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


2
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


8
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/.


9
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


10
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


11
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


12
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 .


13
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


14
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


15
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.


16
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 .


17
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 1
st
. 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.


18
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 2
nd
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.


19
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 25
th
, with the reduction to 12 hours/day,
then on February 23rd to 8 hours, then on March 24
th
to 5 hours, then discontinuance on April
22, 2014.


20
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 25
th
, 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.


21
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 27
th
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 27
th
notice purported to
reduce services retroactively to 12 hours-per-day effective January 24
th
. In effect, this affirmed
the first step of the initial tapered reduction announced in the January 14
th
notice, which was to
reduce hours to 12 per day on January 25
th
. 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 27
th
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.


22
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.


23
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.


24
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 2
nd
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


25
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.


26
135. Mr. Santiagos fair hearing is scheduled for July 21, 2014.
FACTS CONCERNING THE CLASS


27
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.


28
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


29
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.


30
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


31
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


32
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;


33
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:



35
____________________________

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