Opinion
No. 3041–10.
2010-12-8
In the Matter of the Application of DMN MANAGEMENT SERVICES, LLC, d/b/a Capital Living and Rehabilitation Centres; Schenectady Nursing and Rehabilitation Center, LLC d/b/a The Avenue Nursing and Rehabilitation Centre; Troy Nursing and Rehabilitation Center, LLC, d/b/a The Springs Nursing and Rehabilitation Centre; Minoa Nursing and Rehabilitation Center, LLC d/b/a The Crossings Nursing and Rehabilitation Centre; Carthage Nursing and Rehabilitation Center, LLC d/b/a Country Manor Nursing and Rehabilitation Centre; Glens Falls Nursing and Rehabilitation Center, LLC d/b/a The Stanton Nursing and Rehabilitation Centre; Granville Nursing and Rehabilitation Center, LLC d/b/a The Orchard Nursing and Rehabilitation Centre; and Jansen Road Nursing and Rehabilitation Centre d/b/a Mountain View Nursing and Rehabilitation Centre, Petitioners, v. Richard DAINES, M.D., as Commissioner of Health of the State of New York and Robert L. Megna, as Director of the Division of the Budget of the State of New York, Respondents.
O'Connell and Aronowitz, Jane Bello Burke, Esq., of counsel, Albany, Attorneys for Petitioners. Andrew M. Cuomo, Attorney General of the State of New York, Shoshanah V. Bewlay, Esq., of counsel, Albany, Attorneys for Respondents.
O'Connell and Aronowitz, Jane Bello Burke, Esq., of counsel, Albany, Attorneys for Petitioners. Andrew M. Cuomo, Attorney General of the State of New York, Shoshanah V. Bewlay, Esq., of counsel, Albany, Attorneys for Respondents.
HENRY F. ZWACK, J.
In this CPLR Article 78 proceeding, petitioners seek a judgment directing respondents to calculate and pay “disadvantaged facility” funding and “gross receipts assessment reconciliation” related to Medicaid, and also annul and recalculate certain Medicaid rate determinations. Respondents oppose the petition.
Petitioners own and operate residential health care facilities, also known as nursing homes. Petitioner facilities participate in the Medicaid program, for which rates are determined by the Commissioner of Health and approved by the Director of Budget.
In this proceeding, petitioners first argue that “ “disadvantaged facility” funding has not been paid to petitioner The Avenue Nursing and Rehabilitation Centre (“ “The Avenue”) for calendar year 2005, and that petitioner's 2005 appeal regarding the amount allotted for 2004 was never addressed.
In response, respondents note that the disadvantaged facility funding amount for said petitioner for 2005will be calculated by respondent Department of Health by April 1, 2011, and then subject to Division of Budget approval. Regarding the delay, respondent Department of Health cites to the fact that the rate setting methodology is complex and that four other nursing homes have appeals that need to be decided before the amount for petitioner can be determined. Respondents also admit in their answer that petitioner's 2005 appeal of the 2004 calculation has not been responded to other than to acknowledge it in a sign in appeal number. Respondents do not otherwise address petitioner's 2005 appeal in their responding papers.
The Court notes that while a statute may not provide a specific time frame for the disadvantaged facility funding to be calculated, the delay of approximately five years for a distribution of funding to a nursing home that was acknowledged to be among the most financially disadvantaged is simply inexcusable. It is well established that in a situation where a statute or regulation does not provide a specific time frame for a specific act to occur, a reasonable amount of time is implied ( see, e.g., Blossom View Nursing Home v. Novello, 4 NY3d 581 [2005];Signature Health Center, LLC v. New York State Department of Health, 2010 WL 3420404 [Sup Ct Nassau Co]; see generally Spiegelberg v. Gomez, 44 N.Y.2d 920, 921 [1978] ). Under the circumstances, and noting the purpose of the funding, the Court finds that neither the law nor basic logic could arrive at the conclusion that five years is a reasonable amount of time for disadvantaged facility funding to be calculated, even considering the complex methodology and staff constraints. Additionally, respondent Department of Health references that petitioner The Avenue, based upon 2009 information, no longer appears to be financially distressed and therefore not eligible for priority processing. The Court finds this statement to defy logic yet again, when clearly petitioner The Avenue admittedly qualified for this funding intended for financially disadvantaged facilities for calendar years 2004, 2005 and 2006. Respondent Department of Health should not be permitted to now de-prioritize calculation of the 2005 disadvantaged facility funding amount for petitioner The Avenue and benefit from its own delay in processing the calculation. The Court also notes that the present proceeding was commenced in May 2010 and was returnable in October 2010 and respondents have had the benefit of this additional time.
Based upon the foregoing, regarding disadvantaged facility funding, the Court finds that respondent Commissioner of Health shall calculate the disadvantaged facility funding for petitioner The Avenue for 2005, and respond to said petitioner's 2005 appeal of the 2004 calculation, within 60 days from the date of this Decision, Order and Judgment. There has been no showing of unreasonable delay on the part of the Division of Budget and therefore the Court declines to order the Division of Budget to act within a certain time frame.
Next, regarding petitioners' claims regarding gross receipts assessment reconciliation from 2008 for all petitioner facilities, and also for 2006 for petitioner The Orchard Nursing and Rehabilitation Centre, the Court notes that respondent Department of Health has indicated that these reconciliations were to be performed by December 1, 2010. To the extent that these reconciliations have not been performed, they shall be performed by respondent Department of Health within 30 days from the date of this Decision, Order and Judgment.
Finally, petitioners challenge the calculation of unimplemented Medicaid reimbursement rates for periods commencing April 1, 2009, May 1, 2009 and January 1, 2010, and for which petitioners filed appeals on January 13, 2010. Respondents argue that the rates for these periods have not been implemented and are preliminary because they have not completed the approval process that involves the United States Centers for Medicare and Medicaid Services and the State Director of Budget. Petitioners argue that they filed appeals because they were told they could by respondent Department of Health, but that later they were informed by the Department of Health that the pending appeals would not be addressed. Respondents argue that nursing homes were informed that rate appeals could be filed from the operating components only of the preliminary “notice” rates and were later informed that rate appeals with respect to the notice rates would be deleted from the Department of Health appeals system because Department of Health determined that appeals could only be filed from published and implemented rates.
The Court concurs with respondents that appeals from provisional rates are premature and, further, even if petitioners' January 13, 2010 appeals were of final rates, the Department of Health would have until January 13, 2011 to process the appeals (10 N.Y.C. R.R. 86–2.14[b] ). While petitioner's reply papers raise the issue of delay in the issuance of final rates, this was not an issue raised in the petition and will therefore not be addressed herein. Based upon the foregoing, petitioners' claims regarding appeals of the provisional rates are denied.
Accordingly, it is
ORDERED, that the petition is granted in part and denied in part, as set forth above.
This constitutes the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is returned to the attorneys for the petitioners. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.