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.
"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."
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.
2. Notices Sent to Class Members Whose Personal Care Services were Already Reduced, Giving 21 Days to Request Reinstatement.
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.
Between January 1, 2010 and May 1, 2011, the number of people in NYC on split-shift care fell from 1,356 to 1,274.
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.
"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.
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.
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.
Who are the named plaintiffs?
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.