UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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JANIE TAYLOR; EDDY LEMIEUX by his NEXT FRIEND

MARIE LADINY; and ANIBAL SANTIAGO by HIS NEXT

FRIEND DENISE RIVERA, individually and on behalf of

all others similarly situated,

Plaintiffs,

-against-

CLASS ACTION HOWARD ZUCKER, as Acting Commissioner COMPLAINT

of the New York State Department of Health;

KRISTIN M. PROUD, as Commissioner of the

New York State Office of Temporary and

Disability Assistance,

Defendants.

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PRELIMINARY STATEMENT

1. Medicaid recipients with disabling and chronic health conditions bring this suit to

challenge the lack of basic due process protections when their Medicaid home care services are

actually or threatened to be denied, reduced or terminated by the New York State Department of

Health (DOH).

2. Plaintiffs JANIE TAYLOR, EDDY LEMIEUX, and ANIBAL SANTIAGO bring

this class action for injunctive and declaratory relief, on behalf of themselves and a class of all

current and future Medicaid recipients in New York State who receive home care services

through Medicaid Managed Care Organizations and who have suffered or will suffer threatened

or actual denials, reductions, or terminations of their home care services without timely and

adequate notice, and / or without any change in their condition or circumstances which would

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justify a reduction or termination, and/or without aid-continuing benefits pending internal

appeals and the issuance of Decisions After Fair Hearings (DAFHs).

3. Defendant Zucker has contracted with Medicaid Long Term Care plans

(MLTCs) and Mainstream Managed Care plans (MMCs) (collectively Managed Care

Organizations (MCOs)) to provide home care services to most Medicaid recipients in New

York State who need such services. Home care services as used herein refers to Medicaid

personal care, home health, private duty nursing, and other long-term care services.

4. Because Defendants Zucker and Proud (collectively State Defendants) must

provide timely and adequate notice, aid-continuing, and the right to a fair hearing to any

recipient who is threatened with or suffers any adverse action, the contracts require the MCOs to

comply with all applicable federal and state laws and regulations. Named Plaintiff Janie Taylor

receives her home care from VNS Choice; Named Plaintiffs Eddy Lemieux, and Anibal

Santiago receive their home care through Health First.

5. Plaintiffs challenge the custom and practice of Defendant ZUCKER of

(a) threatening to reduce or terminate, and actually denying, reducing, or terminating

home health services without first providing timely and adequate notice of such adverse

actions and an opportunity for a fair hearing in violation of Plaintiffs rights under 42

U.S.C. 1396a(a)(3); 42 C.F.R. 438.10; 438.210(b),(c), and (d), 438.400-410;

431.211 ; New York Social Services Law 22(12); 18 N.Y.C.R.R 505.14(b)(5)(v)(c)

and 358-2-2, 358-2.23, and 358-3.3; and the Due Process Clauses of the 14th

Amendment to the United States Constitution, U.S. Const. Amend. XIV, 1; and of the

New York State Constitution, N.Y. Const. Art. I, 6; and

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(b) reducing and terminating home care services when there has been no change in the

recipients condition or circumstances that would justify the reduction or termination in

violation of Plaintiffs rights under the Due Process Clause of the 14th Amendment to the

United States Constitution, U.S. Const. Amend. XIV, 1, 42 CFR 438.210(a), and as

specifically set forth in Mayer v. Wing, 922 F.Supp. 902, and State Defendants own

regulations at 18 N.Y.C.R.R. 505.14 (b)(5)(v)(c); and

6. Plaintiffs challenge the custom and practice of Defendant Proud of failing to

authorize aid-continuing where required and of Defendant Zucker in not providing aid-

continuing when authorized, in violation of Plaintiffs rights under 42 U.S.C. 1396a(a)(3); 42

C.F.R. 438.420, 438.424 ; New York Social Services Law 365-a(8); New York Social

Services Law 22(12); 18 N.Y.C.R.R 358-3.6; and the Due Process clauses of the 14th

Amendment to the United States Constitution, U.S. Const. Amend. XIV, 1, and of the New

York State Constitution, N.Y. Const. Art. I, 6; and

7. Plaintiffs challenge Defendant Zuckers custom and practice of denying, reducing

and terminating Plaintiffs home care services, by sending inadequate and untimely notices, or

no notices at all, and of State Defendants custom and practice of failing to provide an

opportunity for a fair hearing with aid continuing, both of which threaten to result in the

unnecessary institutionalization of Plaintiffs, in violation of their right to receive services in the

most integrated setting appropriate to their needs as guaranteed by Title II of the Americans with

Disabilities Act, 42 U.S.C. 12131, et seq.; 28 C.F.R. 35.130 (d); Section 504 of the

Rehabilitation Act, 29 U.S.C. 794; 28 C.F.R. 41.51 (d); and 45 C.F.R. 84.4(b)(2).

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JURISDICTION AND VENUE

8. Jurisdiction over this action is conferred upon this Court by 28 U.S.C. 1331,

1343 and 1367. This action is authorized by 42 U.S.C. 1983 as an action seeking redress of the

deprivation of statutory and constitutional rights under color of law; and the Americans with

Disabilities Act, 42 U.S.C. 12117.

9. Venue is proper in the Southern District of New York pursuant to 28 U.S.C.

1391(b) in that it is the judicial district in which a substantial part of the events giving rise to

the claims occurred.

PARTIES

10. Plaintiff JANIE TAYLOR is an 84 year-old woman who lives alone in

Manhattan. Ms. Taylor suffers from numerous medical conditions including a mobility

impairment and requires home care services in the amount of 10 hours per day, 7 days per week

in order to live safely in the community.

11. Plaintiff EDDY LEMIEUX is an 18 year-old man who lives with his aunt and

uncle in Brooklyn. Because of his serious medical conditions, he requires 24 hour-per-day

continuous care in order to live safely in the community.

12. Plaintiff ANIBAL SANTIAGO is a 65 year-old man who lives alone in

Manhattan. Mr. Santiago suffers from numerous medical conditions including diabetes, high

blood pressure, and Schizoaffective disorder and requires home care services in the amount of 12

hours per day, 7 days per week.

13. Defendant HOWARD ZUCKER is the Acting Commissioner of the New York

State Department of Health (DOH), and as such is responsible for the administration of the

Medicaid program in the State of New York. He maintains an office at Corning Tower, Empire

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State Plaza, Albany, New York. He has contracted with over forty Managed Care Organizations,

which act as his agents for the purpose of providing home care services.

14. Defendant KRISTIN M. PROUD is the Commissioner of the New York State

Office of Temporary and Disability Assistance (OTDA) and as such is responsible for the

operations of the Office of Fair Hearings, including but not limited to ensuring compliance with

Aid Continuing Directives, scheduling and conducting Fair Hearings, issuing recommended

decisions after Fair Hearings, and ensuring compliance with Fair Hearing decisions involving the

Medicaid program. She maintains an office at 40 North Pearl Street, Albany, New York and at

14 Boerum Place, Brooklyn, New York.

CLASS ACTION ALLEGATIONS

15. Named Plaintiffs Eddy Lemieux, Janie Taylor and Anibal Santiago bring this

action, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, on behalf of

themselves and as representatives of a class of:

All current and future Medicaid recipients in New York State who receive home

care services through Medicaid Managed Care Organizations and who have

suffered or will suffer threatened or actual denials, reductions, or terminations of

their home care services without timely and adequate notice, and / or without any

change in their condition or circumstances which would justify a reduction or

termination, and/or without aid-continuing benefits pending internal appeals and

the issuance of Decisions After Fair Hearings.

16. The class is so numerous that joinder of all class members in this action would be

impracticable. Upon information and belief, there are hundreds of persons in the class.

17. Moreover, it would be impracticable for potential plaintiffs, who are, by

definition, disabled and indigent individuals, to obtain legal services on an individual basis for

their claims. Hence, their rights under the law may well be meaningless without certification of

a class action seeking common redress.

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18. There are questions of fact common to the class, including whether Defendant

Zucker has a custom and practice of threatening to take or taking adverse actions against

members of the class without providing timely and adequate notice advising class members of

the reason for the proposed action and of all information necessary to appeal such action, and

whether Defendants Zucker and Proud fail to authorize and provide aid continuing to members

of the class who are entitled to it.

19. There are questions of law common to the class, namely whether Defendant

Zuckers custom and practice of threatening to take or taking adverse actions in the form of

denials, reductions, and terminations of home care services without providing timely and

adequate notice of such actions, or when there has been no change in the recipients condition or

circumstances that would justify the adverse action, violates, 42 U.S.C. 1396a(a)(3); 42 C.F.R.

42 C.F.R. 438.10; 438.210, 438.400-410; 431.211 ; New York Social Services Law

22(12); 18 N.Y.C.R.R 505.14(b)(5)(v)(c) and 358-2-2, 358-2.23, and 358-3.3; and the Due

Process Clauses of the 14th Amendment to the United States Constitution, U.S. Const. Amend.

XIV, 1; and of the New York State Constitution, N.Y. Const. Art. I, 6; and whether the

failure by Defendants to authorize and provide required aid-continuing benefits to members of

the class pending the issuance of fair hearing decisions, violates 42 U.S.C. 1396a(a)(3); 42

C.F.R. 438.420, 438.424; New York Social Services Law 365-a(8); New York Social

Services Law 22(12); 18 N.Y.C.R.R 358-3.6; and the Due Process clauses of the 14th

Amendment to the United States Constitution, U.S. Const. Amend. XIV, 1, and of the New

York State Constitution, N.Y. Const. Art. I, 6.

20. The claims of Named Plaintiffs Janie Taylor, Eddy Lemieux, and Anibal Santiago

are typical of the claims of the class in that they did not receive timely and adequate notice of the

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reduction and discontinuance of their home care services. In addition, none of the Named

Plaintiffs have had a change in their condition or circumstances that would justify the reduction or

termination of their home care. Also, all three named plaintiffs have been denied aid-continuing

benefits to which they were entitled.

21. Named Plaintiffs will adequately represent the interests of the class. Named

Plaintiffs are members of the proposed class and there are no conflicts of interest between

Named Plaintiffs and other proposed class members in that all proposed class members would

benefit by obtaining timely and adequate notice of home care denials, reductions or terminations,

and aid-continuing pending the issuance of DAFHs.

22. Plaintiffs are represented by the New York Legal Assistance Group (NYLAG).

NYLAG is a public interest law firm with extensive experience in litigating class action cases,

including numerous cases involving public benefits, including Medicaid funded home care

services. For example, NYLAG was class counsel in Shakhnes v. Eggleston, 740 F. Supp. 2d

602 (S.D.N.Y. 2010) (certifying Rule 23(b)(2) class of Medicaid home health care recipients),

affd sub nom, Shakhnes v. Berlin, 689 F.3d 244 (2d Cir. 2012).

23. A class action is the appropriate method for a fair and efficient adjudication of

this matter in that Defendants have acted or refused to act in a manner generally applicable to the

class as a whole and a class action will avoid numerous separate actions by class members that

would unduly burden the courts and create the possibility of inconsistent decisions, thereby

making final injunctive and declaratory relief appropriate as to the class as a whole.

STATUTORY AND REGULATORY SCHEME

A. The Medicaid Program

24. The Medical Assistance Program (Medicaid) is a joint federal-state program

established under Title XIX of the Social Security Act ( Medicaid Act) that provides federal

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funding for state programs that furnish medical assistance and rehabilitation and other services to

needy individuals. 42 U.S.C. 13961396w-5; 42 C.F.R. 430.0456.725.

25. States are not required to participate in the Medicaid program, but if they do, they

must conform to federal law and regulations in order to qualify for federal financial participation.

42 U.S.C. 1396a, 1396c.

26. Any state participating in the Medicaid program must adopt an approved State

plan, and must administer the program through a single state agency. 42 U.S.C. 1396a(a)(5);

42 C.F.R. 431.10(b)(1); State Plan Under Title XIX of the Social Security Act Medical

Assistance Program (March 10, 2011).1

27. New York has elected to participate in the Medicaid program, and the single state

agency responsible for the administration of the Medicaid program in New York is the New

York State Department of Health. N.Y. Soc. Serv. L. 363-a(1); 1996 N.Y. Laws Ch. 474,

233248. This single state agency is permitted only to delegate certain functions (eligibility

determinations, appeals) to certain entities (local districts), and is prohibited from delegating the

authority to supervise the plan or to develop or issue policies, rules, and regulations on program

matters. 42 C.F.R. 431.10(c), (e).

B. Medicaid Home Care Services

28. Medicaid services include various long-term care services that are provided to

Medicaid recipients to enable them to live safely in their homes, including but not limited to home

health services, personal care services, the Consumer-Directed Personal Assistance Program

(CDPAP), and private duty nursing collectively referred to as home care services.

1 New York State plan available at https://www.health.ny.gov/regulations/state_plans/docs/nys_medicaid_plan.pdf,

with amendments at https://www.health.ny.gov/regulations/state_plans/status/.

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29. Home health services include part-time or intermittent nursing (known commonly

as visiting nurse), home-based occupational or physical therapy, home health aide services, and

medical supplies. 42 U.S.C. 1396d(a)(7); 42 C.F.R. 440.70; N. Y. Soc. Serv. L. 365-

a(2)(d), 367-j; 18 NYCRR 505.23, 10 NYCRR 763.5.

30. Personal care services means some or total assistance with personal hygiene,

dressing and feeding; and nutritional and environmental support functions and includes

assistance with toileting, walking, transferring, and other listed tasks where such services are

essential to the maintenance of the patients health and safety in his or her own home. 42 U.S.C.

1396d(a)(24); 42 C.F.R. 440.167; N.Y. Soc. Serv. L. 365-a(2)(e); 18 N.Y.C.R.R.,

505.14(a)(1), (a)(6)(ii)(a).

31. The Consumer-Directed Personal Assistance Program (CDPAP) is a variation on

personal care services in which the aide may perform tasks that would otherwise be considered

skilled and require a licensed nurse. Also, the Medicaid recipient or consumer has authority

to select, train, and schedule her own aides. New York Soc. Serv. L. 365-f; New York Educ.

Law 6908(1)(a).

32. Private duty nursing services are authorized for Medicaid recipients who need

full-time skilled care, such as tube feeding, suctioning a tracheostomy or ventilator care for

which a registered or licensed practical nurse is authorized to work for an entire full-time daily

shift, rather than on a part-time or intermittent basis. 42 U.S.C. 1396d(a)(8); 42 C.F.R.

440.80; New York Soc. Serv. L. 365-a(2)(l).

33. All four of these types of home care services and other services meeting long-

term chronic conditions must now be obtained through managed care plans as described below.

C. Medicaid Managed Care and the 1115 Waiver in New York

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34. Medicaid Managed Care Organizations (MCOs) are privately-owned and

operated health insurance entities which contract with State Medicaid programs to provide

Medicaid recipients with a package of covered services in exchange for payment by the State of

an actuarially-sound capitation payment per enrollee. 42 U.S.C. 1396b(m); 42 C.F.R.

438.2, 438.6.

35. Section 1115 of the Social Security Act allows the Centers for Medicare and

Medicaid Services (CMS) of the United States Department of Health & Human Services to

waive certain otherwise mandatory provisions of the Act in order for a state to require mandatory

enrollment of some or all Medicaid recipients into private managed care plans. 42 U.S.C.

1315. Waiver of the freedom of choice requirement, under Section 1902(a)(23)(A) of the Act,

enables the State to require beneficiaries to enroll in managed care plans which limit their

members to using a limited network of medical providers that contract with the plan. 42 U.S.C.

1396a(a)(23)(A). Waiver of the statewideness provision, under Section 1902(a)(1) of the

Act, allows the state to require recipients living in certain counties of the State, but not others, to

enroll in managed care plans. 42 U.S.C. 1396a(a)(1).

36. New York State has operated its Medicaid Managed Care programs through an

1115 waiver, first approved in 1997, called the Partnership Plan (Waiver # 11-W-00114/2). N.Y.

Soc. Serv. L. 364-j(2)(a). See Partnership Plan Waiver Authority (CMS, as revised January

2014), available at

https://www.health.ny.gov/health_care/managed_care/appextension/docs/waiver_authority.pdf;

This plan waives three provisions of Federal Medicaid law: statewideness, comparability, and

freedom of choice. Id. However, the authority for the waivers specifically provides that [a]ll

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requirements of the Medicaid program expressed in law, regulation, and policy statement, not

expressly waived in this list, shall apply to the demonstration.... Id.; 42 C.F.R. 431.420.

37. The Partnership Plan allows the State to require most Medicaid recipients to

enroll in two different types of MCOs. Since the 1990s, most Medicaid recipients who do not

also have Medicare must enroll in mainstream Medicaid managed care plans (MMC), and,

beginning in 2012, those with Medicare who need home care services must enroll in Managed

Long Term Care (MLTC) plans. Partnership Plan Special Terms & Conditions 2-3 (CMS

January 2014), available at

https://www.health.ny.gov/health_care/managed_care/appextension/docs/special_terms_and_con

ditions.pdf.

38. Until August, 2011, home care services were carved out of the MMC service

package. Those MMC members who needed home care services obtained authorizations for

these services outside of the MMC plans, most commonly through their local Medicaid offices.

In August, 2011, pursuant to a 2010 amendment of the Partnership Plan waiver, home care

services were carved in or added to the MMC benefit package. Today, MMC plans are the

only way to receive home care services for Medicaid recipients without Medicare.

39. In 2012, CMS approved New Yorks expansion of the Partnership waiver to

require mandatory enrollment into another type of MCO called Managed Long-Term Care

(MLTC). N.Y. Pub. Health L. 4403-f. Although MLTC plans existed since 1997, they were

strictly voluntary. The 2012 amendment of the Partnership waiver allowed DOH to require adult

Medicaid recipients who also had Medicare (dual eligibles) to enroll in MLTC plans in order

to receive Medicaid-covered home care services. Id. at 2-3.

40. CMS approval of an 1115 waiver or its expansion is conditioned on the States

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compliance with a set of Special Terms and Conditions (STCs).2

41. Defendant Zucker has entered into a contract with each MCO pursuant to which

MCOs provide home care services to Medicaid recipients.

42. These contracts require that the MCOs comply with all applicable federal and

state statutes and regulations.

43. Medicaid MCOs must make Medicaid services included within their benefit

package available to the same extent they are available to recipients of fee-for-service Medicaid.

42 U.S.C. 1396b(m)(1)(A)(i).

44. State contracts with MCOs must require that the services . . . be furnished in an

amount, duration, and scope that is no less than the amount, duration, and scope for the same

services furnished to beneficiaries under fee-for-service Medicaid, as set forth in 440.230. 42

C.F.R. 438.210(a)(2). The contracts must further ensure that the services are sufficient in

amount, duration, or scope to reasonably be expected to achieve the purpose for which the

services are furnished. 42 C.F.R. 438.210(a)(3)(i).

45. State contracts with MCOs must specify what constitutes medically necessary

services in a manner that(i) Is no more restrictive than that used in the State Medicaid

program as indicated in State statutes and regulations, the State Plan, and other State policy and

procedures. 42 C.F.R. 438.210(a)(4)(i).

46. The Special Terms and Conditions for the 1115 Waivers provides that [b]enefits

provided through this Demonstration for the mainstream Medicaid managed care program are

2 The CMS Approval Letter and the Special Terms and Conditions Partnership Plan are posted at

http://www.health.ny.gov/health_care/medicaid/redesign/1115_waiver_amendment_for_managed_long_term_care.h

tm. Amended Special Terms and Conditions available at

http://www.health.ny.gov/health_care/managed_care/appextension/docs/special_terms_and_conditions.pdf .

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identical to those in the Medicaid state plan. Partnership Plan Special Terms & Conditions 21

(CMS January 2014).

D. Notice and Appeal Rights in Medicaid and Medicaid Managed Care

47. Federal law and regulations require a states Medicaid program to provide

Medicaid applicants and recipients with recourse to an administrative fair hearing when

Medicaid benefits are denied, reduced, or terminated. 42 U.S.C. 1396a(a)(3); 42 C.F.R.

431.220.

48. When determinations are made to deny, reduce, or terminate Medicaid, applicants

and recipients must be given timely and adequate notice of their right to a fair hearing. 42

U.S.C. 1396a(a)(3); 42 C.F.R. 435.919, 435.912, 431.206(b), 431.206(c), 431.210; N.Y.

Soc. Serv. Law 22(12); 18 N.Y.C.R.R 505.14(g)(3)(x).

49. When determinations are made to reduce or terminate Medicaid benefits,

recipients who request a fair hearing in a timely manner are entitled to receive their benefits

unchanged (called aid-continuing) until a Decision After Fair Hearing (DAFH) is issued. 42

U.S.C. 1396a(a)(3); 42 C.F.R. 431.230(a), 431.231(c), 438.420(b); N.Y. Soc. Serv. Law

365-a(8); 18 N.Y.C.R.R. 358-3.6, 505.23(d); U.S. Const. Amend. XIV, 1; N.Y. Const. Art.

I, 6.

50. Medicaid MCOs are required by Federal law and regulation to have a grievance

and appeal procedure, including the right to challenge a denial of coverage. 42 U.S.C. 1396u-

2(d)(2)(c); 42 C.F.R. 438.400438.424

51. When an MCO takes an action (defined to include a denial or limited

authorization of a requested service; and a reduction, suspension, or termination of a previously

authorized service), it must send a written notice to the enrollee explaining the action, the

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reasons for the action, the right to appeal, the procedures for appealing, how to request expedited

resolution, and the right to continuation of services pending the appeal. 42 C.F.R. 400(b)(1-

2), 438.404(a).

52. Whether the notice of action must be given in advance of the proposed action

depends on whether the action is a denial of a new service, or a reduction of a previously

authorized service. The notice of action regarding a denial or limited authorization of a new

requested service must be provided to the enrollee as expeditiously as the enrollee's health

condition requires and within State-established timeframes that may not exceed 14 calendar days

following receipt of the request for service, with a possible extension of up to 14 additional

calendar days.... 42 C.F.R. 438.404(c)(3), 438.210(d)(1). For service authorizations where

a provider indicates, or the MCO . . . determines, that following the standard timeframe could

seriously jeopardize the enrollee's life or health or ability to attain, maintain, or regain maximum

function, the notice may be provided no later than three working days after the request for

service, also subject to a possible 14-day extension. 42 C.F.R. 438.210(d)(2).

53. In contrast, the notice of action regarding a reduction, suspension, or termination

of a previously authorized service must be sent by the MCO at least ten days before the date of

the proposed action. 42 C.F.R. 438.404(c)(3), 431.211 (this is the same regulation governing

fee-for-service Medicaid

54. In mainstream MMC plans, defendant Zuckers policy allows plan members to

appeal an adverse determination either by requesting an internal appeal within the plan or by

requesting a fair hearing. Exhaustion of the internal appeal procedure is not required as a pre-

condition of requesting a fair hearing. Aid continuing must be provided upon a timely request

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either for an internal appeal or fair hearing, but if an MMC plan denies an internal appeal,

defendant Zucker fails to require advance notice and aid continuing pending a fair hearing.

55. In MLTC plans, defendant Zuckers policy requires exhaustion of internal appeals

within the plan as a pre-condition of requesting a fair hearing.

56. MCOs are required to give enrollees reasonable assistance in taking the

procedural steps required for filing grievances and appeals, must allow appeals to be filed orally,

must provide an opportunity for presentation of evidence and legal/factual allegations in person

or in writing, and provide an opportunity to examine the case file. 42 C.F.R. 438.406.

FACTS OF THE INDIVIDUAL NAMED PLAINTIFFS

Named Plaintiff Janie Taylor

57. Janie Taylor is an 84 year-old woman who lives alone in Harlem and receives

Medicaid.

58. Ms. Taylor has been authorized to receive Medicaid home care services in the

amount of 10 hours per day, 7 days per week since 2011.

59. She suffers from numerous medical conditions including diabetes, hypertension,

unsteady gait, and high blood pressure.

60. Because of her medical conditions she needs assistance with many of her daily

activities of living, including all mobility and transferring, preparing all meals, shopping,

bathing, dressing, and household chores.

61. Ms. Taylor has a mobility impairment and needs assistance from another person

to safely move about inside her apartment as well as outside. While she is able to walk very

short distances, for example across a room, at a very slow pace, she has an unsteady gait and if

she walks without a person to support her and provide contact guarding, she is at risk of falling.

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An aides assistance ten hours per day is critical to enable her to safely engage in her basic daily

activities, including going to the bathroom and preparing meals.

62. In March 2013, Ms. Taylor was mandatorily enrolled in VNS CHOICE MLTC

plan. The plan initially maintained her home care in the amount of 10 hours per day, 7 days per

week as previously authorized by the local social services district HRA.

63. Ms. Taylor received that amount of home care from VNS CHOICE until July 1,

2014, when VNS CHOICE reduced her services without notice to 5 hours per day, 7 days per

week.

64. On June 23, 2014, Ms. Taylor received a document entitled Summary of

Authorized Services from VNS Choice. The document is dated June 19, 2014.

65. The document states that Ms. Taylor is authorized to receive home care for the

period of July 1, 2014 through December 31, 2014, in the amount of 5 hours per day, 7 days per

week.

66. Although this authorization for care is for an amount that is one half of what she

previously had been receiving, the document does not purport to reduce her care; rather it

states that it is a new authorization.

67. The document does not advise Ms. Taylor of her right to an internal appeal, or a

fair hearing, or aid-continuing.

68. The document does not include a reason for the reduction in care.

69. There had not been any change in Ms. Taylors condition or circumstances.

70. On or about June 30, 2014, a social worker at the office of Ms. Taylors physician

contacted VNS Choice and requested an internal appeal to challenge the threatened reduction of

her home care services .

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71. On July 1, 2014, Ms. Taylor was notified by VNS by telephone that the internal

appeal was denied, and that a notice would be sent soon, but that her care would be reduced to

the new lower amount, effective July 1st. On July 1

st, her aide left after working 5 hours. Since

July 1, 2014, she has received only 5 hours per day, 7 days per week.

72. On July 1, 2014, Ms. Taylor contacted NYLAG, which advised her of her right to

request a fair hearing.

73. On July 1, 2014, NYLAG requested a fair hearing for Ms. Taylor.

74. On July 2, 2014, NYLAG telephoned Defendant Proud and after learning that the

fair hearing request had not yet been processed, requested that it be processed immediately.

75. On July 2, 2014, Defendant Proud processed the request for a fair hearing and

ordered aid-continuing.

76. Despite this aid-continuing directive from Defendant Proud, VNS Choice has not

restored Ms. Taylors care to the full amount of 10 hours per day, 7 days per week.

77. Before her care was reduced, Ms. Taylors aide arrived at 9am, and stayed until

7pm; now her aide arrives at 9am and leaves at 2pm.

78. Before her care was reduced, Ms. Taylors aide prepared her dinner, cleaned up,

and helped her use the bathroom and prepare for bed. Now Ms. Taylor must complete these

tasks alone, and because she is so unsteady on her feet, she is at constant risk of falling. Because

she cannot prepare her own meals, she must eat cold dinners every night, left out for her several

hours earlier by her aide. Because she cannot go outside unassisted, she now is unable to leave

her apartment after 2pm.

79. On or about July 7, 2014, Ms. Taylor received a letter from VNS Choice dated

July 2, 2014, entitled Notice of Action Denial of Benefits. It does not state an effective date.

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Ms. Taylor made no request for an increase in benefits, and the notice mischaracterizes a

determination to reduce care as a denial of a request for an increase.

80. In the section of the July 2nd letter, which she received 6 days after her care was

reduced, entitled Type of Benefit and Summary of Request, the letter states: Home health

aide hours-Request for increase of current hours from five (5) hours/ seven (7) days per week to

ten (10) hours/seven (7) days a week. In the section entitled Reason for Denial, the letter

states:

The request for ten (10) hours of home health aide service, seven (7) days per week is

denied. Based on the clinical assessment, the current level of service of five (5) hours,

seven (7) days per week is adequate to meet your functional and personal care needs.

Additional hours would be for safety supervision and/or companionship which are

services not covered which are services not covered by VNSNY CHOICE Managed Long

Term Care.

81. It is not true that the only reason Ms. Taylor needs more than 5 hours per day is to

provide her with safety supervision and companionship. Ms. Taylor needs assistance with meal

mobility, meal preparation, and personal hygiene tasks associated with preparing for bed.

Named Plaintiff Eddy Lemieux

82. Eddy Lemieux is an 18 year-old male who receives Medicaid and lives with his

aunt and severely disabled uncle in Brooklyn.

83. Mr. Lemieux suffers from multiple medical conditions including Noonans

syndrome, a congenital disease, with related diagnoses of pulmonary stenosis, severe scoliosis,

lymphedema, bone disease, congenital pulmonary stenosis, and pulmonary insufficiency.

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84. Because of these conditions, Mr. Lemieux is extremely weak and frail and needs

assistance to complete all of his daily activities including walking, transferring, bathing and other

personal hygiene activities, medication administration, and going to the bathroom.

85. Mr. Lemieuxs uncle receives home care as well, and is too disabled to care for

him. Mr. Lemieuxs aunt works two jobs, one of them at night, to support the family, so she

cannot take care of him either.

86. In order for Mr. Lemieux to remain in the community, he requires 24 hour-per-

day continuous care. On weekdays, he attends a special school where he is cared for, but the rest

of the day and nights, he needs a personal care aide.

87. Mr. Lemieux was originally authorized to receive home care through the CDPAP

program, which was formerly administered by the local Medicaid district in New York City.

88. For many years Mr. Lemieux was authorized to receive 24 hour-per-day

continuous home care in two 12-hour shifts.

89. In 2012 Mr. Lemieux was required to enroll in Healthfirst, which assumed control

of his Medicaid home care services.

90. On January 14, 2014, Healthfirst sent Mr. Lemieux a document which, though

lacking any title, purported to be a notice of authorization for consumer-directed personal care

services which would be tapered as follows, 12 hours 7 days per week for 4 weeks then 8 hours,

7 days per week for 4 weeks, then 5 hours, 3 days per week for 4 weeks, then discontinue

services. The reduction was slated to begin on January 25th, with the reduction to 12 hours/day,

then on February 23rd to 8 hours, then on March 24th

to 5 hours, then discontinuance on April

22, 2014.

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91. Although the notice has no title at all, let alone any indication that it is a notice of

reduction and discontinuance, in the body of the text it notes that Healthfirst has reviewed the

request for Personal Care Service 24 hours 7 days a week. The notice goes on to say it has

been determined that the requested service(s) is not/are no longer medically necessary because

after review of the clinical information provided the Medical Director has determined that the

amount of/level of Personal Care Services requested is not medically necessary.

92. The January 14, 2014 notice did not identify any change in Mr. Lemieuxs

medical condition or social circumstances, or any other change which might explain why an

individual who had previously been found to need 24 hour-per-day continuous care could be

tapered to no care at all over the course of 12 weeks.

93. There had been no change in Mr. Lemieuxs medical condition or circumstances.

94. The notice is six pages long and densely formatted. Information about requesting

an internal appeal is on pages two and three. Information about requesting a fair hearing and the

right to aid-continuing is on page four, but with no information on how to request a hearing.

The notice references a separate Managed Care Action Taken form for instructions on

requesting a fair hearing, which was not attached to the notice mailed.

95. In response to this notice, Mr. Lemieuxs aunt requested an internal appeal

through Healthfirst.

96. She requested the internal appeal before January 25th, the effective date of the

notice, and as a result, Mr. Lemieux was entitled to aid-continuing, which meant continuation of

continuous 24-hour care in two 12-hour shifts pending the internal appeal decision. If that

decision was adverse, Healthfirst should have provided notice again, affording him the

opportunity to request a fair hearing with aid continuing.

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97. Healthfirst did not acknowledge that an appeal had been requested, nor did it give

Mr. Lemieux an opportunity to submit documents to be considered during the appeal.

98. On January 27, 2014, Healthfirst sent a Notice of Final Adverse Determination

which contained its determination to uphold the Denial of Personal Care Services, 24 hours x 7

days per week but it also modified the authorization and determined to approve Mr. Lemieux to

receive personal care services in the amount of 12 hours-per-day for 6 weeks, and then to

reassess.

99. The January 27th notice was not timely, as it was not provided ten days in advance

of the proposed reduction to 12 hours per day. Instead, the January 27th

notice purported to

reduce services retroactively to 12 hours-per-day effective January 24th

. In effect, this affirmed

the first step of the initial tapered reduction announced in the January 14th

notice, which was to

reduce hours to 12 per day on January 25th

. Thus the decision on the internal appeal sustained

the initial step of the tapered reduction, and canceled the subsequent reductions subject to

reassessment in six weeks.

100. Contrary to the decision on the appeal, Healthfirst in fact proceeded with the rapid

taper reduction as proposed in its original notice.

101. The January 27th notice stated that services were not medically necessary because

Mr. Lemieux is not homebound, is alert, and has not been recently hospitalized, because his

family has learned to use the continuous positive airway pressure and other equipment, because

he has no skilled needs, and because the goal is to help the member become independent.

None of these statements describe a change in Mr. Lemieuxs condition or circumstance that

would justify a reduction in his care, because none of them describe anything new.

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102. On February 7, 2104, Mr. Lemieux requested a fair hearing to challenge the

reduction of his services from 24 hour split shift, to 12 hours-per-day.

103. Defendant Proud did not order aid-continuing.

104. As a result, Mr. Lemieuxs home care was not restored to 24 hour split shift care

as it should have been.

105. Mr. Lemieux was referred to NYLAG on April 21, 2014.

106. On April 23, 2014, a NYLAG lawyer called Defendant Proud and inquired why

aid-continuing had not been directed, and was told that it was an error, and that Defendant Proud

had corrected it, and had so informed Healthfirst.

107. On April 25, 2014, Healthfirst reauthorized Mr. Lemieux for home care, but only

for 24 hour-per-day sleep in not 24 hour-per-day split-shift care, as required by the aid -

continuing order.

108. Moreover, that authorization was only to provide services for ten days -- from

April 25, 2014 through May 5, 2014.

109. Between April 25 and May 5, Mr. Lemieux received 24 hour sleep-in care.

110. On May 6, 2014, Mr. Lemieuxs home care was discontinued in its entirety

despite the aid-continuing directive issued by Defendant Proud and despite Healthfirsts own

rescission of its original determination to discontinue services altogether.

111. On that day, because Mr. Lemieuxs aunt had to work, he was left alone with only

his uncle and his uncles home attendant to care for him, even though she was not supposed to be

caring for Mr. Lemieux.

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112. On May 7, 2014, as a result of advocacy by NYLAG, Healthfirst authorized care

to begin again, in the amount of 24 hour-per-day, sleep in care. This time the authorization ran

through July 5, 2104.

113. On May 19, 2014, as a result of advocacy by NYLAG, Healthfirst increased the

authorization to 24 hour continuous care, still only through July 5, 2014.

114. Healthfirst subsequently reauthorized 24 hour split-shift care through September,

2014.

115. The fair hearing is still pending.

Named Plaintiff Anibal Santiago

116. Anibal Santiago is a 65 year-old man who lives alone in Manhattan and receives

Medicaid.

117. Since he does not have Medicare, he has been enrolled in a mainstream Medicaid

managed care plan, Healthfirst, since 2007.

118. He suffers from numerous medical conditions including diabetes, high blood

pressure, and schizoaffective disorder. Because of his medical condition he needs assistance

with many of his daily activities including all outdoor mobility, housekeeping, cuing and

prompting regarding personal hygiene, and meal preparation.

119. In particular Mr. Santiago needs assistance from another person with preparing

his diabetic diet meals which he is unable to prepare for himself. This involves shopping,

preparing the meals, and managing his portions of both food and liquids.

120. Prior to April, 2014, for about 3 years, Mr. Santiago received home care services

in the amount of 12 hours per day, 7 days per week, as authorized by Healthfirst.

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121. On April 2, 2014, Healthfirst sent a notice to Mr. Santiago purporting to deny his

so-called request for personal care services 12 hours per day, 7 days per week, and

approving him to receive personal care services 4 hours per day, 7 days per week.

122. Although the April 2nd notice is effectively a reduction notice, it is not identified

as such, and does not use the word reduction; rather it states that services are approved at the

decreased amount. It does not give any reason why services were being reduced, nor any

explanation of how a person whom they had previously determined needed 12 hours per day, 7

days per week, could now be cared for with only 4 hours per day, 7 days per week.

123. There has been no change in Mr. Santiagos condition.

124. The two-page notice Mr. Santiago received explains how to request an internal

appeal but provides no information about requesting a fair hearing or the right to aid continuing.

125. On April 7, 2014, Healthfirst sent an additional notice to Mr. Santiago with the

heading MANAGED CARE ACTION TAKEN TERMINATION OR REDUCTION IN

BENEFIT.

126. While this notice does more clearly purport to be a reduction notice, it is very

difficult to read because it is half in English and half in Spanish, and alternates between the two

languages in the middle of sentences. For example, the first sentence of the text reads This is to

inform you/La siguente es para informarie que su Personal Care Assistance Level II, 12 hours 7

days a week will be/sera Reduced to/Reducido 4 hours 7 days a week effective/a partir de

05/03/2014 because/debido a: the request for continued Personal Care Assistance services are

approved at the decreased rate of 4 hours/day 7 days/week.

127. This notice states as the reason why his services were being reduced that the

medical documents . . . show you are independent with your personal care. The personal care

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assistance benefit is intended to assist members who cannot accomplish the activities of daily

living by themselves; it is not intended solely as supervision. The notice fails to state any

change in his medical condition or circumstances that might explain how a person previously

determined to need 12 hours per day, 7 days per week for over three years could now be cared

for with only 4 hours per day, 7 days per week.

128. There has not been any change in Mr. Santiagos condition or circumstances. His

needs have been and continue to be far beyond mere supervision.

129. On or about April 22, 2014, Mr. Santiago filed an internal appeal to review the

determination to reduce his personal care services.

130. On May 2, 2014, Healthfirst sent a letter and notice to Mr. Santiago. Both inform

him that Healthfirst has reviewed his appeal, and determined to approve him to receive personal

care services 8 hours per day, 7 days per week.

131. Neither the letter nor the notice state an effective date for the reduction to 8 hours

per day, but the notice states that the date span is May 3, 2014 through August 20, 2014,

therefore the de facto effective day of the notice is 1 day after the date it was mailed.

132. On May 3, 2014, Mr. Santiagos care was reduced from 12 hours per day to 8

hours per day.

133. On May 12, 2014, Mr. Santiago requested a fair hearing to challenge the

reduction of his personal care service. Defendant Proud processed the request but did not order

aid-continuing. As a result, Mr. Santiagos care remained reduced for over a month.

134. On June 9, 2014, a NYLAG attorney called Defendant Proud and questioned why

aid-continuing had not been ordered. As a result of that phone call, Defendant Proud ordered

aid-continuing and Healthfirst has complied with that order.

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135. Mr. Santiagos fair hearing is scheduled for July 21, 2014.

FACTS CONCERNING THE CLASS

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136. Medicaid recipients who need assistance with the activities of daily living who,

for example, cannot perform essential life activities such as bathing, dressing, walking, toileting,

or eating on their own depend on Medicaid-funded care from an aide or nurse in order to

remain safely in their own homes, rather than having to permanently reside in a Medicaid-funded

nursing home or other institution.

137. Historically, in New York State, most Medicaid-funded home care services were

authorized by the local Departments of Social Services, such as the Human Resources

Administration (HRA) in New York City.

138. Currently, the New York State Medicaid program provides almost all Medicaid-

funded home care services through some type of managed care, either a Mainstream Managed

Care (MMC) plan or a Managed Long Term Care plan (MLTC), collectively Managed Care

Organizations (MCOs).

139. After New York State received its 1115 waiver, participation in MLTC was first

made mandatory in New York City in September 2012, and Long Island and Westchester

followed in the next six months. Six more counties were added in 2013, at least eight more

counties were added so far in 2014, and the rest of the state is scheduled to be phased in

throughout 2014.

140. Individuals in mandatory counties who are eligible for both Medicare and

Medicaid (dually eligible), over 21 years old, and in need of more than 120 days of home care

services must enroll in an MLTC in order to receive Medicaid-funded home care services. In

counties that are not yet mandatory, Medicaid recipients with Medicare continue to access home

care services through their local social services districts. Those who do not have Medicare must

access home care through a mainstream MMC plan.

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141. As of April 2014, there were 115,674 individuals in New York State enrolled in

MLTC plans. In New York City, enrollment in MLTCs increased to 103,697 individuals in

April 2014 as compared to 45,634 in April 2012.

142. A smaller statewide group of about 10,000 Medicaid-only recipients receive home

care services through a mainstream MMC plan.

143. Members of the class, all of whom need home care services in order to live safely

in the community, are very vulnerable. By definition, they cannot manage alone. They have

multiple chronic conditions many of which are degenerative - and do not improve - such as

Multiple Sclerosis and Alzheimers disease, and require long-term care services for basic

activities of daily living including ambulation, toileting, and cooking.

144. Pursuant to his obligations under the Medicaid Act and its implementing

regulations, as well as the federal 1115 waiver, Defendant Zucker included in his contracts with

MLTCs and MMCs the obligation to comply with the Medicaid Act and its implementing

regulations and state law and regulations in their processes to assess, authorize, deny, reassess,

reauthorize, increase, reduce, terminate and discontinue Medicaid-funded home care services for

Medicaid recipients enrolled in each plan.

145. Defendant Zucker routinely fails to provide timely and adequate notices and

opportunities for Fair Hearings to members of the plaintiff class and Defendants Zucker and

Proud routinely fail to authorize and provide aid-continuing.

146. MCO members have the right to request an internal appeal in which the plan

will review the correctness of its own determination. Under defendant Zuckers policy, MMC

members have the option of requesting an internal appeal or proceeding directly to a fair hearing.

If they initially request an internal appeal and lose, they may still request a fair hearing. The

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internal appeal does not toll the MMC members time frame to request a fair hearing. An MMC

member who opts to request an internal appeal and loses can then be denied a fair hearing if the

hearing request was filed more than sixty days after the plans initial adverse determination.

147. Defendant Zucker routinely fails to provide notices that adequately explain that

requesting an internal appeal will not toll the time period to request a fair hearing.

148. Unlike mainstream MMC members MLTC members must request an internal

appeal as a pre-condition of requesting a fair hearing.

149. Defendant Zucker routinely fails to provide notices that adequately explain the

exhaustion requirement.

150. When an MLTC or MMC plan denies an internal appeal, this triggers the need to

issue a second notice. This notice must include, among other requirements, an explanation of

the outcome of the internal appeal, the reasons for the decision, and the recipients right to

request a Fair Hearing and to receive aid continuing until a DAFH is issued from an

Administrative Law Judge. This notice, like the initial notice, must be timely it must be

provided in advance of the proposed reduction, to afford the opportunity to request a fair hearing

with aid continuing. Defendant Zucker routinely fails to provide or ensure timely notice after

an internal appeal.

151. Defendants Zucker and Proud, have a custom and practice of routinely failing to

take one or more and sometimes all of the steps required by law and regulation when denying

requests for new services, increases of current home care services or threatening reductions or

terminations of such services, and in the administration of the fair hearings challenging such

determinations.

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152. Defendant Zucker has a custom and practice of routinely failing to issue timely

and adequate notice, or any written notice at all, before reducing or terminating home care

services. Many class members only receive a phone call, or are told by a nurse or care manager

that services are being reduced or terminated. Without notice many recipients do not even know

they have the right to appeal, let alone navigate the applicable appeals procedure to maintain

critical home health services.

153. When some written notice is provided, Defendant Zucker has a custom and

practice of routinely failing to provide such notice at least 10 days prior to the date of the

intended action as required by law and regulation for reductions or terminations of home care

services.

154. When some written notice is provided, Defendant Zucker has a custom and

practice of routinely failing to provide notice of adverse actions that is adequate. These notices

frequently do not include an appropriate explanation of the legal and factual basis justifying the

denial, reduction, discontinuance of services, an explanation of their rights to appeal and to aid

continuing, an explanation of internal appeals and how requesting them or failing to request them

impacts the right to a fair hearing.

155. Defendant Zucker has a custom and practice of routinely failing to issue timely

and adequate notices of reductions, terminations, or discontinuances of home care services with

aid continuing rights. Instead of notices giving advance warning of a reduction or termination

in services, MCO notices routinely mischaracterize the plans actions as a mere authorization

for services, or as denial of requests for an increase in services. This distinction is critical, as

plaintiffs whose services are reduced or terminated have the right to request an appeal with aid

continuing, while an individual appealing a denial of a new or increased service or of a mere

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authorization has no right to aid continuing. Moreover, this mischaracterization unlawfully

shifts the burden of proof in the appeal to the recipient, when the plan has the burden of proving

that a reduction or termination is justified.

156. Defendant Zucker has a custom and practice of arbitrarily and capriciously

reducing or terminating the home care services of Medicaid recipients whose medical condition

is the same or worse than it was in the previous authorization.

FIRST CAUSE OF ACTION

1. Defendant Zuckers custom and practice of threatening to reduce or terminate,

and of actually denying, reducing, or terminating home care services without first providing

timely and adequate notice of such adverse actions and an opportunity for a fair hearing, violates

Plaintiffs rights under 42 U.S.C. 1396a(a)(3); 42 C.F.R. 438.10; 438.210(b),(c), and (d),

438.400-410; 431.211;; New York Social Services Law 22(12); 18 N.Y.C.R.R

505.14(b)(5)(v)(c)5, 358-2-2, 358-2.23, and 358-3.3; and the Due Process clauses of the 14th

Amendment to the United States Constitution, U.S. Const. Amend. XIV, 1, and of the New

York State Constitution, N.Y. Const. Art. I, 6.

SECOND CAUSE OF ACTION

2. Defendant Prouds custom and practice of failing to authorize and State

Defendantss custom and practice of failing to provide aid-continuing where required violates

Plaintiffs rights under 42 U.S.C. 1396a(a)(3); 42 C.F.R. 438.420, 438.424 ; New York

Social Services Law 365-a(8); New York Social Services Law 22(12); 18 N.Y.C.R.R 358-

3.6; and the Due Process clauses of the 14th Amendment to the United States Constitution, U.S.

Const. Amend. XIV, 1, and of the New York State Constitution, N.Y. Const. Art. I, 6.

THIRD CAUSE OF ACTION

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3. Defendant Zuckers custom and practice, of reducing and terminating home care

services when there has been no change in the recipients condition or circumstances that would

justify the reduction or termination, violates Plaintiffs rights under the Due Process Clause of the

14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, 1, 42 CFR

438.210(a), and as specifically set forth in Mayer v. Wing, 922 F.Supp. 902, and State Defendants

own regulations at 18. N.Y.C.R.R. 505.14(b)(5)(v)(c).

FOURTH CAUSE OF ACTION

4. Defendants custom and practice of denying, reducing and terminating Plaintiffs

home care services, by sending inadequate and untimely notices, or no notices at all, and of

failing to provide an opportunity for a fair hearing, threatens to result in the unnecessary

institutionalization of Plaintiffs, in violation of their right to receive services in the most

integrated setting appropriate to their needs as guaranteed by Title II of the Americans with

Disabilities Act, 42 U.S.C. 12131, et seq.; 28 C.F.R. 35.130(d); Section 504 of the

Rehabilitation Act, 29 U.S.C. 794; 28 C.F.R. 41.51(d); and 45 C.F.R. 84.4(b)(2)

WHEREFORE, it is respectfully requested that this Court enter judgment:

1. Certifying a class pursuant to Fed. R. Civ. P. Rule 23(a) and (b)(2), defined as:

All current and future Medicaid recipients in New York State who receive home care services

through Medicaid Managed Care Organizations and who have suffered or will suffer threatened

or actual denials, reductions, or terminations of their home care services without timely and

adequate notice, and / or without any change in their condition or circumstances which would

justify a reduction or termination, and/or without aid-continuing benefits pending internal

appeals and the issuance of Decisions After Fair Hearings;

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2. Declaring that Defendant Zuckers custom and practice of threatening to reduce

or terminate, and of actually denying, reducing, or terminating home health services without first

providing timely and adequate notice of such adverse actions and an opportunity for a fair

hearing, violates Plaintiffs rights under 42 U.S.C. 1396a(a)(3); 42 C.F.R. 438.10;

438.210(b),(c), and (d), 438.400-410; 431.211; New York Social Services Law 22(12); 18

N.Y.C.R.R 505.14)(5)(v)(c)and 358-2-2, 358-2.23, and 358-3.3; and the Due Process clauses

of the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, 1, and of

the New York State Constitution, N.Y. Const. Art. I, 6;

3. Declaring that Defendants custom and practice of failing to authorize and

Defendants custom and practice of failing to provide aid-continuing where required, violates

Plaintiffs rights under 42 U.S.C. 1396a(a)(3); 42 C.F.R. 438.420, 438.424 ; New York

Social Services Law 365-a(8); New York Social Services Law 22(12); 18 N.Y.C.R.R 358-

3.6; and the Due Process clauses of the 14th Amendment to the United States Constitution, U.S.

Const. Amend. XIV, 1, and of the New York State Constitution, N.Y. Const. Art. I, 6;

4. Declaring that Defendant Zukers custom and practice of reducing and terminating

home care services when there has been no change in the recipients condition or circumstances that

would justify the reduction or termination, violates Plaintiffs rights under the Due Process Clause of

the 14th Amendment to the United States Constitution, U.S. Const. Amend. XIV, 1, 42 CFR

438.210(a), and as specifically set forth in Mayer v. Wing, and State Defendants own regulations at

18. N.Y.C.R.R. 505.14 (b)(5)(v)(c);

5. Declaring that Defendants custom and practice of denying, reducing and

terminating Plaintiffs home care services, by sending inadequate and untimely notices, or no

notices at all, and of failing to provide an opportunity for a fair hearing, threatens to result in the

unnecessary institutionalization of Plaintiffs, in violation of their right to receive services in the

34

most integrated setting appropriate to their needs as guaranteed by Title II of the Americans with

Disabilities Act, 42 U.S.C. 12131, et seq.; 28 C.F.R. 35.130 (d); Section 504 of the

Rehabilitation Act, 29 U.S.C. 794; 28 C.F.R. 41.51( (d); and 45 C.F.R. 84.4(b)(2)

6. Enjoining Defendants to immediately reinstate home care services in the amount

of 10 hours per day as aid continuing for plaintiff Janie TAYLOR;

7. Enjoining Defendant Zucker from threatening to deny, reduce, or terminate, or

actually denying, reducing or terminating Plaintiffs home care services without sending a timely

and adequate notice that clearly identifies the proposed action, correctly characterizes the nature

of the action being taken, states the reason for the action, and states the right to and process for

requesting an internal appeal, a fair hearing, and aid-continuing;

8. Enjoining Defendants to authorize and provide aid-continuing when required.,

9. Enjoining Defendant Zucker from reducing and terminating home care services

when there has been no change in the recipients condition or circumstances that would justify the

reduction or termination;

10. Awarding reasonable attorneys fees, as provided by 42 U.S.C. 1988(b) and 42

U.S.C. 12102(2).

11. Awarding costs and disbursements; and

12. Granting such other and further relief as this Court deems just and proper.

Dated: July 15, 2014

New York, New York

NEW YORK LEGAL ASSISTANCE GROUP

Yisroel Schulman, President and Attorney in Charge

By:

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____________________________

Jane Greengold Stevens, of counsel

Sabrina Tavi, of counsel

Benjamin Taylor, of counsel

7 Hanover Square, 7th Floor

New York, NY 10004

(212) 613-5000