NYLAG Files Suit Against Illegal Termination of Home Care
Updated on April 1, 2012, originally posted on June 1, 2011.
Josef, a 90 year-old Holocaust survivor who lived alone in Brooklyn, suffered from muscle weakness and shortness of breath, leading to difficulty walking and getting up and down from a chair or bed. For two years, he received 12 hours of Medicaid-funded home health care per day. Suddenly, however, and without notification, his provider terminated his care despite the fact that his medical conditions had not changed. In the spring of 2011, similar cases in which home care for elderly and disabled individuals had been illegally reduced or terminated emerged in large numbers. NYLAG received well over 100 calls from clients facing these issues.
The 2011-2012 New York State Budget Bill, effective April 1, 2011, changed the way the State calculates payment to providers of Medicaid-funded certified home health care, placing an annual cap on the amount providers can receive for providing such care. As a result, many Certified Home Health Agencies (CHHAs) that provide these services began illegally reducing and terminating care, leaving poor elderly and disabled patients without critical assistance and in imminent danger of being sent to nursing homes. “Providers of Medicaid-funded CHHA services are putting their own fears about payment ahead of their legal obligations to their clients,” explained Jane Greengold Stevens, Director of NYLAG’s Special Litigation Unit (SLU). “CHHAs cannot be allowed to ignore the constitutional and statutory rights of the disabled and elderly in a scramble to protect themselves financially.”
In 2011, NYLAG filed two cases, Johnson, et al. v Shah, et al., against Personal-Touch Home Care, Inc., Americare Certified Special Services, Inc., and Empire State Home Care Service, Inc., and Spitzer, et al v. Shah, against Prime Home Health Services, LLC, VIP Health Services, and Excellent Home Care Services, for illegally reducing and terminating home health care without adequate notice to recipients and without providing the opportunity for a Fair Hearing or Aid Continuing benefits required by federal law. The cases allege that the practices of these CHHAs have violated the Medicaid Act and the Due Process Clause of the 14th Amendment to the United States Constitution. Plaintiffs further allege that these illegal reductions and terminations violate the Americans with Disabilities Act because they force CHHA patients into nursing homes, even though these individuals could remain safely in their homes if provided with appropriate care. The suits charge government Defendants, the New York State Department of Health and the New York State Office of Temporary and Disability Assistance, for failing to prevent these illegal terminations, and challenge state regulations denying due process rights to individuals when cuts are characterized as “pursuant to doctor’s orders.”
NYLAG settled a motion for a preliminary injunction with the CHHA defendants. As part of these temporary settlement agreements, the CHHA defendants have agreed to provide notice to patients prior to reducing or terminating their care. “It’s a good start,” said NYLAG attorney Ben Taylor, “but we still have a long way to go.” NYLAG continues to litigate the case against both the CHHA and State defendants, and in addition, is faced with the monumental task of representing many of these clients at administrative fair hearings to contest their home care reductions.