Court temporarily blocks NY personal care cuts

The U.S. District Court for the Southern District of New York granted a preliminary injunction against recent cuts to the state’s Medicaid-funded services for people receiving 24-hour care, temporarily halting changes that it found likely violated the Americans with Disabilities Act.

“The evidence here establishes a substantial likelihood that defendants’ actions have violated federal law and the Constitution’s guarantee of due process…Administrators — even when faced with a major budget crisis — may not deprive citizens of the care to which they are legally entitled,” the court stated in the injunction, dated September 4.

The lawsuit involves people receiving so-called split-shift care services, meaning that multiple care workers take shifts assisting the person 24 hours a day with daily living activities, such as personal hygiene, dressing, feeding and walking. The services are necessary to ensure the individuals remain in their homes, as opposed to being forced to transfer to less integrated settings.

As part of a $70 million settlement reached in 2011 with the Department of Justice, which had accused the state of overbilling the federal government for its split-shift care program, the state made several regulatory changes to its 24-hour services.

Specifically, the state made changes differentiating its guidelines for patients needing “total assistance,” who qualify for split-shift care, and patients needing “some assistance,” who qualify for “live-in” or “sleep-in care,” meaning that they receive a 24-hour care worker whom is expected to be able to sleep during the night except on rare occasions.

After being denied a renewal their split-shift services, three plaintiffs sued the state.

One of the plaintiffs was determined to only need need “some assistance” with using the toilet, even though she has only partial limbs, including no hands or fingers. The state’s guidelines classified her as only needing “some assistance” on the grounds that she provided some assistance with the maneuver, even though she still would be completely unable to use the toilet without a caregiver present.

For another one of the plaintiffs, his disability requires that he be “turned” every two hours. The state changed his services, creating the situation where he was assigned a caregiver who was expected to be able to sleep during the night, despite his continuous need for assistance.

Along with the finding that the plaintiffs have likely demonstrated that the state is failing to provide “medically necessary care,” as required by federal Medicaid law, it also found that the state may have violated the plaintiff’s procedural due process rights by failing to properly notify the patients of the changes to their services.

From August 1, 2011 to June 15, 2011, 270 patients appealed the change to their services. In 97 percent of the cases, the state’s Administrative Law Judges reinstated the individuals split-care services.

The parties will now work to reach a settlement or continue to trial.