Opinion
019223/09.
Decided February 22, 2010.
Petitioner's Counsel: Abrams, Fensterman, Fensterman et al, Lake Success, NY.
Respondent NYSDOH's Counsel: Office of the Attorney General, Mineola, NY.
Respondent Imhoff's Counsel: Office of the County Attorney, Mineola, NY.
The Petitioner, the Brunswick Hospital Center, Inc. ("Hospital") brings this Article 78 proceeding for an order and/or Judgement from this Court to annul and reverse the decision of the Respondents, the Department of Health of the State of New York ("NYSDOH") finding Clare Thompson ineligible for Medicaid benefits for the time period of April 24, 2002 to June 5, 2007 and directing payment at the Medicaid rates to Clare Thompson for the time period of April 24, 2002 to June 5, 2007. The petition is determined as hereinafter provided.
Clare Thompson, a native of Jamaica West Indies, entered the United States with a valid passport on a guest visa status in 1990. She, however, remained in the United States beyond the prescribed time limit which consequently converted her legal immigrant status to that of illegal alien as her passport was cancelled by the then named United States Department of Justice and Naturalization Services ("INS") in 2000 . On or about December 25, 2000, Ms. Thompson was admitted to Brunswick Hospital Center ("Hospital") for medical treatment resulting from a stroke and thereafter was admitted to its Nursing Home facility from March, 2001 until June, 2007 when the facility closed.
Now the United State Department of Homeland Security-United States Citizenship and Immigration Services ("USCIS").
As Ms. Thompson had no or inadequate medical coverage, the Hospital, on or about January 4, 2001, applied for emergency Medicaid benefits on her behalf. The application was submitted to the agency charged with administering and/or implementing the New York State Department of Health ("NYSDOH") Medicaid benefit program in the appropriate geographic area, the Nassau County Department of Social Services ("NCDSS"). NCDSS denied the application citing failure to submit the requisite emergency medical documentation and/or forms. The Hospital, in compliance with the application process, resubmitted the application. However, NCDSS did not take action on the application. The Hospital requested a fair hearing regarding that issue. Ms. Thompson remained in the Hospital until March 5, 2001 when she was transferred to its Nursing Home where she resided until June 5, 2007.
In the interim, on or about April 23, 2002, the Hospital "applied" by letter, mailed by certified return receipt, to the USCIS for a change in Ms. Thompson's illegal immigrant status to Voluntary Departure Status. The fair hearing, held on December 9, 2002 and its ensuing decision upheld NCDSS' denial of benefits while directing it to process the Petitioner's resubmitted Medicaid application. NCDSS processed the application but it only approved Medicaid benefits for what it considered emergency treatment during the time period of December 25 through December 31, 2000. NCDSS again denied coverage for Ms. Thompson's continued hospitalization and subsequent residency and treatment in its Nursing Home contending that she was an undocumented immigrant ineligible for inclusion in the Person Residing Under Color of Law ("PRUCOL") immigrant classification thus disqualifying her from receiving medical benefits at that level of treatment.
The Hospital again petitioned the State seeking coverage for Ms. Thompson's hospitalization from on or about December 31, 2001 to March 5, 2002. That petition was denied. On or about August 5, 2005, pursuant to the 2004 settlement of the case, Aliessa v. Novello, 274 AD2d 347 [1st Dept 2000], the Hospital submitted a written request to NCDSS for retroactive relief as Ms. Thompson was qualified as a PRUCOL immigrant. PRUCOL members who were previously ineligible for non-emergency Medicaid benefits under Social Service Law § 122, were now eligible under the Aliessa decision and the resulting settlement agreement.
The NYSDOH issued and promulgated the following administrative policies to facilitate the provisions set forth by the Aliessa settlement: Administrative Directive 04 OMM/ADM-8, dated October 26, 2004; Administrative Directive 04 OMM/ADM-7, dated December 31, 2004; Informational Letter 07 OHIP/INF-2, dated March 15, 2007; and Informational Letter 08 OHIP/INF-4, dated August 4, 2008 .
See petitioner's Verified Petition, Exhibit J.
See petitioner's Verified Petition, Exhibit Q.
See respondent's Verified Answer, Exhibit 18.
See respondent's Verified Answer, Exhibit 19.
As the State took no action in response to the August 5, 2005 letter, the Hospital petitioned the NYSDOH for a fair hearing which was held on December 1, 2006 and January 4, 2007. Pursuant to that decision, NCDSS processed the Medicaid application. After requesting documents and bills from the Hospital, NCDSS determined that Ms. Thompson was not qualified as a PRUCOL and denied the request for Medicaid coverage. The Hospital petitioned the NYSDOH for a fair hearing, and the May 2009 decision affirmed NCDSS' denial of benefits. The State cited the policies set forth in 07 OHIP/INF-2 and 08 OHIP/INF-4 as basis for its decision.
A cogent discussion of the background regarding the relevant statutes affecting immigrants is in order. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA") [1. Pub.L. No. 104-193] signed into law on August 22, 1996, substantially restricted immigrants' eligibility for Medicaid. States were given the opportunity to continue to cover immigrants as before but would receive no federal funds for such coverage. New York State opted not to continue coverage for immigrants, enacting Social Services Law § 122 which conformed to the PRWORA.
Prior to this Act, immigrants who had been lawfully admitted to the United States for permanent residence or immigrants classified as PRUCOL were deemed eligible for Medicaid coverage. To be considered eligible as PRUCOL, immigrants must be living in the United States with the "knowledge and permission or acquiescence" of the United States Citizenship and Immigration Services. The twelve Aliessa plaintiffs who immigrated to the United States from various countries, were members of both classifications and all had serious life threatening illnesses. Those entering on or after August 22, 1996, were no longer immediately eligible for Medicaid and were now required to wait five years for coverage.
The Plaintiffs successfully argued that this statute violated the New York State Constitution and equal protection under the United States and New York State constitutions as the New York State Court of Appeals held that Social Services Law § 122 violated provisions of the State Constitution, which guarantees that aid for the needy be provided, by imposing an overly burdensome condition on eligibility that had nothing to do with need. Further, the statute did not meet the strict scrutiny standard and violated equal protection guarantees of the Federal and State Constitutions. Medicaid benefits were then restored to the affected immigrants. The Aliessa plaintiffs and the State negotiated an agreement to provide retroactive relief to those immigrants who were previously denied Medicaid coverage, which was so ordered by the Supreme Court of New York County on or about August 5, 2004.
While this Court acknowledges that an agency's interpretation of a statute that it administers and the regulations implementing it is entitled to great weight and judicial deference, the instant case turns upon specific facts in determining whether the Respondent State agency was reasonable in its administration and interpretation warranting such judicial deference.
Under the arbitrary and capricious standard of review, the State agency must examine relevant data and articulate a satisfactory explanation for its action including a rational connection between facts found and the choice made. Public Citizen, Inc. v. Mineta, 340 F3d 39, Cohen v. State of New York , 2 AD3d 522 [2nd Dept 2003], Tockwotten Associates, LLC v. New York State Div. Of Housing and Community Renewal, 7 AD3d 453 [1st Dept 2004] Generally, abuse of discretion is not an independent ground for review under CPLR § 7803(3). If a court overturned an agency's exercise of discretion, the agency was also said to have acted arbitrarily and capriciously. (McKinney's Consolidated Laws of New York Annotated, CPLR § 7803, Practice Commentaries).
The Respondent claims that Ms. Thompson did not produce documentation to support her classification as PRUCOL in its statement; ". . . [p]etitioner did not introduce this document [April 23, 2002 letter] at the fair hearing held on April 17, 2009 . . ." However, the transcript of the subject hearing uncovers that the Respondent was reading from that very letter on page 21. This inconsistency undermines any claim that there was a rational connection between the facts found and the choice made.
Commissioner Daines' Memorandum of Law, p. 5.
Transcript annexed to Commissioner Daines' Memorandum of Law, Exhibit 17.
The Respondent's insistence that Ms. Thompson does not meet its criteria to be classified as PRUCOL pursuant to its policies and procedures, is examined under the NYSDOH's Administrative Directive, specifically ADM-8. Notably, it provides in its Part IV, REQUIRED ACTION, A. DEFINITIONS; ¶ 10:
"Persons Permanently Residing in the United State under Color of Law (PRUCOL): A PRUCOL individual is a non citizen whose presence in the United States is known to the United States Citizenship and Immigration Services (USCIS) but whom the USCIS does not currently intend to remove or deport". p. 6.
The foregoing paragraph makes reference to ADM-7 which specifically sets forth the criterion for establishing knowledge and acquiescence by the USCIS:
"To determine whether an immigrant is within this PRUCOL category, the eligibility worker must look for the following: . . . Any correspondence (emphasis added) that the immigrant has received from the USCIS will establish that the USCIS has knowledge of the immigrant's presence in the United States. Such correspondence may include, but is not limited to, any of the following: . . . USCIS receipt notice . . . (emphasis added) . . . Each of these documents proves that the USCIS has received a form or other request for a change in status . . . As proof of correspondence with the USCIS, the eligibility worker may also accept a copy of a letter (emphasis added) that the immigrant has sent to the USCIS together with documentation, such as a U.S. Postal Service Return Receipt form, showing that the USCIS actually received the letter . . ." p. 26.
The ADM-7 further sets forth requirements for USCIS' acquiescence to the immigrant's presence in the United States:
"It is important for the eligibility worker to understand that there are two ways to establish that the USCIS is acquiescing in the immigrant's presence in the U.S. First, the immigrant may have a document from the USCIS that demonstrates acquiescence . . . Acquiescence can be demonstrated . . . even if the immigrant has no documentation from the USCIS, but rather, the USCIS has failed to respond to the immigrant's correspondence within a reasonable period of time. For example, the worker may determine that the USCIS is acquiescing in the immigrant's presence in the U.S. when the immigrant has applied to the USCIS for a change in status, presents documentation (such as a return receipt form) establishing that the USCIS has reviewed an application but has failed to respond within a reasonable period of time or has failed to take any action to enforce the immigrant's departure. . . ." p. 27.
Ms. Thompson has established knowledge of her existence in the United States by the USCIS pursuant to the foregoing provisions of ADM-8, and ADM-7 as there was correspondence with that agency by its cancellation of her passport in 2000, and the receipt of her application for a change in status in 2002. The USCIS has not taken any procedural steps to deport her and as over seven years has passed since it received the 2002 letter, it apparently has acquiesced to her presence in this country. The Respondent did not change its policies set forth in the ADM-7 and ADM-8 until three and four years later by issuing INF-07 and INF-08, effective March 2007 and August 2008 respectively where it now requires that an immigrant establish PRUCOL status by completing an actual USCIS issued application for a change of status, and requiring that the applicant make further attempts to contact the USCIS after the application has been submitted. At best, if INF-07 is indeed applicable, then the period of Ms. Thompson's treatment from March 2007 to June 2007 may be at issue. However, the Petitioner's application for Medicaid coverage predates the Respondent's change of its standing policies as provided in the 2007 and 2008 Opinion Letters, therefore having no impact on the entire time period of Ms. Thompson's treatment. As such, it is unreasonable to bind her by the Respondent's directives that postdated her period of eligibility.
Petitioner's Verified Petition, Exhibit B, cancelled passport.
Petitioner's Verified Petition, Exhibit E, Letter applying for change of status and return receipt.
The Respondent states that the subject decision after the fair hearing correctly applies the NYSDOH policy on the date that it was rendered and cites the case; Matter of Miller v. DeBuono, 90 NY2d 783 (1997) as support that its retroactive application of a 2008 Administrative Directive to an event that predated it. The facts of that case are distinguishable from the instant case. Matter of Miller involved new State legislation that prohibited the hiring of an employee in a health care setting with a prior documented history of patient abuse while mandating that such employees be reported to the State Registry. The petitioning nurse's aide, charged with abusing a patient, was terminated pursuant to the new legislation which became effective after the incident. The Court stated that her placement on the registry was the only legal consequence arising out of that law and it did not abrogate any rights that she had prior to the enactment of that law. The Court did remand the case to the Commissioner of Health for a new determination regarding her employment status using the constitutionally required preponderance of the evidence standard of proof. ( Matter of Miller at 790). In the instant case, the retroactive application of the Administrative Directive/Informational Letter deprived Ms. Thompson, unlike the Plaintiff in Matter of Miller, of her rights.
In a case following Matter of Miller, Herkimer v. Daines , 63 AD3d 1672 [4th Dept 2009], the court held that the State erred in applying a Medicaid Cap Statute retroactively to deny the county's request for reimbursement for expenses incurred prior to the effective date of the statute, absent any legislative or statutory language indicating that the statute should be applied retroactively. Further, the respondent, as the Respondent in the instant case, offered no rational explanation for that action. Therefore, the Respondent agency's decision denying benefits to Ms. Thompson is arbitrary and capricious and erroneous as a matter of law as it was not based on reasoned decision making. The Respondent's reliance on the 2007 and 2008 policies and procedures to retroactively deny benefits is improper.
It is noteworthy that the Respondent refers to the Compilation of Codes, Rules and Regulations of the State of New York (Code'), which sets forth the procedures for a fair hearing after being issued a denial of State issued social service benefits, to argue that Ms. Thompson's alleged failure to make subsequent contact with the USCIS disqualifies her from status as a PRUCOL. The relevant section provides:
". . . At a fair hearing concerning the denial of an application for or the adequacy of . . . medical assistance . . .; . . . the appellant must establish that the agency's denial of assistance or benefits was not correct or that the appellant is eligible for a greater amount of assistance or benefits or is exempt from work requirements pursuant to Part 385 of this Title. Except, where otherwise established by law or regulation, in fair hearings concerning the discontinuance, reduction or suspension of public assistance, medical assistance, food stamp benefits or services, the social services agency must establish that its actions were correct. . . . The fair hearing decision must be supported by and in accordance with substantial evidence."( 18 NYCRR 358-5.9)
The Respondent implies that the foregoing supports that Ms. Thompson has not met the burden of proof as articulated in the Code. As that section of the Code clearly refers to the procedures of the fair hearing (emphasis added), the Respondent's reference to it for that purpose is disingenuous and without merit. The record is quite clear that the Petitioner presented the documentation to support Ms. Thompson's eligibility for Medicaid at the fair hearing; therefore, the Petitioner has complied with the Code.
Further, the Respondent cites Papadopoulos v. Shang, 67 AD2d 84 [1st Dept 1979], and Tonashka v. Weinberg, 178 Misc 2d 280 to contend that Ms. Thompson has not satisfied the PRUCOL requirement of "person residing under the color of the law with the knowledge and permission or acquiescence" of the USCIS. However, a careful reading of Tonashka uncovers that the Papadopoulos and Tonashka courts were "fortified" by the language in the holding of an earlier case, Holley v. Lavine, 553 F2d 845; ". . . when an administrative agency or legislative body uses the phrase under color of law' it deliberately sanctions the inclusion of cases that are, in strict terms, outside the law but are near the border . . . With regard to the term permanently residing' the Holley court added, a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law,'" Tonashka at 283 quoting Holley v. Lavine, 553 F2d at 849-850.). In actuality, the holding and rationale of the Tonashka Court supports that the terms and requirements defining PRUCOL should be broadly interpreted.
In an earlier case, Berger v. Heckler, 771 F2d 1556, the broad interpretation of qualifying the term, "residing in the United States with the knowledge and permission of the [USCIS] and whose departure from the United States the [USCIS] does not contemplate enforcing" was addressed. The litigation arising from the denial of Social Security benefits to PRUCOL immigrants resulted in a consent judgment, executed by the Secretary of Health and Human Services ("Secretary"), where the foregoing terms were broadly defined. Notwithstanding her execution and consent, the Secretary issued departmental polices narrowing the subject terms and she refused to grant the relief to which the class action petitioners were entitled while using her interpretation to deny Social Security benefits to other similarly situated immigrants. Her rationale was that the broad interpretation as provided by the consent judgment would allow benefits to be granted to too wide a range of immigrant applicants. The Court held that the Secretary was bound by the judgment. Similarly, the Respondent in the instant case refused to comply with its own policies and it responded to the Petitioner's Medicaid application by refusing to act and ultimately drafting new policies that narrowed the PRUCOL requirements which disqualified the petitioner from receiving benefits. Not only is this unreasonable, it is an abuse of discretion.
The Respondent's statement, ". . . [i]t is common sense to expect that any alien who has submitted a good faith request [for removal] . . . would take steps to follow [up] on the status of the original request if no request to the first letter is at first received . . ." is astonishing if not perplexing. If this statement is indeed true and the Respondent actually believed it, then it would obviate the need to make the substantial changes to its own policies in 2007 and 2008. There was no requirement, express or implied, that Ms. Thompson "follow up" with the USCIS to establish PRUCOL status. The Respondent apparently concedes this by making it an express requirement in its Opinion Letters issued after (emphasis added) Ms. Thompson submitted her application for Medicaid benefits.
See respondent's Verified Answer, Memo[randum] of Law, p. 5.
Finally, the CPLR under Article 78 provides that when, in an Article 78 proceeding, an issue is raised as to whether a determination made as a result of a hearing held and at which evidence is taken on the entire record is supported by substantial evidence, the Supreme Court in which the proceeding was commenced must first dispose of such other objections as could terminate the proceeding . . . without reaching the substantial evidence issue. CPLR § 7803(4) If the determination of the other objections do not terminate the proceeding, the court must make an order directing that the proceeding be transferred to a term of the Appellate Division. CPLR § 7804(g).
Although the Respondent argues that a transfer to the Appellate Division is appropriate utilizing the standard of review of substantial evidence in this type of proceeding, the issues presented by the Petitioner are issues of law and a transfer to the Appellate Division is not warranted in this matter. Further, it is not unusual for a Petitioner to list several standards of review under Article 78. Therefore, this Court does not have to reach this issue. Bahouth v. Sardino, 125 AD2d 990 [4th Dept 1986]
The petition is GRANTED in its entirety regarding the approval of Medicaid benefits from April 24, 2002 to June 5, 2007 and it is
ORDERED AND ADJUDGED, that the decision of the Respondent State agency is annulled and reversed in its entirety as the Respondent is directed to make payment at the applicable Medicaid rates on behalf of Ms. Thompson from the time period, April 24, 2002 to June 5, 2007.
This decision constitutes the decision and order of the court.