     14-1367-cv
     Backer v. Shah

1                            UNITED STATES COURT OF APPEALS

2                                FOR THE SECOND CIRCUIT

3                                   August Term, 2014

 4
 5   (Argued: October 23, 2014                             Decided: June 3, 2015)
 6
 7                               Docket No.       14-1367-cv
 8
 9   - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
10   MINDY BACKER, by her guardian and next friend Gay Lee Freedman,
11
12               Plaintiff-Appellant,
13
14   FANNIE MAE WILLIAMS, by her guardian and next friend United
15   Guardianship Services, ANNIE L. KELLY, by her guardian and next
16   friend United Guardianship Services, on behalf of themselves and
17   all others similarly situated,
18
19               Plaintiffs,
20
21                    v.
22
23   NIRAV R. SHAH, M.D., M.P.H., in his capacity as the Commissioner
24   of the New York State Department of Health,
25
26             Defendant-Appellee.
27   - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - -
28
29   B e f o r e:          WINTER, WALKER, and CABRANES, Circuit Judges.
30
31         Appeal from a dismissal of a complaint by the United States

32   District Court for the Eastern District of New York (Roslynn R.

33   Mauskopf, Judge), on the alternative grounds that appellant

34   lacked standing to bring, and failed to state, a claim that the

35   Medicaid Act allows her to deduct guardianship fees from her

36   Medicaid-required contributions to nursing home costs.



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1         We hold that appellant has standing but failed to state a

2    valid claim for relief.   We therefore affirm.

 3
 4                             JOSEPH P. GARLAND (Michael Korsinsky, on
 5                             the brief), Korsinsky & Klein, LLP,
 6                             Brooklyn, NY, for Plaintiff-Appellant.
 7
 8                             BETHANY A. DAVIS NOLL, Assistant
 9                             Solicitor General (Barbara D. Underwood,
10                             Solicitor General, Anisha S. Dasgupta,
11                             Deputy Solicitor General, on the brief),
12                             for Eric T. Schneiderman, Attorney
13                             General of the State of New York, New
14                             York, NY, for Defendant-Appellee.
15
16   WINTER, Circuit Judge:
17
18        Mindy Backer appeals from Judge Mauskopf’s Fed. R. Civ. P.

19   12(b)(1) and 12(b)(6) dismissal of her complaint alleging a

20   Section 1983 violation.   In that action, she claimed that the New

21   York State Department of Health (“DOH”) violated the Medicaid

22   Act, 42 U.S.C. § 1396 et seq., when DOH determined that

23   guardianship fees approved by a state court could not be deducted

24   from Backer’s Medicaid-required contributions to her nursing home

25   costs.   We conclude that Backer has standing but has nevertheless

26   failed to state a valid Section 1983 claim.      We therefore affirm.

27                               BACKGROUND

28        Appellant is incapacitated and resides in a nursing home.

29   She receives Medicaid benefits.       Medicaid covers part or all of

30   the costs of nursing home facility services for qualified

31   beneficiaries.   42 U.S.C. § 1396d(a)(4)(A).     Such beneficiaries

32   are required to contribute their available income to the cost of

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1    their institutional care.   See 42 U.S.C. § 1396a(q)(1)(A); see

2    also Wong v. Doar, 571 F.3d 247, 261 (2d Cir. 2009).     When

3    calculating a beneficiary’s “available income” for such expenses,

4    state Medicaid plans are required to deduct a “monthly personal

5    needs allowance.”   42 U.S.C. § 1396a(q)(1)(A).    In New York, that

6    monthly allowance is $50.   18 N.Y.C.R.R. § 360-4.9(a)(1).      The

7    amount of the beneficiary’s income that is left after the $50

8    deduction is styled the “net available monthly income” (“NAMI”)

9    and must be paid to the nursing home.     See Florence Nightingale

10   Nursing Home v. Perales, 782 F.2d 26, 27-28 (2d Cir. 1986); see

11   also 42 U.S.C. § 1396a(q)(1)(A).

12        Under New York law, an incapacitated person is entitled to

13   have a guardian appointed to “act on [her] behalf . . . in

14   providing for personal needs and/or for property management.”

15   N.Y. Mental Hygiene L. § 81.03(a).     Pursuant to that law,

16   appellant’s sister, Gay Lee Freedman, was appointed by the New

17   York Supreme Court to be appellant’s guardian.     The guardianship

18   order stated that the income appellant deposited in her

19   guardianship account would be considered unavailable income for

20   purposes of calculation of her NAMI.     See Matter of Freedman v.

21   Comm'r of State of New York Dep't of Health, 988 N.Y.S.2d 522

22   (Sup. Ct. 2014).    In a separate administrative proceeding,

23   however, DOH determined that appellant could not deduct the

24   guardianship fees and was required to contribute approximately


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1    $1,800 per month in NAMI toward her nursing home costs.    See id.

2    That ruling left her without funds to pay the guardianship fees.

3          Relying on the terms of the guardianship order, Freedman

4    challenged DOH’s decision in state court, but the court upheld

5    DOH’s decision on the ground that it had a rational basis.   Id.

6    The court also noted that New York’s Medicaid regulations did not

7    authorize the deduction of guardianship fees and expenses from

8    the amount required to be contributed toward nursing home costs.

9    Id.

10         While her state court challenge was pending, Freedman filed

11   the present action, including a putative class action, in the

12   Eastern District.   The complaint sought declaratory and

13   injunctive relief pursuant to 42 U.S.C. § 1983, alleging that DOH

14   violated the Medicaid Act, 42 U.S.C. §§ 1396a(a)(19),

15   1396a(q)(1), 1396d, by refusing to deduct guardianship expenses

16   from required Medicaid contributions.   Backer alleged she was

17   “being damaged because of the failure of DOH to permit the

18   deduction of the guardianship fees from her available assets.”

19         DOH successfully moved to dismiss the action.   The district

20   court held that appellant lacked constitutional standing to bring

21   the claim, noting that the complaint “failed to allege any injury

22   ‘fairly traceable’ to defendant’s conduct or the provisions of

23   the Medicaid Act.   Any financial liabilities plaintiff[] [has]

24   incur[red] as a result of not paying the NAMI [were] a result of


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1    an independent economic choice to pay [the] guardian[] instead.”

2    Williams ex rel. United Guardianship Servs. v. Shah, No.

3    12-CV-3953 (RRM) (RML), 2014 WL 1311154, at *5 (E.D.N.Y. Mar. 30,

4    2014).   The court held in the alternative that even if appellant

5    had standing, dismissal was still warranted because she failed to

6    state a claim upon which relief could be granted.    Id. at *6.

7                                  DISCUSSION
8
9         We review de novo a district court’s grant of a motion to

10   dismiss (i) for lack of standing, and (ii) for failure to state a

11   claim upon which relief can be granted.    Rothstein v. UBS AG, 708

12   F.3d 82, 90 (2d Cir. 2013).

13   a)   Standing

14        Before reaching the merits, we must first determine whether

15   appellant had standing to bring her claim.    See Shearson Lehman

16   Hutton, Inc. v. Wagoner, 944 F.2d 114, 117 (2d Cir. 1991).      To

17   have standing, a complainant must show:    (i) a concrete and

18   particularized invasion of a legally protected interest; (ii) a

19   causal connection between the invasion and the alleged injury;

20   and (iii) a likelihood that the injury will be redressed by a

21   favorable decision.   See Lujan v. Defenders of Wildlife, 504 U.S.

22   555, 560-61 (1992).

23        The district court held that appellant lacked standing

24   because her alleged injury was “solely attributable” to her own

25   action in paying her guardian instead of her nursing home costs.


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1    Williams, 2014 WL 1311154, at *3-4 (quoting Engwiller v. Pine

2    Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 246-47 (S.D.N.Y.

3    2000)).   We disagree.

4         DOH determined that appellant was obligated to make NAMI

5    payments for the costs of her nursing home residency before

6    paying the guardianship fees.     This determination caused

7    appellant to have insufficient funds to pay her guardianship

8    obligations.   She was thus exposed to potential liability either

9    for the nursing facility charges or for guardianship services.

10        An injury is “self-inflicted” so as to defeat standing only

11   if “the injury is so completely due to the plaintiff’s own fault

12   as to break the causal chain.”     St. Pierre v. Dyer, 208 F.3d 394,

13   402 (2d Cir. 2000) (quoting 13 Charles A. Wright, Arthur R.

14   Miller, & Edward H. Cooper, Federal Practice and Procedure §

15   3531.5, at 457 (2d ed. 1984)).     To be sure, appellant might have

16   sought relief from the state courts from the guardianship

17   expenses, see N.Y. Mental Hyg. Law § 81.28, but the possibility,

18   or even probability, of obtaining such relief does not eliminate

19   the difficult position appellant was put in by DOH’s ruling.     “So

20   long as the defendants have engaged in conduct that may have

21   contributed to causing the injury, it would be better to

22   recognize standing.”     St. Pierre, 208 F.3d at 402 (internal

23   quotation marks omitted).     Appellant’s injury –- i.e., incurring

24   debts beyond her means to the nursing facility or to her guardian


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1    -- was not “solely” attributable to her own actions, but rather

2    was caused in part by DOH’s determination.

3         Therefore, we hold that appellant had standing to bring the

4    action.

5    b)   Section 1983

6         We now turn to the merits of appellant’s Section 1983 claim.

7    To obtain redress through Section 1983, “a plaintiff must assert

8    the violation of a federal right, not merely a violation of

9    federal law.”   Blessing v. Freestone, 520 U.S. 329, 340 (1997);

10   accord NextG Networks of NY, Inc. v. City of New York, 513 F.3d

11   49, 52 (2d Cir. 2008).    Courts “traditionally look[] at three

12   factors when determining whether a particular statutory provision

13   gives rise to a federal right.”        Blessing, 520 U.S. at 340.

14   “First, Congress must have intended that the provision in

15   question benefit the plaintiff.”        Id.   Second, the statute must

16   not be “so vague and amorphous that its enforcement would strain

17   judicial competence.”    Id. at 340-41 (internal quotation marks

18   omitted).   Finally, “the statute must unambiguously impose a

19   binding obligation on the States.”        Id. at 341.

20        “Section 1983 is only a grant of a right of action; the

21   substantive right giving rise to the action must come from

22   another source.”    Singer v. Fulton Cnty. Sheriff, 63 F.3d 110,

23   119 (2d Cir. 1995).    One alleged source of appellant’s Section

24   1983 claim is 42 U.S.C. § 1396a(a)(19), which requires state



                                        7
1    Medicaid plans to “provide such safeguards as may be necessary to

2    assure that eligibility for care and services under the plan will

3    be determined . . . in a manner consistent with simplicity of

4    administration and the best interests of the recipients.”     We

5    have yet to address the issue, but various other circuits have

6    held that Section 1396a(a)(19) is too vague and amorphous to

7    create a Section 1983 private right of action.   See, e.g.,

8    Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir. 2003)

9    (“[T]he ‘best interests’ provision . . . is insufficiently

10   definite to be justiciable, and in addition cannot be interpreted

11   to create a private right of action[.]”); Harris v. James, 127

12   F.3d 993, 1010 (11th Cir. 1997) (collecting cases); Cook v.

13   Hairston, No. 90-3437, 1991 WL 253302, at *5 (6th Cir. Nov. 26,

14   1991).   We agree with these courts.

15        Section 1396a(a)(19)’s direction to provide safeguards so

16   that the determination of Medicaid eligibility will be consistent

17   with both “simplicity of administration” and “the best interests

18   of . . . recipients” provides no workable standard for judicial

19   decision making.   The terms used are amorphous and in some

20   circumstances inconsistent, requiring an experimental balancing

21   of perceived costs and benefits in a vast number of forseen and

22   unforseen situations.   Recognition of a private right of action

23   to enforce such terms would truly strain judicial competence to a

24   breaking point.



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1         The only other source of a Section 1983 claim relied upon by

2    appellant is 42 U.S.C. § 1396a(q)(1)(A), which requires state

3    Medicaid plans to deduct a “monthly personal needs allowance --

4    (i) which is reasonable in amount for clothing and other personal

5    needs of the individual (or couple) while in an institution, and

6    (ii) which is not less [than $30 for an institutionalized

7    individual].”    Id.; see also id. § 1396a(q)(2).

8         The language of this provision indicates that it is limited

9    to payment for comfort items, such as clothes, that are “not

10   supplied by [an individual’s] institution.”    H.R. Rep. No. 92-231

11   at 150 (1971), reprinted in 1972 U.S.C.C.A.N. 4989, 5136.

12   Indeed, the paltry minimum sum allowed for such comfort items

13   could not have been designed to encompass potentially high

14   guardianship fees.    See Wong, 571 F.3d at 261 (noting that the

15   allowance is “modest” because “in Congress’s judgment, most

16   subsistence needs are met by the institution”) (internal

17   quotation marks omitted).    DOH was thus not under any unambiguous

18   and binding obligation, Blessing, 520 U.S. at 341, to allow

19   deduction of the guardianship fees from appellant’s NAMI.

20        Appellant therefore has not stated a Section 1983 claim

21   based on either Section 1396a(q)(19) or 1396a(q)(1)(A).

22                                CONCLUSION

23        For the reasons stated, we affirm the dismissal pursuant to

24   Rule 12(b)(6).


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