Kostok v. Thomas

105 F.3d 65, 1997 U.S. App. LEXIS 652, 1997 WL 31586
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 15, 1997
DocketNo. 408, Docket 96-7450
StatusPublished
Cited by27 cases

This text of 105 F.3d 65 (Kostok v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kostok v. Thomas, 105 F.3d 65, 1997 U.S. App. LEXIS 652, 1997 WL 31586 (2d Cir. 1997).

Opinion

JACOBS, Circuit Judge:

Plaintiff-Appellant Alexander Kostok is a resident in a nursing home in Connecticut and is entitled to state Medicaid benefits. The United States District Court for the District of Connecticut (Covello, J.) dismissed his claim for injunctive relief to compel the State of Connecticut to furnish him a new wheelchair that is customized to his physical needs and motorized for locomotion and adjustment. After oral argument on the appeal from that dismissal, the defendant Commissioner of the Connecticut Department of Social Services (“the Commissioner”) advised this Court that subsequent arrangements to provide the motorized wheelchair have rendered the ease moot. For the reasons stated here, we conclude that this appeal is not moot and that the district court’s ruling under the Eleventh Amendment cannot be sustained as to Kostok’s federal and constitutional claims — the only ground of appeal. We remand for any further proceedings, because, while it is possible that the wheelchair will be supplied without further intervention by the courts, the oversight of the district court may be needed and any motion for attorney’s fees will require consideration and decision.

BACKGROUND

Kostok has lived in a skilled nursing facility in Connecticut for about 14 years. He has multiple sclerosis with quadriplegia and spas-ticity, and requires 24-hour care and assistance in his daily activities. He cannot move his legs, has little or no trunk control, and has minimal movement of his left hand. With the left hand, he operates a 15-year old power wheelchair that he brought with him to the nursing home.

Over the last fifteen years, Kostok has gained weight (he is about 6'5" and 300 lbs.), lost the use of his right hand, lost most of the strength in his left hand, and become subject to severe muscle spasms. Two assessments of his wheelchair in the last two years indicate that its safety and stability are questionable, and that it no longer meets Kostok’s physical and medical needs. Because the wheelchair does not support his back or legs properly, Kostok cannot use it for more than three or four hours per day.

Under the relevant state rules, a vendor of durable medical supplies must look to the nursing home for payment unless prior authorization from the Department of Social Services for direct payment has been secured. In this case, the nursing home refused to purchase a new wheelchair for Kos-tok, citing the cost as well as the nursing home’s belief that the wheelchair would be deemed specialized equipment for which the home would not receive reimbursement un[67]*67der the Medicaid per diem reimbursement rate. On January 5,1994, a request for prior authorization for payment of a new custom motorized wheelchair was submitted to the Commissioner on Kostok’s behalf. The request was accompanied by a prescription form signed by Kostok’s longtime treating physician, as well as by an orthopedic surgeon, an occupational therapist, and a registered nurse. The Commissioner denied the request on the ground that “Connecticut Medicaid does, not purchase power wheelchairs for recipients who live in nursing facilities.” This denial .was based on Medical Services Policy 189 (“Policy 189”), which states that custom wheelchairs that are motorized are not considered medically necessary for patients in skilled nursing facilities. Kostok appealed through the Commissioner’s administrative hearing process. The hearing officer found that Kostok had a medical need for a customized wheelchair and a psychosocial need for one that is motorized. (At oral argument, Kostok’s counsel explained that motorization is necessary not only for locomotion, but also to configure the angle of the wheelchair in order to relieve pressure in Kostok’s legs.) The hearing officer then ordered the Commissioner to authorize payment for a custom wheelchair, but not the power component, which was found to be the responsibility of the nursing home. This left Kostok with' sole recourse to the nursing home for the power component, equipment that the nursing home had already — and repeatedly — refused to purchase. The Commissioner took no further action.

On November 10,1994, Kostok filed a complaint in the United States District Court for the District of Connecticut, seeking an injunction against the Commissioner’s continued withholding of authorization for the wheelchair and a declaration that Policy . 189 violates federal law. The prayer for relief did not seek money damages. Kostok filed an application for a preliminary injunction on April 25, 1995. On August 25, the Commissioner filed a motion to dismiss combined with his opposition to a preliminary injunction. On March 19, 1996, the district court granted the Commissioner’s motion to dismiss.

In its ruling,- the district court held that the Eleventh Amendment bars any claim for damages against state officials in their official capacity. The court recognized that federal courts are not barred from granting prospective injunctive relief against state officials on the basis of federal claims, but nevertheless dismissed Kostok’s claim based on two jurisdictional rationales. First, the district court explained that Kostok’s complaint alleged a violation of state law — ie., that the refusal to pay for a motorized wheelchair violated a state regulation — rather than federal law, and was therefore barred because the Eleventh Amendment prohibits suits against state officials on the basis of state claims. Second, the district court held that the complaint sought retroactive relief, and was therefore barred under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Although Kostok’s complaint stated that the wheelchair is a “medically necessary” service under the federal Medicaid Act, the court concluded that the complaint actually sought “to recoup the monetary loss of a past breach of a legal duty” by the Commissioner, which would require the payment of money from the state treasury. The court also dismissed Kostok’s claim for declaratory relief, on the ground that a declaratory judgment would potentially open the door to an action for money damages, a claim that is jurisdictionally barred by the Eleventh Amendment.

This expedited appeal followed.

At oral argument (although not in the state’s fifty-page brief), counsel for the Commissioner repeatedly expressed the state’s perfect willingness to pay for the wheelchair through the nursing facility rate reimbursement system.' Eight times, counsel declared that the state was willing to reimburse the nursing facility for the wheelchair, but that the musing home simply refused to buy the chair. There is some evidence that the indirect payment mechanism may have inhibited the nursing home from buying the wheelchair and seeking reimbursement, particularly in light of Policy 189, which runs counter to the Commissioner’s willingness to pay in this case.

[68]*68After oral argument, the state filed a motion to dismiss the appeal as moot on the ground that the nursing home (having received satisfactory assurances from the state) has at last agreed to advance the cost of the power component of the wheelchair pending reimbursement by the state. The state asks us to dismiss the appeal as moot, without disturbing the district court’s judgment. Kostok does not. dispute the factual premise of the state’s motion, but he opposes the dismissal of the appeal for mootness. We consider the potential mootness a threshold issue, to be reached even before we consider the Eleventh Amendment jurisdictional question.

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Bluebook (online)
105 F.3d 65, 1997 U.S. App. LEXIS 652, 1997 WL 31586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kostok-v-thomas-ca2-1997.