June 10, 2010

NYLAG Files Class Action to Enforce Medicaid Due Process Rights
On June 10, 2010, the Special Litigation Unit of the New York Legal Assistance Group filed a class-action lawsuit, Bernam v. Daines, in the U.S. District Court for the Eastern District of New York.  NYLAG filed the case on behalf of Medicaid applicants and recipients who seek to contest reductions, denials, or terminations of their home health care services, against the New York State Department of Health, the New York State Office of Temporary and Disability Assistance, and home health service provider Family Care Certified Services.  The lawsuit challenges New York State regulations that deny fair hearing rights to Medicaid-funded home health care applicants and recipients when their service providers characterize cuts in care as pursuant to physicians’ orders.  The case also challenges defendants’ systemic failure to notify class members that their services will be denied, reduced, or terminated.

More than 40,000 New Yorkers receive Medicaid-funded home health services to assist them with essential activities such as bathing, eating, ambulating, caring for wounds, and monitoring vital signs.  Under the current home health services system, doctors and service providers are supposed to work together to form service plans that address patients’ needs.  Unfortunately, many home care service providers are more concerned with cutbacks than with the best interest of their patients and manipulate the system and the doctors involved.  These providers often bypass proper consultations with doctors but still characterize changes in service as pursuant to physicians’ orders.  The federal Medicaid Act provides that any individual facing a reduction, termination, or denial of Medicaid benefits must receive a notice of a proposed adverse action and the opportunity to challenge it at a fair hearing.  Courts consistently have held that it is a denial of due process to cut Medicaid benefits without providing the notice and fair hearing rights set forth in the Medicaid Act.  Despite these unambiguous mandates, current New York State regulations provide that if a home health services provider decides to reduce, deny, or terminate Medicaid benefits pursuant to a physician’s order, fair hearing rights do not apply.

Meyer Bernam, the named plaintiff in the lawsuit, is one of the many Medicaid recipients harmed by the challenged regulations.  Mr. Bernam suffers from a variety of medical conditions including congestive heart failure, diabetes, and dementia; he has had four heart bypass surgeries and in October 2008 suffered a stroke that severely limited his movement.  Because of his many needs, at the recommendation of his doctors, he received home health services twenty-four hours a day, in two twelve-hour shifts.  In December 2009, Mr. Bernam’s service provider reduced his care to twelve hours per day, supposedly pursuant to an order from his primary physician.  Mr. Bernam received no notice of the reduction, and his daughter contacted NYLAG for help after nighttime aides stopped coming for their evening shift.  NYLAG was able to secure a fair hearing for Mr. Bernam; however, despite evidence from four doctors (including his primary physician) that he needed twenty-four hour care in two shifts, the Administrative Law Judge held that because Mr. Bernam’s reduction in care was pursuant to a physician’s order, the state regulations mandated that the Department of Health lacked jurisdiction to review the merits of his case.

Bernam v. Daines seeks to ensure that Mr. Bernam and other similarly situated Medicaid applicants and recipients have the ability to challenge reductions, terminations, and denials of their home health care services, even in cases in which their doctors appear to have ordered the adverse actions.  Immediately after filing the case, NYLAG secured a temporary restraining order ensuring that Mr. Bernam will receive twenty-four hour care in two shifts as the parties litigate preliminary issues in the case.

“Notice and the opportunity for a fair hearing are fundamental due process rights,” said Caryn C. Lederer, one of the NYLAG attorneys on the case.  “The current home health services system results in rampant miscommunication between service providers and doctors about appropriate patient care – circumstances that underscore the importance of ensuring that Medicaid recipients understand the reasons behind changes in their care and are permitted to present evidence of their eligibility for services at a fair hearing.”

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The New York Legal Assistance Group (NYLAG) provides free civil legal services to New Yorkers who cannot afford a private attorney. Founded in 1990, NYLAG works to empower individuals, protect fundamental legal rights, and promote access to justice. With a reputation for responding quickly to emerging community needs, the agency offers a broad range of high quality and culturally competent services. For more information, go to www.nylag.org.