BRIEF OF PLAINTIFF-APPELLEE

Transcription

1 Case: Document: 58 Page: 1 11/18/ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BORIS SHAKHNES, by his next friend Alla Shakhnes, individually and on behalf of all others similarly situated, by his next friend Mikhail Feldman, individually and on behalf of all others similarly situated, by his next friend Fei Mock, individually and on behalf of all, by his next friend Sha-Sha Willis, individually and on behalf of all others similarly situated, by his friend Chaio Zhang, individually and on behalf of all others similarly situated, v. Plaintiff - Appellee, ELIZABETH R. BERLIN, Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, NIRAV R. SHAH, as Commissioner of the New York State Department of Health, Defendants - Appellants. VERNA EGGLESTON, Commissioner, New York City Human Resources Administration, Defendant. On Appeal from the United States District Court for the Southern District of New York BRIEF OF PLAINTIFF-APPELLEE SNR DENTON LLP 1221 Avenue of the Americas New York, New York (212) NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square, 18th Fl. New York, NY Tel.: (212) ATTORNEYS FOR PLAINTIFF-APPELLEE

2 Case: Document: 58 Page: 2 11/18/ TABLE OF CONTENTS Page PRELIMINARY STATEMENT...1 COUNTERSTATEMENT OF ISSUES PRESENTED...4 COUNTERSTATEMENT OF THE CASE...5 I. The Plaintiff Class...5 II. New York s Medicaid Fair Hearing System...6 A. Statutory and Regulatory Scheme...6 B. New York s Fair Hearing Practices For Medicaid Home Health Services...9 III. Proceedings Below...11 SUMMARY OF ARGUMENT...15 ARGUMENT...18 I. State Defendants Did Not Appeal The District Court s Determination That Plaintiffs Right To Enforce The Medicaid Act Includes Enforcement Of The Implementing Time-Limit Regulation...18 II. Plaintiffs Conceded Right To Enforce The Medicaid Act s Fair Hearing Requirement Includes The Right To Enforce The Temporal Component Fleshed Out In Its Implementing Regulation...19 A. Section 1396a(a)(3) Unquestionably Confers An Enforceable Right To A Fair Hearing Under B. The 90-Day Requirement For Final Administrative Action In 42 C.F.R (f)(1) Defines And Fleshes Out The Statutory Fair Hearing Right At 1396(a)(3)...21 III. The District Court Did Not Abuse Its Discretion In Enjoining State Defendants To Comply With Federal Law By Implementing Fair Hearing Decisions Within 90 Days...28 i

3 Case: Document: 58 Page: 3 11/18/ A. This Court Can Vacate The Injunction Only If The District Court Abused Its Discretion...29 B. Final Administrative Action Plainly Includes Both Issuing And Complying With Fair Hearing Decisions...30 C. State Defendants Challenge To The Meaning Of Final Administrative Action Contradicts Their Own Settled Interpretation And Position Below...42 D. The District Court Appropriately Enjoined State Defendants to Ensure Compliance With Federal Law...48 CONCLUSION...57 ii

4 Case: Document: 58 Page: 4 11/18/ TABLE OF AUTHORITIES CASES Page(s) Abrahams v. MTA Long Island Bus, 644 F.3d 110 (2d Cir. 2011)...24 Atkins v. Parker, 472 U.S. 115 (1985)...31 Atkins v. Rivera, 477 U.S. 154 (1986)...38 Bennett v. Spear, 520 U.S. 154 (1997)...40 Bogle-Assegai v. Conn., 470 F.3d 498 (2d. Cir. 2006)...46 Bryson v. Shumway, 308 F.3d 79 (1st Cir. 2002)...21 Carr v. Wilson-Coker, 203 F.R.D. 66 (D. Conn. 2001)...51 Catanzano v. Dowling, 60 F.3d 113 (2d Cir. 1995)...50 Catanzano v. Wing, 103 F.3d 223 (2d Cir. 1996)...21, 29, 51 Cisco v. Lavine, 341 N.Y.S. 2d 719 (N.Y. Sup. 1973)...35 Conn. Dep t of Income Maintenance v. Heckler, 471 U.S. 524 (1985)...38 Cutler v. Perales, 128 F.R.D. 39 (S.D.N.Y. 1989)...33, 34 D.D. v. New York City Bd. of Ed., 465 F.3d 503 (2d Cir. 2006)...passim iii

5 Case: Document: 58 Page: 5 11/18/ D.W. v. Walker, No. 09 Civ , 2009 WL (S.D. W. Va. May 15, 2009)...20 Doe v. Chiles, 136 F.3d 718 (11th Cir. 1998)...23, 27 Doe v. Kidd, 501 F.3d 348 (4th Cir. 2007)...21, 23 Fishman v. Daines, 743 F. Supp. 2d 127 (E.D.N.Y. 2010)...20, 23, 24 Florence Nightingale Nursing Home v. Blum, 570 F. Supp. 285 (S.D.N.Y. 1983)...53, 54 Gean v. Hattaway, 330 F.3d 758 (6th Cir. 2003)...20 Greene v. United States, 13 F.3d 577 (2d Cir. 1994)...47 Harris v. James, 127 F.3d 993 (11th Cir.1997)...24 Heckler v. Day, 467 U.S. 104 (1984)...27, 28 Hillburn v. Maher, 795 F.2d 252 (2d Cir. 1986)...52, 53 Johnson v. Smithsonian Inst., 189 F.3d 180 (2d Cir. 1999)...18, 19 Kerr v. Holsinger, No. Civ. A H, 2004 WL (E.D. Ky. Mar. 25, 2004)...20 Lambus v. Walsh, 448 F. Supp. 240 (W.D. Mo. 1978)...35, 36 M.K.B. v. Eggleston, 445 F. Supp. 2d 400 (S.D.N.Y. 2006)...21 iv

6 Case: Document: 58 Page: 6 11/18/ McCartney v. Cansler, 608 F. Supp. 2d 694 (E.D.N.C. 2009)...20 Menking v. Daines, 09 Civ (S.D.N.Y.)...13 Mikel v. Reser, 440 F. Supp (E.D. Mo. 1977)...35 Muller v. Holmes, 353 F. App x. 664 (2d Cir. 2009)...18, 19 Nelson v. Sugarman, 361 F. Supp (S.D.N.Y. 1972)...passim Rabin v. Wilson-Coker, 362 F.3d 190 (2d Cir. 2004)...21 RCJ Med. Servs., Inc. v. Bonta, 91 Cal. App. 4th 986 (Ct. App. 2d 2001)...38, 52, 53 Resnik v. Swartz, 303 F.3d 147 (2d Cir. 2002)...31 Reynolds v. Giuliani, 506 F.3d 183 (2d Cir. 2007)...55, 56, 57 Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004)...21 Sai Kwan Wong v. Doar, 571 F.3d 247 (2d Cir. 2009)...37 San Lazaro Assoc., Inc. v. Connell, 286 F.3d 1088 (9th Cir. 2002)...52 Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003)...24 Schwan-Stabilo Cosmetics GMBH v. PacificLink Int l, 401 F.3d 28 (2d Cir. 2005)...47 v

7 Case: Document: 58 Page: 7 11/18/ Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995)...18, 19 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)...37 Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005)...46 STATUTES 5 U.S.C U.S.C a...passim 1396c r passim N.Y. Pub. Health Law , , 49 N.Y. Soc. Serv. Law , , 10, 54, a , 11, 49, vi

8 Case: Document: 58 Page: 8 11/18/ REGULATIONS 42 C.F.R , , passim , , 11, , , Fed. Reg (May 8, 1970) Fed. Reg (Aug. 15, 1973)...34, Fed. Reg (Mar. 23, 1979) Fed. Reg (Aug. 15, 1973)...39, 41 vii

9 Case: Document: 58 Page: 9 11/18/ N.Y.C.R.R , , , 10, 42, , 43, , , , , , , Fed. R. App. P Fed. R. App. P OTHER AUTHORITIES Ctrs. for Medicare & Medicaid Servs., U.S. Dep t of Health & Human Servs., State Medicaid Manual...8, 9, 36 State Medicaid Plan...37 viii

10 Case: Document: 58 Page: 10 11/18/ PRELIMINARY STATEMENT Plaintiffs in this action are Medicaid applicants and recipients in New York City who cannot independently perform activities of daily living and therefore need certain home health services to live safely in the community rather than in nursing homes or other institutions. The Medicaid Act requires that New York, as a state participating in the federal Medicaid program, give applicants and recipients of these services an opportunity to contest through an administrative fair hearing any decisions to deny, reduce, or terminate them. 42 U.S.C. 1396a(a)(3). Plaintiffs brought this action under the Medicaid Act, enforced through 42 U.S.C. 1983, against the commissioners of the New York State Department of Health ( DOH ), which is the single state agency that administers Medicaid in New York, and the New York State Office of Temporary and Disability Assistance ( OTDA ) (with DOH, State Defendants ), principally to challenge State Defendants systemic delays in conducting fair hearings for Plaintiffs, deciding those fair hearings, and providing Plaintiffs the home health services that the fair hearing decisions direct. Plaintiffs also sued the commissioner of the New York City Human Resources Administration ( HRA or City Defendant ) to challenge conduct not at issue in this appeal. The federal regulation that defines and implements the Medicaid Act s fair hearing right requires that final administrative action be taken within 90 days of 1

11 Case: Document: 58 Page: 11 11/18/ a Medicaid applicant s or recipient s fair hearing request. 42 U.S.C. 1396a(a)(3); 42 C.F.R (f)(1). Data that State Defendants produced in discovery demonstrated their striking noncompliance with this federally-mandated guideline. In , for example, State Defendants complied with the requirement in only 2% of cases, leaving many Plaintiff class members without vital home health services, to which they indisputably were entitled under fair hearing decisions, for extended periods. Confronted with this evidence, the District Court certified the Plaintiff class, granted Plaintiffs motion for partial summary judgment, and enjoined State Defendants to ensure that final administrative action be provided to Medicaid home health services recipients that is, that their fair hearings be decided and, where the decisions order care, that care be delivered within 90 days of the Plaintiffs fair hearing requests. State Defendants have appealed the District Court s injunction to comply with the 90-day deadline, but not the District Court s order holding that the Plaintiffs have the right to enforce that deadline under 1983, which therefore is not properly before the Court. Even if it were, however, the District Court committed no error. Although State Defendants concede that Plaintiffs have a 1983 right of action under the Medicaid Act at 42 U.S.C. 1396a(a)(3), they contend that the District Court based its injunction on additional requirements in 42 C.F.R (f)(1), which, they assert, Plaintiffs have no right of action to 2

12 Case: Document: 58 Page: 12 11/18/ enforce. But the District Court followed clear, well-reasoned, and binding precedent from this Court in determining that because (f)(1) merely fleshes out the content of the fair hearing right contained in the Medicaid Act, to meaningfully enforce the statutory fair hearing right means also to enforce the time limit in the implementing regulation. Where, as here, a regulation defines the scope of an enforceable statutory right by imposing a temporal limitation, plaintiffs may seek through 1983 a remedy for violation of the right. The District Court did not err in so holding. State Defendants also contend that the injunction is overbroad in requiring them not merely to decide, but also to implement, fair hearing decisions within 90 days. They argue that the term final administrative action in (f) does not include actually providing home health services where a fair hearing decision directs them to do so. This argument raised for the first time on appeal, and therefore waived contradicts the term s plain meaning, case law interpreting it, the settled interpretation of the United States Department of Health and Human Services ( HHS ), and common sense. Moreover, it departs from State Defendants own longstanding interpretation of the federal regulation s requirements, their official conduct, and their own formal regulations on fair hearing compliance. 3

13 Case: Document: 58 Page: 13 11/18/ State Defendants further argue that the injunction violates remedial principles in requiring them to ensure compliance with the 90-day time limit. They contend that, because some aspects of the process of implementing fair hearing decisions fall to local agencies and private actors, it is unfair to make State Defendants comply with federal law. But compliance with federal law is State Defendants direct statutory obligation, and they have both the legal and the practical ability to compel that compliance by all relevant parties. The District Court did not abuse its discretion in enjoining them to do so. COUNTERSTATEMENT OF ISSUES PRESENTED 1. Is State Defendants attempt to challenge the District Court s holding on the scope of Plaintiffs right to enforce the Medicaid Act s fair hearing requirement under 1983 properly before this Court for consideration, where State Defendants did not appeal the relevant ruling of the District Court; 2. Did the District Court correctly hold that Plaintiffs clear cause of action under 1983 to enforce the Medicaid Act s fair hearing right includes enforcement of the temporal requirement in the federal regulation, which implements, defines and fleshes out that statutory right; 3. Did the District Court abuse its discretion in enjoining Defendants to comply with federal law that obligates them to ensure that both fair 4

14 Case: Document: 58 Page: 14 11/18/ hearing determinations, and final administrative action implementing those decisions, occur within 90 days. COUNTERSTATEMENT OF THE CASE I. The Plaintiff Class Plaintiffs in this action are Medicaid applicants and recipients who require home health services to live safely in their homes and in the community, and who have requested or will request fair hearings challenging denials, reductions, or terminations of these services. The Named Plaintiffs in this action all suffered because of State Defendants systemic failure to hold fair hearings, issue fair hearing decisions, and provide the care those decisions ordered within the 90 days mandated by federal law. Fei Mock, for example, whose severe scoliosis renders her unable to walk or stand on her own, requires nighttime assistance to use the restroom and turn in bed to prevent bedsores and ease her back pain. JA 626. Mock waited over six months before her fair hearing even was scheduled, during which time she often had no one to assist her with these and other tasks. Id. Boris Shakhnes, who has severe multiple sclerosis, waited more than seven months for State Defendants to schedule a fair hearing after his doctor s request for increased home health services was incorrectly denied; care ultimately was provided only after this suit was filed. 1 1 Hauser Decl., Ex. K, Decl. of Boris Shakhnes, at Dkt

15 Case: Document: 58 Page: 15 11/18/ Mikhail Feldman, who suffers from diabetes, hypertension, arthritis, and severe dizziness, waited over seven months for a hearing and had to delay two surgeries because he did not have the necessary home care in place to ensure safe recovery in his home. 2 Chaio Zhang, who has diabetes, recurrent angina, hypothyroidism, high blood pressure and a brain tumor, was without adequate care for four months while her fair hearing was pending and during the unreasonable delay in implementing services after she won the hearing. 3 And Mayra Valle, who suffers from multiple sclerosis, osteoporosis, high blood pressure, diabetes, asthma, chronic urinary tract infections, and depression, waited 174 days from her fair hearing request to receive the care to which she was entitled. 4 II. New York s Medicaid Fair Hearing System A. Statutory and Regulatory Scheme Medicaid is a joint federal-state program under which the federal government provides funding for state programs that supply medical assistance, rehabilitation, and similar services to needy individuals. 42 U.S.C et seq.; 42 C.F.R. 430 et seq. States are not required to participate in Medicaid, but if they do, they must comply with federal law and regulations. 42 U.S.C. 1396, 1396a, 1396c. 2 Hauser Decl., Ex. M, Decl. of Mikhail Feldman, at Dkt Hauser Decl., Ex. N, Decl. of Chaio Zhang, at Dkt Hauser Decl., Ex. O, Decl. of Shirley Campos-Valle, at Dkt. 90; Taylor Decl. 15, at Dkt

16 Case: Document: 58 Page: 16 11/18/ Any state participating in Medicaid must adopt an approved State plan, and must designate a single state agency to administer the program. 42 U.S.C. 1396a(a)(5); 42 C.F.R (b)(1). In New York, which participates in Medicaid, the single state agency responsible for the Medicaid program is DOH. N.Y. Soc. Serv. Law 363-a(1). Single state agencies like DOH are permitted to delegate certain responsibilities for administering the Medicaid program to local districts and other state entities. 42 U.S.C. 1396a(a)(1); N.Y. Soc. Serv. Law 365(1). Federal law, however, limits the scope of delegation to entities other than the single state agency, and requires that the single state agency ensure local agencies adherence to State plan requirements. 42 C.F.R (e) (limiting discretion); id New York law echoes these federal requirements. See infra Argument III.D. Federal law imposes a number of requirements on states participating in Medicaid. Among these is that the state 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 single state agency DOH, in New York is responsible for maintaining a fair hearing system that complies with applicable federal regulations. 42 C.F.R These regulations bind the state to, among other things, provide Medicaid applicants and recipients with 7

17 Case: Document: 58 Page: 17 11/18/ adequate advance notice of adverse actions, continue or reinstate services pending fair hearings in some circumstances, and conduct fair hearings that provide basic procedural protections. See, e.g., id , 206, 210, 211, 230, 231, 240, 241, 242, 244. Section of Title 42 of the Code of Federal Regulations sets forth specific guidelines regarding fair hearing decisions and their implementation. Subsection (f) of the regulation, at issue in this case, provides that the State must take final administrative action on a fair hearing decision within 90 days of the date the fair hearing was requested, or, in some circumstances involving appeals from managed care organization or prepaid inpatient health plan decisions, sooner. Id (f). Final administrative action occurs when the State has scheduled, conducted, and decided the fair hearing, and, where the fair hearing decision directs the provision of services, such services have been provided to the Medicaid recipient. See infra Argument III.B-C. HHS has issued a State Medicaid Manual to provide the agency s official interpretations of the [Medicaid] law and regulations, including 42 C.F.R Ctrs. for Medicare & Medicaid Servs., U.S. Dep t of Health & Human Servs., State Medicaid Manual, at Foreword B.1, available at ( State Medicaid Manual ). These interpretations are binding on Medicaid State 8

18 Case: Document: 58 Page: 18 11/18/ agencies. Id. Section 2900 of the State Medicaid Manual sets forth the agency s binding instructions with regard to Medicaid fair hearings, including the final administrative action requirement. That section makes clear that final administrative action includes compliance with fair hearing decisions. See infra Argument III.B. New York statutes and regulations restate and implement many of the federal fair hearing requirements. See, e.g., N.Y. Soc. Serv. Law 22 (right to a fair hearing); 18 N.Y.C.R.R (same), -3.3 (timely and adequate notice), -3.6 (right to continued or reinstated services), -5 (fair hearing processes and procedures). New York has addressed the subject matter of (f) in 18 N.Y.C.R.R and Like the federal regulation, these sections provide that all fair hearing decisions must be complied with by providing final administrative action promptly, but in no event more than 90 days from the date of the request for a fair hearing. 18 N.Y.C.R.R , B. New York s Fair Hearing Practices For Medicaid Home Health Services If a Medicaid applicant or recipient wishes to challenge an adverse action with respect to home health services for example, a denial, reduction, or termination of care he or she has the right to request a fair hearing. As New York s single state agency for Medicaid, DOH is responsible for providing those individuals with fair hearings that comply with federal law. DOH, however, has 9

19 Case: Document: 58 Page: 19 11/18/ delegated many aspects of the fair hearing process to OTDA. Specifically, OTDA schedules fair hearings, directs continued or reinstated services pending a fair hearing decision (called aid continuing ), conducts fair hearings, issues recommended decisions to DOH, and maintains a compliance unit to enforce fair hearing decisions. N.Y. Soc. Serv. Law 364. Pursuant to this scheme, Medicaid fair hearings are held before OTDA s Administrative Law Judges ( ALJs ). After eliciting and reviewing testimony, ALJs issue proposed decisions to the DOH Commissioner recommending particular fair hearing outcomes. DOH reviews these recommendations and issues final Decisions After Fair Hearing ( DAFHs ). N.Y. Soc. Serv. Law 22, 364(h); 18 N.Y.C.R.R If the decision is favorable to the applicant or recipient that is, it reverses the challenged decision to deny, reduce, or terminate care then the decision must be implemented, typically by providing the ordered services. 18 N.Y.C.R.R (b). The day-to-day mechanics of providing home health services to individual Medicaid recipients depends on the type of services. For example, certified home health care, involving medically-skilled services like nursing and physical therapy, is provided to patients by Certified Home Health Agencies ( CHHAs ), which are private providers that are certified by, and enroll with, the State. See N.Y. Pub. Health Law 3602(3), 3614(1); 18 N.Y.C.R.R If CHHAs 10

20 Case: Document: 58 Page: 20 11/18/ fail to comply with law, the State may sanction them in a variety of ways. See, e.g., N.Y. Soc. Serv. Law 364(2)(b); 18 N.Y.C.R.R , 504.3, 504.7, 504.8, ; see also 42 C.F.R (a). Personal care services and related services like long term home health care, involve less medical skill and include hands-on assistance with daily life activities. Personal care services are administered within New York City by HRA s Home Care Services Program, which contracts directly with private vendors to dispatch personal care attendants. DOH may take action (including against HRA) to ensure that personal care services are properly provided. See, e.g., N.Y. Soc. Serv. Law 20(3)(a), (e)-(f); id. 364(2)(c)-(e); 18 N.Y.C.R.R , ; 42 C.F.R In addition to the procedures set forth by law and regulation, State Defendants have developed other policies and practices designed to comply with federal requirements for fair hearings, including s requirement that final administrative action be taken within 90 days of a fair hearing request. Defendants long have operated on their own stated understanding, directives, and regulations that final administrative action refers to the actual provision of ordered services in an individual s home. See infra Argument III.C. III. Proceedings Below Plaintiffs brought this class action in June 2006 under the Medicaid Act, 42 U.S.C. 1396a(a)(3), and 42 U.S.C. 1983, alleging primarily that State 11

21 Case: Document: 58 Page: 21 11/18/ Defendants systemically failed to ensure final administrative action within 90 days of fair hearing requests challenging adverse decisions with respect to home health services (the 90-day claim ). 5 JA 50. Data produced in discovery demonstrated that State Defendants systematically failed to schedule, decide, and implement Medicaid home health services fair hearings within the 90 days required by The analysis of Plaintiffs expert, Richard Faust, demonstrate[d] striking noncompliance with the 90-day requirement on the part of the State agencies, DOH and OTDA, responsible for the resolution of Medicaid fair hearing requests. JA With respect to data from , Faust found overall compliance that is, implementing fair hearing decisions within 90 days of a fair hearing request in only 2% of cases; that 91% of cases took more than 150 days; and that the average duration for the entire process was 326 days. JA 658. From a subset of additional State data provided from 2008, Faust concluded that State Defendants failed even to issue fair hearing decisions within 90 days in 60% of cases. JA After discovery was complete, Plaintiffs moved to certify a class and for partial summary judgment on the 90-day claim. State Defendants cross-moved to 5 Plaintiffs also alleged that State and City Defendants failed to ensure timely and adequate notice of adverse actions and failed to ensure aid continuing pending fair hearing decisions; and alleged that State Defendants failed properly to oversee and supervise the City Defendant s fulfillment of its Medicaid obligations. JA None of those claims is at issue on this appeal. 12

22 Case: Document: 58 Page: 22 11/18/ dismiss the 90-day claim on the ground that Plaintiffs had no cause of action to enforce the Medicaid Act s fair hearing provision at 42 U.S.C. 1396a(a)(3), or 42 C.F.R Notably, State Defendants nowhere challenged the position that final administrative action requires not only issuing, but also implementing, fair hearing decisions an interpretation on which all parties agreed. State Defendants also moved to dismiss Plaintiffs other causes of action. The City moved for summary judgment on all of Plaintiffs claims. On September 30, 2010, the District Court issued a Memorandum Opinion and Order certifying Plaintiffs proposed class and granting Plaintiffs partial summary judgment against State Defendants on the 90-day claim. 6 Given the Medicaid Act s plain language, the nature of the fair hearing right, and the unambiguously binding obligation the statute imposed, the Court held that the fair hearing requirement expressed in 42 U.S.C. 1396a(a)(3) is enforceable through a 42 U.S.C cause of action. JA 623. Relying on this Court s ruling in D.D. v. New York City Bd. of Ed., 465 F.3d 503 (2d Cir. 2006), the Court held that regulations like can define the scope of a 1983 cause of action for enforcement of the underlying statutory right so long as they merely define or flesh out the content of that right. JA 625. Since both and the comparable 6 For purposes of deciding the motions, the District Court consolidated the case with Menking v. Daines, 09 Civ (S.D.N.Y.), which brought similar 90-day claims but where no discovery had taken place. The Court denied the Menking defendants motion to dismiss that action. 13

23 Case: Document: 58 Page: 23 11/18/ regulation in D.D. specif[y] the time limit for a government action mandated by statute, the Court held that likewise define[d] the content of the statutory fair hearing right. JA 626, 630. It stands to reason that placing a time limit on government action merely fleshes out the right to that action a right to action implicitly includes a right to that action occurring within a certain time limit. Just as justice delayed is justice denied, so too is action delayed action denied. JA 626. Having determined that Plaintiffs had a cause of action to enforce the 90-day requirement, the Court examined Plaintiffs statistical evidence of State Defendants striking noncompliance with that requirement. JA 657. The Court found that the data provided conclusive evidence of unlawful administrative delay, and granted Plaintiffs motion for partial summary judgment against State Defendants on their direct liability on the 90-day claim. JA 657, 661. As to the City, however, the Court concluded that the evidentiary record presently before the Court does not warrant entry of summary judgment, reserving those issues for resolution following trial. JA 663. The Court found Plaintiffs failure-to-supervise claim against State Defendants inadequately pleaded, but dismissed it with leave to amend. JA The Court also dismissed Plaintiffs notice claim without prejudice. 14

24 Case: Document: 58 Page: 24 11/18/ The Court directed the parties to submit additional briefing on the appropriate injunctive, declaratory and remedial measures to provide Plaintiffs relief. JA 664. Following submissions by both parties, in which State Defendants never argued that final administrative action excludes compliance, the Court issued its April 2011 injunction stating that Final Administrative Action occurs when defendants, separately or collectively, have scheduled a Fair Hearing, held the Fair Hearing, issued a Decision After Fair Hearing... and taken all actions necessary to implement the relief ordered in the DAFH. For cases in which care is ordered by the DAFH, Final Administrative Action occurs on the date on which an aide goes to the Appellant's home to provide the ordered home health care services. SPA 2 4. The injunction directs State Defendants to ensure that final administrative action, as thus defined, is provided within 90 days of an applicant s or recipient s fair hearing request, except in certain enumerated situations where tolling is appropriate. SPA 3 7. State Defendants appealed the April 2011 injunction but not the September 2010 Memorandum and Order on May 16, JA SUMMARY OF ARGUMENT State Defendants appealed the District Court s Order enjoining them to comply with the federal 90-day requirement for fair hearing compliance, not the Memorandum and Order holding that Plaintiffs had a 1983 cause of action to 15

25 Case: Document: 58 Page: 25 11/18/ enforce that requirement as part of the statutory right embodied in the Medicaid Act. State Defendants challenge to that holding accordingly is not properly before the Court. Even if the Court considers it, however, State Defendants argument that the District Court erred in holding that Plaintiffs may enforce the time limit lacks merit. Having concluded that the fair hearing right in 42 U.S.C. 1396a(a)(3) is enforceable via 1983 a holding State Defendants do not dispute the District Court held that it could enforce (f)(1) s 90-day requirement in conjunction with the statute because the regulation fleshes out the statutory right. On appeal, State Defendants contend that the District Court erred because the regulation imposes additional obligations not in the statute. But the question is whether those obligations are actually independent of the statute as State Defendants suggest, or rather define and flesh out the statutory right. The District Court, following controlling precedent, properly determined that the right to action in the Medicaid Act implicitly includes a right to that action occurring within the time limit set forth in 42 C.F.R a legal conclusion borne out by the experiences of Plaintiff class members, who suffered extensive delays in vindicating their fair hearing rights. JA 626. State Defendants also argue for the first time on appeal that (f) s requirement that they take final administrative action within 90 16

26 Case: Document: 58 Page: 26 11/18/ days of Medicaid recipients fair hearing requests in fact means only that they must render fair hearing decisions, not implement them by providing ordered services. The plain meaning of action, however, as distinct from decision, supports the District Court s and Plaintiffs interpretation of the term an interpretation confirmed by other courts and by HHS, the federal agency that promulgated and enforces the regulation. Indeed, State Defendants themselves consistently have interpreted final administrative action to mean precisely what the District Court held, both in this litigation and in their own regulations and official pronouncements. This Court should refuse to consider State Defendants waived argument, and in any event should reject the challenge on its merits. Finally, State Defendants claim that the injunction unfairly compels them to ensure that fair hearing decisions are implemented in 90 days, because they have designated private parties and the City to actually dispatch health aides to recipients homes. But State Defendants retain legal responsibility for providing statutorily-required Medicaid services as part of a fair hearing process they themselves control. State Defendants have ample ability to ensure that the relevant private parties and the City comply with federal law but even if they did not, the District Court did not abuse its discretion in holding them to their legal obligation to do so. Case law on failure-to-supervise claims, which are not at issue here, do not suggest to the contrary. 17

27 Case: Document: 58 Page: 27 11/18/ ARGUMENT I. State Defendants Did Not Appeal The District Court s Determination That Plaintiffs Right To Enforce The Medicaid Act Includes Enforcement Of The Implementing Time-Limit Regulation State Defendants urge this Court to vacate the District Court s holding that the temporal guidelines in 42 C.F.R (f)(1) flesh out the Medicaid Act s fair hearing provisions at 42 U.S.C. 1396a(a)(3) and are therefore enforceable with the Act under 42 U.S.C Br But State Defendants did not appeal the District Court s ruling that addressed that issue. A Notice of Appeal must designate the judgment, order, or part thereof being appealed. Fed. R. App. P. 3(c). When the notice of appeal fails to designate a particular order, the Court lacks jurisdiction to review it. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995). Jurisdiction is lacking even when the unappealed order relates to the order the appeal designates. See id. This Court repeatedly has refused to review district court orders that an appellant attempted to challenge through briefing, but that the Notice of Appeal did not designate. See, e.g., Muller v. Holmes, 353 F. App x. 664, 666 (2d Cir. 2009); Johnson v. Smithsonian Inst., 189 F.3d 180, 185 (2d Cir. 1999); Shrader, 70 F.3d at 256. Here, State Defendants Notice of Appeal is specific, and refers only to the [o]rder entered on the docket... as Docket Entry 146, that is, the District Court s order enjoining State Defendants to comply with the 90-day deadline. JA 18

28 Case: Document: 58 Page: 28 11/18/ , 692. By that purposeful and express reference, articulated by experienced counsel at the Office of the Attorney General, State Defendants chose to appeal only the injunction but not the Memorandum and Order addressing the enforceability of the 90-day deadline. Although this Court can choose to expand its jurisdiction to consider a non-appealed order where the notice of appeal is ambiguous, or where the notice does not reflect the appellant s actual intention, Shrader, 70 F.3d at 256, State Defendants notice in this case is neither ambiguous nor unintentional. See Muller, 353 F. App x. at 666 (because express language in appellant s notice of appeal indicated appeal of a specific order, court had limited jurisdiction); see also Johnson, 189 F.3d at 185 (because notice of appeal specifically states that [plaintiff] is appealing only the district court s June 25, 1998 decision dismissing the complaint, other issues were outside the court s jurisdiction). Whether Plaintiffs conceded right of action to enforce the Medicaid Act encompasses the 90-day time limit therefore is not properly before this Court, and the Court should decline to consider it. II. Plaintiffs Conceded Right To Enforce The Medicaid Act s Fair Hearing Requirement Includes The Right To Enforce The Temporal Component Fleshed Out In Its Implementing Regulation State Defendants concede that the Medicaid Act at 42 U.S.C. 1396a(a)(3) grants individual Medicaid applicants and recipients like Plaintiff class members a right to a fair hearing that they can enforce under State Defendants instead 19

29 Case: Document: 58 Page: 29 11/18/ challenge only the scope of that fair hearing right, arguing that the District Court impermissibly expanded 1396a(a)(3) by holding them to (f)(1) s 90- day limit because the regulation goes well beyond the statute. State Defendants are wrong. The District Court followed precisely this Court s holding in D.D., 465 F.3d 503, that an implementing federal regulation that places a time constraint on government action serves to flesh out rather than impermissibly expand the right to that action. This proposition finds support in extensive precedent, and none of State Defendants attempts to undermine it have merit. A. Section 1396a(a)(3) Unquestionably Confers An Enforceable Right To A Fair Hearing Under 1983 The District Court s first step was to hold that 1396a(a)(3) confers a federal right to a fair hearing enforceable through JA Defendants do not challenge this holding, nor could they. Federal trial and appellate courts overwhelmingly have found a right of action under 1983 to enforce the very section of the Medicaid Act that is at issue in this case, as well analogous surrounding statutory provisions. See, e.g., Gean v. Hattaway, 330 F.3d 758, 772 (6th Cir. 2003) (finding a private right of action under 1983 to enforce 1396a(a)(3)); Fishman v. Daines, 743 F. Supp. 2d 127, (E.D.N.Y. 2010) (same); McCartney v. Cansler, 608 F. Supp. 2d 694, 699 (E.D.N.C. 2009) (same); D.W. v. Walker, No. 09 Civ , 2009 WL , at *5 (S.D. W. Va. May 15, 2009) (same); Kerr v. Holsinger, No. Civ. A H, 2004 WL , at *5 20

30 Case: Document: 58 Page: 30 11/18/ (E.D. Ky. Mar. 25, 2004) (same); see also Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007) (finding a right of action under 1983 to enforce 1396a(a)(8)); Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 183 (3d Cir. 2004) (same); Bryson v. Shumway, 308 F.3d 79, (1st Cir. 2002) (same); M.K.B. v. Eggleston, 445 F. Supp. 2d 400, 428 (S.D.N.Y. 2006) (same); Rabin v. Wilson-Coker, 362 F.3d 190, 202 (2d Cir. 2004) (finding 42 U.S.C. 1396r-6 enforceable under 1983 because it reflects Congress s intention to confer a right to a particular Medicaid benefit, and citing case law finding a right of action to enforce 1396a(a)(8)); see generally Catanzano v. Wing, 103 F.3d 223, 225 (2d Cir. 1996) (finding right of action to enforce notice and fair hearing rights for Medicaid home care recipients). B. The 90-Day Requirement For Final Administrative Action In 42 C.F.R (f)(1) Defines And Fleshes Out The Statutory Fair Hearing Right At 1396(a)(3) Even as they acknowledge an enforceable right to a fair hearing, State Defendants insist that that right does not include any time limit whatsoever and that Plaintiffs cannot enforce the federal guidelines for prompt action, crafted to effectuate the statutory fair hearing right, as part and parcel of that right. State Defendants are incorrect. As this Court explained in D.D., federal regulations can and often do work hand in glove with the statutory scheme they implement, and define the specific content and scope of a right enforceable under 1983: 21

31 Case: Document: 58 Page: 31 11/18/ [S]o long as the statute itself confers a specific right upon the plaintiff, and a valid regulation merely further defines or fleshes out the content of that right, then the statute in conjunction with the regulation may create a federal right as further defined by the regulation. 465 F.3d at 513 (internal quotation marks omitted). Here, the District Court correctly held that (f)(1) defines and fleshes out the statutory right to a fair hearing by defining the 90-day outside time limit for administrative action, and is therefore enforceable, together with 1396a(a)(3), via JA 626. The District Court s holding faithfully applied the ruling and reasoning in D.D. There, this Court held that a federal regulation providing a timeframe within which the State had to implement individual education plans merely defines the scope of the right to a free[,] appropriate public education under the Individuals with Disabilities Education Act, a statute analogous to the Medicaid Act. 465 F.3d at 513. As here, the statutory provision granting an individual right did not contain a timeframe in which the legally required action must be completed, but the implementing regulation did. This Court reasoned that enforcing the implementing regulation enforced the statute itself not the regulation on its own since excessive delays would render the right meaningless. Id. at In holding that temporal limits define, flesh out, and make meaningful a federal statutory right, this Court followed other courts reasoning in circumstances where an important federal right would lose its force absent a timeframe for 22

32 Case: Document: 58 Page: 32 11/18/ implementation. In Doe v. Chiles, for example, the Eleventh Circuit permitted developmentally disabled individuals on waiting lists for intermediate care facilities to enforce regulatory 45- and 90-day timeframes for processing Medicaid applications, because those regulations define[d] the contours of 42 U.S.C. 1396a(a)(8) s reasonable promptness requirement for providing assistance. 136 F.3d 709, 714, 717 (11th Cir. 1998). The Court ruled that the time-limit regulation was part and parcel of the enforceable federal right: Where a valid regulation merely further defines or fleshes out the content of that right, then the statute in conjunction with the regulation may create a federal right as further defined by the regulation. Id. at 717 (internal quotation marks omitted); see also Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007) (enforcing 42 U.S.C. 1396a(a)(8) and stating that the relevant federal and state regulations and manuals define the statute s reasonable promptness requirement by providing 45- and 90-day timeframes). These cases, and the District Court s holding, are consistent with the principle that while regulations may not create independent enforceable rights, they may articulate enforceable rights that are inherent in statutes. In Fishman v. Daines, for example, the court enforced two regulations governing Medicaid recipients rights when they fail to appear at fair hearings because those regulations define the content of the statutory fair hearing right in a particular context: 23

33 Case: Document: 58 Page: 33 11/18/ [T]he fact that the cited regulations cannot create a stand-alone enforceable right does not defeat plaintiffs claims.... [E]ven though they do not independently create enforceable rights, federal regulations can assist in determining the scope of the right conferred by Congress in the relevant statute. 743 F. Supp. 2d 127, (E.D.N.Y. 2010) (internal quotation marks omitted); see also Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003) (confirming enforceability of regulations that flesh out statutory rights); Harris v. James, 127 F.3d 993, 1009 (11th Cir.1997) (same). Abrahams v. MTA Long Island Bus, 644 F.3d 110 (2d Cir. 2011), and other decisions finding that federal regulations cannot independently create rights enforceable via 1983, which State Defendants recite at length, Br , thus do not undermine the District Court s analysis here. In Abrahams, the Court observed that the ADA created a right to public participation in certain local agency processes, but declined to enforce the implementing regulation s requirement of public participation in additional processes because that substantively expanded the statutory right. 644 F.3d at The temporal limit in (f)(1), by contrast, does not expand the statutory fair hearing right or grant that right in circumstances the statute does not contemplate. Rather, it defines the scope and contours of the fair hearing right as the statute creates it. 24

34 Case: Document: 58 Page: 34 11/18/ State Defendants argument that (f)(1) imposes additional requirements that are not reasonably implicit in the statutory provision thus misses the mark. Br. 28. As the District Court logically reasoned, the right to action implicitly includes a right to that action occurring within a certain time limit otherwise, excessive delays could effectively deny the right. JA 626. Moreover, the need for prompt action in order to effectuate the fair hearing right [is] especially important when the issue is the wrongful denial of home health services, and administrative delays jeopardize recipients lives and health. Id. As the District Court observed, the time limits are not just guidelines for processing paper: Named Plaintiff and polio sufferer Fei Mock, for example, spent nights in great pain with inadequate home health assistance while awaiting her appeal. Since the majority of those who request fair hearings succeed in reversing the adverse decision, the need for prompt action is not merely theoretical. JA 627. State Defendants admit that delays in resolving hearings could be so extreme as to become tantamount to the denial of a fair hearing altogether effectively conceding that the right must embody some time limit. Br. 27. Yet they then claim, illogically, that the 90-day deadline for final administrative action somehow does not protect against that eventuality because it applies in different factual circumstances, and thus will not always be necessary in to ensure meaningful access to a fair hearing. Id Specifically, State Defendants note 25

35 Case: Document: 58 Page: 35 11/18/ that the 90-day deadline applies in some circumstances where aid continues pending resolution of the hearing. Id. 28. But only a limited category of individuals qualify for aid continuing and in fact, many Plaintiff class members receive none, including all Medicaid applicants; all recipients who have challenged a denial of increased care; and many recipients who have challenged reductions or terminations but did not request fair hearings within the required time period. See 18 N.Y.C.R.R Moreover, although HHS is aware that individuals may receive aid continuing because its own regulations provide for it, that fact did not prevent HHS from promulgating (f)(1) s 90-day deadline on the understanding that it provided a reasonable, workable framework for ensuring that hearing delays do not undermine the statutory fair hearing right. State Defendants also ignore that certainty and finality are essential in every case, since having a stable, predictable home environment with a continuity of care is critical to the needy individuals in the Plaintiff class. In any event, State Defendants argument that a regulation cannot flesh out a statutory right where the regulation s requirements are not necessary to effectuate the right in every imaginable circumstance would hold in virtually every case, and thus would swallow whole the idea that regulations can flesh out statutory rights at all. Relatedly, State Defendants argue that the fact that (f)(1) sets forth specific temporal guidelines as opposed to general or flexible ones 26

36 Case: Document: 58 Page: 36 11/18/ distinguishes this case from D.D., and means that the regulation actually creates obligations independent of the statute. Br. 29. This is a severely strained reading of D.D., which nowhere suggested that regulations are only enforceable if they impose flexible timeframes or that the Court would have reached a different result if the regulation had provided a specific timeframe. D.D. aside, State Defendants suggestion that flexible temporal rights are somehow preferable to specific ones turns logic on its head. Instead, the more specific the regulation, the more easily enforceable it is by the courts. See Doe v. Chiles, 136 F.3d at 718 & n.16 (noting with approval the specificity of Medicaid regulations providing 45- and 90-day timeframes for processing of Medicaid applications in holding that 1396a(a)(8) is enforceable under 1983). State Defendants finally argue that Heckler v. Day, 467 U.S. 104 (1984), suggests that specific time limits for hearing decisions are not inherent to a hearing right. Br. 31. But Heckler, which struck down judicially-created timeframes, 467 U.S. at , is entirely inapplicable to this case, which involves a timeline set forth in the federal regulation that directly implements a federal statutory right. The Supreme Court s concern was not that timeframes per se do not help effectuate rights, but that judicially-imposed deadlines likely would vary among jurisdictions and could disrupt agency administration and prevent... uniform administration of the Act concerns not present here. Id. at

37 Case: Document: 58 Page: 37 11/18/ Furthermore, the legislative history of the statute in Heckler showed that Congress considered adding statutory deadlines but rejected them after the Secretary of HHS cautioned against them. Id. at 114. Here, of course, the District Court did not impose a judicially-created deadline against the advice of HHS, or at all, but rather enforced the Department s own regulation fleshing out the statutory right. For all the above reasons, this Court should affirm the District Court s holding that Plaintiffs enforceable right to a fair hearing under 42 U.S.C. 1396a(a)(3) includes the right to final administrative action within 90 days of a fair hearing request. III. The District Court Did Not Abuse Its Discretion In Enjoining State Defendants To Comply With Federal Law By Implementing Fair Hearing Decisions Within 90 Days State Defendants argue for the first time on this appeal that s requirement that final administrative action occur within 90 days of a Medicaid recipient s fair hearing request means that it need only issue fair hearing decisions within that period, not implement them where they direct provision of services. This novel interpretation of final administrative action contradicts the plain meaning of the provision, case law interpreting it and comparable terms in other regulations, settled federal agency interpretation, and common sense. Moreover, it sharply departs from the State s own promulgated regulations, consistent official practice, express admissions, and litigation position below. Even if State 28