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Disabled Elderly Sue NY Over Budget Cuts

BROOKLYN (CN) - This month's massive cuts to Medicaid may put hundreds of elderly New Yorkers "in grave danger of being institutionalized against their will," the old people say in a federal class action. The cuts came in New York's new budget, which took effect April 1.

The New York State Budget Bill imposed "ceiling limitations" that prevent home care agencies from being fully reimbursed for high-hour cases, the complaint states.

Lead plaintiff Cecilia Johnson, filing on behalf of her 85-year-old mother, Ena Johnson, says the change has caused home care agencies to reduce services without adequate notice or a hearing. Some providers now refuse to comply with Aid Continuing orders, Johnson says.

She says her mother, who has received 24-hour care for several years, had her services cut three days after the bill took effect.

"Ms. Johnson has had many strokes during the past 10 years. As a result, she is now bed-bound, non-verbal and suffers from numerous severe ailments including severe muscle weakness, incontinence, bed sores, and dementia ...

"For the past several years, Ms. Johnson has received CHHA [Certified Home Health Agencies] services 24 hours per day, in split-shift care, 7 days per week, provided by Personal-Touch," the complaint states.

Before the new budget was implemented, she received home care twice, after two hospitalizations, but that changed almost immediately when the new budget took effect.

"On April 4, 2011, Ms. Johnson was admitted to Long Island College Hospital for the third time, and it was expected that she would be ready for discharge in 2 to 3 days.

"On April 8, 2011, Ms. Johnson was ready for discharge and needed Personal-Touch to reinstate her split-shift care so that she could return home. Ms. Johnson's hospital social worker contacted Personal-Touch and requested that her split-shift care be reinstated. The social worker and Ms. Johnson's daughter, Cecelia, were informed by Personal-Touch that they planned to reduce Ms. Johnson's care to 12 hours per day, 7 days per week.

"Ms. Johnson received no prior notice of the threatened reduction of her split-shift care CHHA services. She was not informed of her right to a Fair Hearing," the complaint states.

A health complication forced Ena Johnson to stay in the hospital until April 14, but she was not discharged as scheduled because Personal-Touch had reduced her services.

"To date, Ms. Johnson has not received Aid Continuing benefits," the complaint states.

Johnson says this may force her into a nursing home.

"Ms. Johnson does not need to go to a nursing facility, nor she want to be placed in a nursing facility, because she can and is entitled to live safely at home, in an integrated setting, with the assistance of split-shift care CHHA care," the complaint states.

The Johnsons say that Nirav R. Shah, the Commissioner of the New York State Department of Health, recognizes that the denial of care is illegal, and has not done enough to correct it.

"Defendant Shah is clearly aware of this problem, and on April 8, 2011 issued a 'Dear Administrator' letter to CHHAs reminding them of their responsibility to comply with federal and state laws.

"Because the April 8, 2011 letter did not eliminate the practices described herein, Defendant Shah issued a second 'Dear Administrator' letter on April 15, 2011, stating in even stronger terms the obligations of CHHAs to comply with procedural requirements of the law.

"These 'Dear Administrator' letters have not ended the pattern and practice of erroneous and illegal reductions or terminations," the complaint states.

Also sued are Elizabeth R. Berlin, executive deputy commissioner of the New York State Office of Temporary and Disability Assistance; Robert Doar, commissioner of the New York City Human Resources Administration; and Personal-Touch Home Care.

The Johnsons seek declaration that Ena's due-process rights have been infringed and an injunction preventing the state from reducing home care for patients whose needs have not changed.

She is represented by Yisroel Schulman of the New York Legal Assistance Group.

This is far from the first class action against a state that tried to address its budget problems in this manner. Most such complaints say the cuts are not only cruel but counterproductive, as institutionalized care will end up costing the state more money than in-home care.

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