There are 2 developments in implementation of the preliminary injunction in Strouchler v. Shah, which challenges across-the-board cuts by the NYC Medicaid program in 24-hour "split shift" Medicaid personal care services.
First, on October 3, 2012, the NYS Dept. of Health issued GIS 12 MA/026, which is guidance to all local Medicaid programs in NYS that clarifies 2011 amendments to the state regulation defining eligibility for split-shift or "continuous 24-hour" personal care. 18 NYCRR 505.14(a). In part, these amendments restricted eligibility for "split-shift" care by limiting this assistance to people whose needs could not be predicted. See more about the 2011 amendments to the regulations here. The guidance states, in part,
"The fact that a person’s needs are predictable does not preclude the receipt of 24-hour split-shift care, if the person has a documented medical need for the tasks to be performed with a frequency that would not allow a live-in aide to perform them and still obtain an uninterrupted five hours of sleep."
This guidance is issued because the decision found that plaintiffs have a likelihood of success in showing that the regulatory amendment restricting split-shift care violates federal Medicaid law. The injunction requires:
The State shall, within thirty days of this order, publicly issue written clarification regarding the proper interpretation and application of the regulation with respect to the availability of split-shift care for needs that are predicted and for patients whose only nighttime need is turning and positioning.
In late September 2012, HRA sent notices to people whose split shift services had been reduced or terminated, giving them 21 days to request reinstatement. Reinstatement is not automatic -- the case will be reviewed. Download a copy of the notice here.
Strouchler was brought by three disabled Medicaid recipients in federal court in Manhattan in April 2012 to stop reductions in the personal care services that allow them to continue to live at home. The individuals affected are among the most disabled Medicaid recipients, who all require care at home both day and night, and who have been receiving care at this level, often for many years. The care is called “split-shift” care because it is provided by two attendants, one during the day and one at night. The New York City Medicaid program has reduced care to hundreds of these individuals, in some cases substituting instead less expensive “sleep-in” care, and in others terminating home care altogether. The Medicaid recipients claim that while “live in” care could be appropriate for some Medicaid recipients, it is not the proper level of care for many people who need frequent assistance both day and night, as they do.
Download the court decision here. (S.D.N.Y. Docket No. No. 12 CV 3216 - SAS). Click here to see the class action complaint. The court decision was reported in the New York Times on September 6th, 2012.
The plaintiffs are represented by attorneys from Cardozo Bet Tzedek Legal Services, a clinical program at Cardozo Law School, New York Legal Assistance Group, and JASA/Queens Legal Services for the Elderly.
The Court decision cites these facts:
From August 2011 through April 2012, the number of recipients fell from 1,135 to 945.
Of 270 people who requested hearings to challenge these reductions, 97% won their hearings. The Court cites this high reversal rate as evidence that the City's reductions in split-shift services are arbitrary and violate requirements of federal Medicaid law and constitutional due process protections.
The City's efforts to cut split-shift services across the board were in part made in response to its settlement of the False Claims Act case brought against NYC (Decision, page 6). See NYC Settles False Claims Act Suit on Medicaid Personal Care - Selfhelp and 41 Non-Profit Organizations Demand Feds Use $70 Million Fine to Ensure Access to Home and Community-Based Services. Additionally, the City proposed to the State that split-shift care be eliminated entirely. See decision p 7.
The decision finds that an injunction is necessary to prevent "irreparable harm," rejecting the City's contention that the hearing system is sufficient to protect individuals. First, the Court found that many individuals did not receive proper written notice of the City's intent to reduce their services and of the right to request a hearing -- notices were inconsistent and did not cite the specific reasons for the threatened reduction. Second, at least some individuals did not receive "aid continuing" while their hearings were pending -- suffering irreparable harm from lack of home care (one example cited was a 93-year-old woman who tried to drink less water at night to avoid wetting her diapers). Third, "... the mere threat of a loss of medical care, even if never realized, constitutes irreparable harm. Dr. Hernandez [a geriatrician and expert witness] testified that particularly for elderly and demented patients, anxiety exacerbates symptoms of mental illness and worsens pain. Thus, even home care recipients who do receive aid pending their fair hearing are likely to suffer irreparable harm as a result of the threatened reduction in their care." (p. 36-37). Fourth, 312 people who did NOT request hearings to contest cuts in split shift care may well have been irreparably harmed, and would likely have won their hearings had they requested them, given the 97% success rate of those who did seek a hearing.
The court found that plaintiffs are likely to succeed on the merits of their claims that the City and State violated procedural due process requirements and violations of the Medicaid Act. The decision does not reach the claims under the ADA.
The Court found that the State failed in its duty to ensure that the City complies with the federal Medicaid act. Even though the State repeatedly reversed the City in individual fair hearings, it failed to take extra steps to clarify its regulations and policies so that the City would stop repeating the same mistakes. As a result, over 300 people who did NOT request hearings to challenge cuts in their split-shift services may have been harmed.
The City failed to use "reasonable standards" for determining eligibility and the extent of services, and to provide the same services to everyone who is eligible for them, as required by federal Medicaid law. In particular, the Court found these standards unreasonable:
"Total" vs. "Some" Assistance. State regulations limit split-shift services to those who need "total" assistance with a task. The Court found that the City wrongly treated many people as needing only "some" assistance -- even though they could not perform a task without help.
Limiting Split-Shift to Those who need Help at Times that cannot be predicted. In 2011, the State amended its personal care regulations so that to qualify for split-shift care, one must have needs that cannot be "predicted." "However, the State’s witness testified that a patient who needed diaper changes and turning and positioning throughout the night would not be ineligible for split-shift services simply because the need was regular and could be predicted." (p. 42). The Court faulted the State for not clarifying the language of this regulation, leaving the City and hearing judges to apply inconsistent standards.
Turning and Positioning -- "Plaintiffs have established a substantial likelihood that they will prevail on their claim regarding the availability of home care for patients who have a medical need for turning and positioning during the night." The State's regulation, again, was unclear because it omits this task from needs that qualify one for split-shift care -- such as toileting and transferring. Again, the court faulted the State for failing to establish reasonable, clear standards.
Arbitrary Reductions for alleged "change in circumstance" or "mistake" -- without any real reason - and with inadequate Notice -- The federal judge hearing this case is the same federal judge who issued the decision in Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996). Mayer challenged a similar round of across-the-board cuts in Medicaid personal care services in NYC. The decision in Mayer barred arbitrary reductions in home care services, unless there was a written notice of a specific change in circumstances such as an improvement in condition, or where there was a mistake. That ruling was incorporated in state regulations. 18 NYCRR 505.14(b)(5)(c). The Court now found that "the City has, in dozens of cases, improperly cited either a change in condition or a mistake in previous assessment (and frequently both) to justify reducing or terminating split-shift care. These decisions are unreasonable." ..."It appears, however, that the City has expanded what was meant to be a narrow exception ...[correcting a mistake made in an earlier authorization] ...into a mechanism for simply reducing services arbitrarily..." (p. 17)
The City shall not reduce or terminate the split-shift care of any current recipient because:
the recipient needs only “some” assistance;
the recipient’s needs can be predicted or scheduled;
the recipient’s only medical needs are turning and positioning;
there has been a change in the recipient’s medical condition, unless the City submits to the recipient a declaration, signed by a physician who has personally examined the recipient, that details a material change in the patient’s condition and certifies
that because of the change the recipient is no longer eligible for split-shift care;
or because there has been a mistake in a previous diagnosis or assessment, unless the City submits to the recipient a declaration, signed by a supervising LMD, that details the mistake in the previous diagnosis and explains how it occurred.
City shall forward to plaintiffs’ counsel a copy of every notice, without any personal identifying
The State shall, within thirty days of this order, publicly issue written clarification regarding the proper interpretation and application of the
regulation with respect to the availability of split-shift care for needs that are predicted and for patients whose only nighttime need is
turning and positioning. (This is the directive issued on October 3, 2012 -- GIS 12 MA/026)
Retroactive relief -- The Court declined, for the time being, plaintiffs' request to reinstate split shift services for 312 people whose services were reduced or terminated since 2011, stating that there was not sufficient evidence to show why they didn't all request hearings. Subsequent to the decision, in late September 2012, HRA is sending notices to people whose split shift services had been reduced or terminated, giving them 21 days to request reinstatement. Download a copy of the notice here.
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Who are the named plaintiffs?
Charles Strouchler, one of the individuals who sued, had been an artist in New York but now suffers from advanced multiple sclerosis. He needs help throughout the night to reposition him every couple of hours to prevent bed sores, assistance with his breathing apparatus, and other needs. He has received split-shift services for many years. The City has determined to cut his services to “sleep-in” care on the ground that the decision to grant him the level of assistance 14 years ago, and every year since, was a “mistake.”
Audrey Rokaw is 94 years old and severely disabled. New York City Medicaid has notified her that her assistance will be cut because she does not need “total” assistance with toileting, since she is able to move and provide some assistance to the home health aide when her adult diapers are changed during the night, even though she is unable to change her diapers by herself. All of the plaintiffs in the case claim that they will have to move to nursing homes if their care is reduced, despite the fact that they have been able to live in their own homes for years with home care assistance.
See more information on Medicaid Personal Care or Home Attendant Services
For more information contact
Toby Golick, Cardozo Bet Tzedek Legal Services, email@example.com
Leslie Salzman, Cardozo Bet Tzedek Legal Services firstname.lastname@example.org
Ben Taylor, New York Legal Assistance Group, email@example.com
Donna Dougherty, JASA/Legal Services for the Elderly in Queens, ddougherty@Jasa.org