion for Preliminary Injunction. Signed by Hon. Michael A. Telesca on 7/21/17. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSEPH SCOFERO,
Plaintiff,
DECISION AND ORDER
No. 6:17-cv-06391(MAT)

-vsVNA HOMECARE OPTIONS, LLC; SAMUEL
D. ROBERTS, in his official
capacity as Commissioner of the New
York State Office of Temporary and
Disability Assistance; and HOWARD
ZUCKER, in his official capacity as
Commissioner of the New York State
Department of Health,
Defendants.

INTRODUCTION
Represented

by

counsel,

Joseph

Scofero

(“Plaintiff”)

instituted this action pursuant to the Due Process clause of the
Fourteenth Amendment to the U.S. Constitution, Title XIX of the
Social Security Act (42 U.S.C. §§ 1396-1396w-5 (“the Medicaid
Act”)), and Article 2 of the New York Social Services Law, to
enforce

a

Medicaid

“fair

hearing”

decision

that

ordered

VNA

Homecare Options LLC. (“VNA”) to enroll Plaintiff in its Community
Based Managed Long Term Care Program and authorize 24-hour care at
discharge. The Court has jurisdiction over this matter pursuant to,
inter alia, 28 U.S.C. § 1331.

-1-

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.

The Parties
Plaintiff is a 70-year-old Medicaid beneficiary. As the result

of suffering a stroke in January 2015, Plaintiff is paralyzed on
the left side of his body and is unable to walk on his own. He
currently resides at Brighton Manor, a skilled nursing facility
located in Monroe County, New York, where he receives 24-hour
medical care. Plaintiff owns a house in Wayne County, New York, and
wishes to return home. The parties all agree that if Plaintiff were
to return home, he requires 24-hour care.
Howard Zucker is Commissioner of the New York State Department
of Health (“DOH”) and is charged with administering the New York
State Medicaid program consistent with the federal Medicaid Act.
Samuel D. Roberts is the Commissioner of the New York State Office
of Temporary and Disability Assistance (“OTDA”) and is responsible
for the administration of, inter alia, Medicaid fair hearings and
ensuring compliance with fair hearing decisions.
VNA operates a Medicaid Managed Long Term Care (“MLTC”) Plan
under a Certificate of Authority from DOH. As an MLTC Plan, VNA
arranges for, inter alia, long term care services, on a capitated
basis in accordance with New York Public Health Law (“NYPHL”) §
4403-f, for non-dual eligible individuals, aged 18 years and older,
who have been assessed as eligible for nursing home level of care
at the time of enrollment and also assessed as needing community
-2-

based long term care services for more than 120 days.1 As a DOH
contractor, VNA is required to, among other things, maintain and
demonstrate

to

DOH’s

satisfaction,

a

sufficient

and

adequate

network for the delivery of all covered services. VNA provides care
management services to its enrollees, but does not directly provide
hands-on care to such enrollees. Rather, the MLTC Plan arranges,
through a network of contracted providers, for the provision of
covered services. Pursuant to the MLTC Model Contract, VNA is
required to have a minimum of two providers that are accepting new
Plan enrollees in each county in its service area for each covered
service in the benefit package.2
II.

Plaintiff’s Pursuit of 24-Hour In-Home Care
On April 12, 2016, Plaintiff was assessed by Lori McPhee

(“McPhee”), an enrollment nurse with VNA, who noted that Plaintiff
used a wheelchair due to left side flaccid hemiplegia, and was
unable

to

lift

his

left

arm

independently.

McPhee

evaluated

Plaintiff’s status in various domains of functioning and opined
that he required maximal assistance in managing his medications,
dressing his lower body, transferring to the toilet, using the
1

VNA’s obligations as an MLTC Plan are set forth in its contract
with the DOH. The template of the Managed Long Term Care Partial Capitation
Contract (“MLTC Model Contract”) may be accessed at
https://www.health.ny.gov/health_
care/medicaid/redesign/docs/mrt90_partial_capitation_model.pdf.
2

In Wayne County, where Plaintiff’s home is located, VNA maintains a network
of service providers that includes Lifetime Care, HomeCare PLUS, Visiting Nurse
Service of Rochester, Finger Lakes Visiting Nurse Service, and HCR Home Care.

-3-

toilet, and getting in and out of bed; and extensive assistance in
bathing and dressing his upper body.
By letter dated April 14, 2016, VNA informed Plaintiff that he
had been “found to be ineligible” for enrollment in the MLTC Plan
because he was “incapable of returning to or remaining in [his]
home and community without jeopardy to [his] health or safety.” On
May 27, 2016, VNA sent Plaintiff a second letter (Dkt #10-1, pp.
28-29 of 30) indicating that New York Medicaid Choice (“Maximus”),
DOH’s conflict-free evaluator, had been notified of the MLTC Plan’s
determination and would make the final determination on enrollment.
On June 15, 2016, Maximus informed Plaintiff by letter that it
was affirming VNA’s decision to deny his enrollment in the MLTC
Plan because “[t]he plan showed proof that they cannot ensure [his]
physical safety while providing services.”
III. The Medicaid Fair Hearing
On August 10, 2016, Plaintiff requested a Medicaid fair
hearing to challenge the denial of enrollment by VNA, and Maximus’
affirmance of that denial. Following a hearing on December 23,
2016, an administrative law judge (“the ALJ”) issued a decision on
January 18, 2017 (“the Fair Hearing Decision”) (Dkt #10-1, pp. 1223

of

30),

reversing

VNA’s

determination

to

deny

Plaintiff

enrollment in the MLTC Plan.
On February 1, 2017, Plaintiff’s attorney representative at
the fair hearing filed a Request for Compliance with OTDA. By

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letter dated February 14, 2017, OTDA notified Plaintiff that “the
Agency [VNA] has taken appropriate action to comply with the
directives of [the Fair Hearing Decision][,]” and OTDA therefore
“will regard this matter as satisfactorily resolved . . . .” (Dkt
#3-7, p. 30 of 34).
Meanwhile, VNA filed a Request for Reconsideration (Dkt #10-1,
pp. 1-11 of 30) with OTDA on February 7, 2017, seeking reversal of
the Fair Hearing Decision on the grounds that the ALJ erred as a
matter of law in her interpretation of the regulatory notice
requirements and application of the regulatory burden of proof. VNA
also argues that the ALJ made a medical determination she was
unqualified to make regarding Plaintiff’s enrollment in the Plan.
On July 17, 2017, OTDA sent a letter to Plaintiff’s attorney
representative at the fair hearing, Ross Pattisson, Esq., advising
him of VNA’s Request for Reconsideration and stating that if he
wishes to respond on Plaintiff’s behalf, he must do so by August 1,
2017. The letter notes that “the original decision remains in
effect.”3
On February 9, 2017, VNA pre-enrolled Plaintiff in the MLTC
Plan effective March 1, 2017, and authorized 24-hour in-home care.
On April 3, 2017, a VNA representative contacted nine different
home-care

service

providers;

on

April

12,

2017,

a

VNA

3

“During the pendency of any review of an issued fair hearing decision, the
original decision is binding and must be complied with by the agency.” N.Y. COMP.
CODES R. & REGS. tit. 18, § 358-6.6(a)(4).

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representative contacted a tenth provider; and on June 23, 2017, a
VNA representative re-contacted six of the foregoing ten service
providers, as well as three new providers. (See Dkt #11, pp. 3-4 of
6). All of these agencies declined to provide services. On June 26
and 27,

2017,

a

VNA

representative

re-contacted

five

of

the

previously contacted providers that provide services in Wayne
County. However, VNA indicates, none of these agencies would accept
Plaintiff because they do not have enough staff to provide 24-hour
care, and Plaintiff lacks an emergency back-up plan in the event an
agency employee does not appear for a scheduled shift.
VNA

avers

that

it

also

explored

providing

services

to

Plaintiff under the Consumer Directed Personal Assistance Services
Benefit, which provides greater flexibility in areas with shortages
of home-health aides. In order to have a Consumer Directed Aide
(“CDA”), the MLTC Model Contract imposes a number of requirements
on the plan enrollee seeking in-home care. Specifically, the
patient must be determined to be self-directing and have the
authority to make decisions regarding the recruitment, training,
scheduling, evaluation, time sheet verification and approval, and
discharge of the CDA. In other words, the enrollee must be able to
act as the employer of the CDA. If the enrollee does not have such
capacity, he may designate a representative to assist with these
responsibilities.

VNA

requested

a

consultative

psychiatry

examination to assess whether Plaintiff has the capacity to conduct

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the employer responsibilities relative to the CDA. VNA also reached
out to four individuals identified by Plaintiff who might be able
to assist him. Three of the four contacts stated that they could
not assist Plaintiff with these CDA employer functions, and the
fourth person did not respond to VNA’s multiple inquiries.
As of June 27, 2017, VNA indicated that it was canvassing
providers outside of its contracted provider network to determine
if there is a different agency operating in Wayne County that might
accept Plaintiff into service. To date, VNA has been unable to
secure an agency willing and able to provide the 24-hour care that
Plaintiff requires. Plaintiff remains a patient at Brighton Manor.
IV.

The Preliminary Injunction Motion
Presently before the Court is Plaintiff’s motion seeking a

mandatory preliminary injunction that “1. [e]njoins Defendant VNA
from failing to comply with the fair hearing decision issued
January 18, 2017; 2. [e]njoins State Defendants Roberts and Zucker
from failing to ensure compliance with the fair hearing decision
issued January 18, 2017; and 3. [e]njoins State Defendants Roberts
and Zucker from failing to ensure that Defendant VNA timely comply
with the fair hearing decision issued January 18, 2017, by ensuring
that Defendant provide the services ordered in it.” (Pl’s

Mem.

(Dkt #3-2) at 24). VNA opposed the motion with several declarations
and a memorandum of law. Plaintiff filed a reply. DOH and OTDA have
not responded to the motion for a preliminary injunction.

-7-

For the reasons discussed herein, the Court denies without
prejudice

Plaintiff’s

motion

for

a

mandatory

preliminary

injunction.
DISCUSSION
I.

Standard for Obtaining a Mandatory Preliminary Injunction
The Second Circuit has explained that “[a] party seeking a

preliminary injunction must show ‘(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.’” Cacchillo v. Insmed,
Inc., 638 F.3d 401, 405–06 (2d Cir. 2011) (quoting Citigroup Global
Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d
30, 35 (2d Cir. 2010) (“Citigroup”)). As the Second Circuit has
emphasized, “[i]rreparable harm

is ‘“the single most important

prerequisite for the issuance of a preliminary injunction.”’”
Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233–34 (2d
Cir. 1999) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co.,
719 F.2d 42, 45 (2d Cir. 1983) (quoting 11 Charles Alan Wright, et
al., Federal Practice & Procedure § 2948 at 431 (1st ed. 1973))).
In this Circuit, a party seeking preliminary injunctive relief must
show a likelihood of irreparable injury, not a possibility of
irreparable injury. E.g., Jackson Dairy, Inc. v. H. P. Hood & Sons,
Inc., 596 F.2d 70, 72 (2d Cir. 1979). “Likelihood sets, of course,

-8-

a higher standard than ‘possibility.’” JSG Trading Corp. v. TrayWrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990).
Where,

as

here,

the

moving

party

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[,]” Citigroup, 598 F.3d at 35 n. 4
(internal quotation marks and brackets omitted), “[t]he burden is
even higher[.]” Cacchillo, 638 F.3d at 401 (citation omitted).4 The
Second Circuit explained that “if a preliminary injunction will
make it difficult or impossible to render a meaningful remedy to a
defendant who prevails on the merits at trial, then the plaintiff
should have to meet the higher standard of substantial, or clear
showing of, likelihood of success to obtain preliminary relief.
Otherwise,

there

is

no

reason

to

impose

a

higher

standard.”

Doherty, 60 F.3d at 34 (citation omitted). Thus, the Second Circuit
has emphasized that “[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.’” Cacchillo, 638
F.3d at 401 (quoting Citigroup, 598 F.3d at 35 n. 4 (internal

4

See also Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34
(2d Cir. 1995) (“Doherty”) (“A heightened standard has also been applied where
an injunction—whether or not mandatory—will provide the movant with substantially
‘all the relief that is sought.’”) (quoting Abdul Wali v. Coughlin, 754 F.2d at
1026; citing 11 Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 2948, at 445–47 (1973)).

-9-

quotation marks omitted in original; emphases added)). Because
Plaintiff seeks a mandatory preliminary injunction, the Court will
address the two factors necessary for him to meet the higher burden
required in such a case: (1) a “clear showing” of entitlement to
relief; or (2) that “extreme or very serious damage” will result if
this Court denies injunctive relief. See Cacchillo, 638 F.3d at
401.
A.

Clear Showing of Entitlement to Relief Requested

The first claim in Plaintiff’s complaint asserts that his
rights under the Due Process Clause of the 14th Amendment have been
violated by

VNA’s

“failure

to

comply”

with

the

Fair

Hearing

Decision. The “Decision and Order” portion of the Fair Hearing
Decision states as follows:
The determination to deny [Plaintiff]’s request for
enrollment in [VNA]’s Community Based Long Term Care
Program is not correct, and is reversed.
1. [VNA] is directed [to] enroll [Plaintiff] in its
Community Based Managed Long Term Care Program and
authorize 24 hour care at discharge.
As required by 18 NYCRR 358-6.4,5 [VNA] must comply
immediately with the directives set forth above.
(Dkt #10-1, p. 22 of 30) (emphases supplied).
As discussed above, on February 9, 2017, VNA pre-enrolled
Plaintiff in the MLTC Plan and authorized 24-hour in-home care.
5

“For all decisions, except those involving food stamp issues only,
definitive and final administrative action must be taken promptly, but in no
event more than 90 days from the date of the request for a fair hearing.” N.Y.
COMP. CODES R. & REGS. tit. 18, § 358-6.4

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Plaintiff’s enrollment was scheduled to be effective March 1, 2017.
Plaintiff does not dispute that VNA enrolled him in the MLTC Plan
and authorized 24-hour care upon his discharge from Brighton Manor,
but argues that this does not constitute compliance with the Fair
Hearing Decision. According to Plaintiff, VNA has not done enough
to secure a service provider to provide him with 24-hour in-home
care. Plaintiff asserts that there is “far more” VNA should have
done, such as offer financial incentives to the homecare agencies
or contract with multiple agencies in order to obtain 24-hour
coverage. However, Plaintiff has not pointed to any regulations
that impose such requirements on agencies such as VNA.
Plaintiff

also

cites

42

C.F.R.

§

438.206(c)(1)(iii),

a

Medicaid regulation dealing with the furnishing of services, which
provides that “[t]he State must ensure that each contract with a
MCO [Managed care organization], PIHP [Prepaid inpatient health
plan], and PAHP [Prepaid ambulatory health plan] complies with [a
number of] requirements[,]” including that “[e]ach MCO, PIHP, and
PAHP must[,]” among other things, “[m]ake services included in the
contract available 24 hours a day, 7 days a week, when medically
necessary.” 42 C.F.R. § 438.206(c)(1)(iii).

Plaintiff points out

that “[i]f the provider network is unable to provide necessary
services, covered under the contract, to a particular enrollee, the
MCO, PIHP, or PAHP must adequately and timely cover these services
out of network for the enrollee, for as long as the MCO, PIHP, or

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PAHP’s provider network is unable to provide them.” 42 C.F.R. §
438.206(b)(4). Plaintiff asserts that VNA has “provide[d] no clear
evidence” that it has sought services outside its network.
However, a VNA representative has averred, in a declaration
dated June 27, 2017, that VNA is in the process of canvassing
providers outside of its contracted provider network to determine
if there is a different agency operating in Wayne County that might
accept

Plaintiff

into

service.

(See

Declaration

of

Deborah

Maciewicz (Dkt #11), ¶ 22). Thus, it appears to the Court that VNA
is complying with its obligations under the applicable Medicaid
regulation but, regrettably, has been unsuccessful to date in
securing out-of-network provider coverage.
Plaintiff next cites a provision in the MLTC Model Contract
that covers the situation when “the Contractor [VNA] determines
that it lacks access to sufficient or adequate resources to provide
or arrange for the safe and effective delivery of Covered Services
to additional Enrollees.” In such case, “[t]he Contractor will
request

written

permission

from

the

Department

to

suspend

enrollment[,]” and “[r]esumption of enrollment will occur only with
Department approval, not to be unreasonably delayed, after written
notice from the Contractor that adequately describes how the
situation precipitating the suspension was corrected.” VNA may
eventually

determine

it

is

in

the

position

covered

by

this

provision, and must request suspension of enrollment into its

-12-

plans. However, even if that is the case, the MLTC Model Contract
does not provide for the equitable remedy sought by Plaintiff.
Indeed, if VNA is in the situation of having to request suspension
of enrollment, it is precisely because it cannot arrange for
delivery of covered services, i.e., 24-hour in-home care.
Plaintiff’s second cause of action is based on the “fair
hearing” provision of the Medicaid statute which requires 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). The remedy for a violation of this subsection
would appear to be a “fair hearing.” Here, Plaintiff received a
Fair Hearing before an administrative law judge, and obtained a
favorable decision. This claim arguably is moot.
Plaintiff’s third cause of action is based on Medicaid’s
“reasonable promptness” provision, 42 U.S.C. § 1396a(a)(8), which
requires State Medicaid plans to “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 eligible individuals.
42 U.S.C. § 1396a(a)(8). Plaintiff notes that the Medicaid Act
defines “medical assistance” as “payment of part or all of the cost
of . . . care and services or the care and services themselves, or

-13-

both.” 42 U.S.C. § 1396d(a). Plaintiff asserts that this creates a
federally enforceable private right of action, the remedy for which
is the provision, by VNA, of the 24-hour in-home services he needs.
Plaintiff acknowledges that the Second Circuit has not addressed
the question of whether 42 U.S.C. § 1396a(a)(8) creates privately
enforceable rights. The fact that it is an open question in this
Circuit undermines any claim that he has made a “clear showing” of
entitlement to relief based on an alleged violation of Section
1396a(a)(8). Moreover, even if the Second Circuit were to follow
the majority of circuits that have found or assumed a privately
enforceable right under Section 1396a(a)(8), it is unclear what
constitutes compliance with, or a violation of, the reasonable
promptness provision, since the “Medicaid Act does not define a
specific time limit for ‘reasonable promptness’ for furnishing
medical assistance.” Hanley v. Zucker, No. 15-CV-5958(KBF), 2016 WL
3963126, at *3 (S.D.N.Y. July 21, 2016) (citing 2001 guidance
letter issued by the Centers for Medicare and Medicaid Services in
the U.S. Department of Health and Human Services which states that
Section

1396a(a)(8)’s

“reasonable

promptness”

requirement

is

ultimately “governed by a test of reasonableness,” taking into
consideration the “urgency of an individual’s need, the health and
welfare

concerns

of

the

individual,

the

nature

of

services

required, the potential need to increase the supply of providers,
the availability of similar or alternative services, and similar

-14-

variables”). There are a number of factors, outside of VNA’s
control, that have contributed to delay, including the extensive
nature of Plaintiff’s medical and personal care needs; the fact
that he requires round-the-clock, in-home care services; the need
for VNA to look outside of its network of care providers due to the
refusal of in-network agencies to assume Plaintiff’s case; and the
unwillingness of Plaintiff to allow VNA to have contact with any of
his family members for purposes of exploring the consumer-directed
care option. The home care agencies—not VNA—are the ultimate
providers of the “medical assistance” which Plaintiff asserts he
has not received with “reasonable promptness.” However, the home
care agencies are not parties to this action, and the Court has no
jurisdiction over them.
At this stage of the proceeding, Plaintiff has failed to make
a “clear showing,” Cacchillo, 638 F.3d at 401, that he is entitled
to the relief requested.
B.

Extreme or Very Serious Damage Absent Injunction

The Court now considers whether Plaintiff can

demonstrate

that “extreme or very serious damage,” Cacchillo, 638 F.3d at 401,
will result to him if the mandatory injunctive relief is not
issued. Plaintiff cannot demonstrate a likelihood of irreparable
harm.

He

therefore

necessarily

cannot

fulfill

the

heightened

showing required in the context of mandatory injunctions, that is,
“extreme or very serious damage” in the absence of relief.

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The “irreparable harm” cases on which Plaintiff relies in his
initial memorandum of law largely deal with situations where the
movants face “[a] lack of medical services[,]” Fishman v. Paolucci,
628 F. App’x 797, 800 (2d Cir. 2015) (summary order), which the
Second

Circuit

has

characterized

as

“exactly

the

sort

of

irreparable harm that preliminary injunctions are designed to
address.”

Id.

at

800-01

(Medicaid

recipients

would

suffer

irreparable harm in the absence of an injunction enjoining state
officials from terminating, without notice, benefits for failure to
appear at a hearing; recipients’ very survival was threatened by
denial of medical assistance benefits); see also Caldwell v. Blum,
621 F.2d 491, 493 (2d Cir. 1980) (plaintiffs, who were aged, blind
or

disabled

New

York

residents,

proved

sufficient

threat

of

irreparable harm to entitle them to relief against enforcement of
the New York transfer-of-assets prohibition; “[t]hose medically
needy applicants who [had] already transferred their assets and are
being denied Medicaid benefits can hardly be expected to recover
those assets for use in payment of medical bills; in the meantime
they would, absent relief, be exposed to the hardship of being
denied essential medical benefits”); Olson v. Wing, 281 F. Supp.2d
476, 486-87 (E.D.N.Y.) (Disaster Relief Medicaid recipients would
be irreparably harmed in absence of preliminary injunction against
state and city agencies requiring aid continuing until fair hearing
decision

was

issued

for

those

terminated;

-16-

recipients

denied

benefits and consequently unable to obtain medical services during
pendency of fair hearing could suffer irreparable harm based on
inability

to

obtain

potentially

life-saving

treatment

or

medications during that period), aff’d, 66 F. App’x 275 (2d Cir.
2003). Here, Plaintiff is not being denied comprehensive medical
services. Plaintiff, moreover, does not dispute that the present
level of medical care he is receiving is appropriate.
The

other

cases

cited

by

Plaintiff

in

support

of

his

irreparable harm argument involved the provision of in-home medical
care services and to that extent, share some factual similarities
to his case. See, e.g., Haddad v. Arnold, 784 F. Supp.2d 1284,
1307-08 (M.D. Fla. 2010) (“The requirement that Plaintiff first
enter a nursing home in order to be transitioned out sometime
thereafter presents Plaintiff with exactly the kind of uncertain,
indefinite institutionalization that can constitute irreparable
harm.”) (citing Long v. Benson, No. 4:08CV26-RH/WCS, 2008 WL
4571903, at *2 (N.D. Fla. Oct. 14, 2008) (“If a preliminary
injunction is not issued, Mr. Griffin will run out of money and
will have to move back into the nursing home. This will inflict an
enormous psychological blow. Also, because of the very substantial
difference in Mr. Griffin’s perceived quality of life in the
apartment as compared to the nursing home, each day he is required
to live in the nursing home will be an irreparable harm. And if Mr.
Griffin gives up his apartment, which is in an accessible and

-17-

subsidized complex for persons with disabilities, he may not get it
back, even if he ultimately prevails in this litigation. In short,
if a preliminary injunction is not issued, Mr. Griffin will suffer
irreparable injury.”), aff’d, 383 F. App’x 930 (11th Cir. 2010);
Marlo M. ex rel. Parris v. Cansler, 679 F. Supp.2d 635, 638 (E.D.
N.C. 2010) (“Plaintiffs have also clearly demonstrated they will
suffer irreparable harm. Plaintiffs, who have a variety of mental
illnesses and developmental disabilities, have lived successfully
in

their

community

based

apartments.

In

the

absence

of

an

injunction, both Plaintiffs will lose funding and be forced from
these community settings. The evidence at this point is strong that
Plaintiffs will suffer regressive consequences if moved, even
temporarily.”); other citations omitted).
However, there is a critical difference between the foregoing
cases cited by Plaintiff and the instant case: The plaintiffs in
those cases faced the potential of being removed from their homes
and institutionalized,

absent

injunctive

relief

mandating the

continued provision of in-home care services. In other words, each
of the movants presented a history of successfully living at home,
albeit with varying levels of in-home assistance. Here, Plaintiff
unfortunately has not returned home since suffering his stroke; he
has either

been

hospitalized

or

living

in a

skilled

nursing

facility because of his functional limitations. In the cases cited
by Plaintiff, it was essentially undisputed that the movants could

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safely reside in their homes, provided that they continued to
receive the funding for the in-home care services they had been
receiving. Here, it remains to be seen whether Plaintiff, given his
current functional limitations, can safely reside in his home even
with

assistance.

maintenance

of

In
the

short,
status

the
quo;

cases

cited

Plaintiff’s

above
case

involved
demands

a

significant alteration of the status quo.
Plaintiff accuses VNA of “misrepresenting the harm it has
undisputedly caused [him],” (Pl’s Reply at 2 [#24]), namely, that
he “remains confined in the nursing home because VNA has failed to
provide him with the 24-hour in-home care services ordered in the
[fair hearing] decision.” (Id.). Plaintiff concedes that he has not
raised a claim under the Americans with Disabilities Act of 1990
(“ADA”), 104 Stat. 337, 42 U.S.C. § 121, but argues that he has a
right under the ADA “to live in the most integrated setting
appropriate

to

his

needs

and

[to]

not

suffer

unnecessary

institutionalization.” (Id.) (citation omitted). The irreparable
harm

VNA

is

causing,

institutionalization

and

Plaintiff
its

argues,

attendant

is

effects

his
on

unnecessary
his

mental

health. Plaintiff avers that he has “depression and this process
with its constant ups and downs has been very hard on [him]. . . .
Every day [his] depression gets a little worse.” (Declaration of
Joseph Scofero (“Scofero Decl.”) (Dkt #3-4), ¶¶ 26-27); see also
Declaration of Gene Angelidis (“Angelidis Decl.”) (Dkt #3-5), ¶ 38

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(stating that he is Plaintiff’s friend and that Plaintiff “seems to
be more and more frustrated and depressed the longer he is confined
to the nursing home”). However, in her declaration submitted in
support of Plaintiff’s motion, Robin Langmaid, FNP-PC (“Langmaid”),
the Primary Care Family Nurse Practitioner at Brighton Manor,
addresses only Plaintiff’s “significant” physical limitations. She
explains that Plaintiff “requires assistance with ambulation and
currently uses a wheelchair. During therapy sessions, he is able to
walk with a hemi walker[;] however he requires maximal assistance
to do so. He also requires partial assistance with transfers,
ambulation,

and

toileting.

He

also

requires

assistance

with

dressing, grooming, and other activities of daily living. He
requires assistance with virtually all activities of daily living.”
(Langmaid

Decl.,

¶

8).

Plaintiff

does

not

dispute

this

characterization of his functional limitations and level of care
that he requires.
Notably, Langmaid does not mention Plaintiff’s depression or
any other psychological issues or symptoms. (See Declaration of
Robin Langmaid (“Langmaid Decl.”) (Dkt #3-6), ¶¶ 5-10). In the only
paragraph that possibly could encompass Plaintiff’s general mental
status, Langmaid states that Plaintiff “has been in a stable
plateau in the last two years that [she] ha[s] seen him. There has
[sic] not been any significant changes.” (Id.,

¶ 10). That the

only medical provider who submitted a supporting declaration has

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opined that Plaintiff is “stable” undermines his ability to show a
likelihood of irreparable harm to his mental status based on his
continued stay at the nursing home. Even assuming that Plaintiff’s
evidentiary submissions are sufficient to demonstrate a likelihood
of irreparable harm, they do not approach a showing that “extreme
or very serious damage” to his mental health will result if this
Court denies his motion.
C.

Summary

The Court wishes to emphasize that its decision today does not
shut the door on Plaintiff’s quest to return home. VNA may not
abandon its

search

for

a

home-care

solution

that

will

allow

Plaintiff to transition out of the nursing home. The Fair Hearing
Decision remains in effect, and VNA is bound to abide by it. It is
apparent, however, that enabling Plaintiff to live at home safely
will

require

a

creative

solution.

Moreover,

it

will

demand

flexibility and cooperation on the part of everyone involved,
including Plaintiff. Plaintiff must understand that his direction
to VNA not to contact any of his family members was unproductive.
Going forward, the Court strongly encourages all of the parties and
their representatives to work collaboratively towards finding a
workable solution.
CONCLUSION
For the reasons discussed above, on the present record,
Plaintiff cannot demonstrate (1) a “clear showing” of entitlement

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to relief; or that (2) “extreme or very serious damage” will result
if this Court denies mandatory injunctive relief. Cacchillo, 638
F.3d at 401. Accordingly, Plaintiff’s Motion for a Preliminary
Mandatory Injunction is denied without prejudice.
SO ORDERED.
S/ Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 21, 2017
Rochester, New York

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