US Court of Appeals Cases

Court of Appeals for the Second Circuit

2021-07

Bellin v. Zucker ( 2021 )

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20-1463
Bellin v. Zucker
In the
United States Court of Appeals
For the Second Circuit
______________
August Term, 2020
(Argued: December 11, 2020      Decided: July 29, 2021)
Docket No. 20-1463
______________
ROSALIND BELLIN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY
SITUATED,
Plaintiff-Appellant,
–v.–
HOWARD A. ZUCKER, M.D., J.D., IN HIS OFFICIAL CAPACITY AS COMMISSIONER,
NEW YORK STATE DEPARTMENT OF HEALTH, ELDERSERVE HEALTH, INC., DBA
RIVERSPRING AT HOME,
Defendants-Appellees.
______________
B e f o r e:
POOLER, WESLEY, and CARNEY, Circuit Judges.
______________
Plaintiff-Appellant Rosalind Bellin brings this

42 U.S.C. § 1983

action on behalf of
herself and a putative class of similarly situated Medicaid beneficiaries. She alleges that
managed long-term care plans (“MLTCs”) that contract with New York State violate
Medicaid beneficiaries’ rights under the Due Process Clause of the Fourteenth
Amendment by denying them the right to appeal initial determinations of the personal
care services hours the MLTCs will provide them if they choose to enroll. Bellin also
alleges that beneficiaries are entitled to this appeal right, and to notice of the right,
under federal Medicaid statutes. Bellin brings her claims against Defendant-Appellee
ElderServe Health, Inc. (d/b/a RiverSpring at Home) (“RiverSpring”), an MLTC that she
alleges denied her these rights, and Defendant-Appellee Howard A. Zucker, in his
official capacity as Commissioner of the New York State Department of Health (the
“State”), for his alleged failure to enforce these rights.
The district court (Hellerstein, J.) granted Defendants-Appellees’ motions to
dismiss Bellin’s complaint, concluding that the federal statutes do not provide Medicaid
beneficiaries with a right to appeal initial personal care services hours determinations. It
dismissed Bellin’s due process claims after concluding that Bellin did not plausibly
allege a constitutionally protected property interest in an MLTC’s initial determination
of a particular number of care hours. We agree that the federal statutes do not
3
guarantee the appeal right Bellin asserts, but we conclude that the district court’s
dismissal of Bellin’s due process claims was premature.
When the State determines that a New York Medicaid beneficiary like Bellin is
eligible on a long-term basis for in-home assistance with personal care needs, the
administrative scheme provides that the beneficiary then contacts one or more MLTCs
for an evaluation. After the evaluation, each MLTC determines how many hours of care
it will provide per week as an initial matter if the beneficiary chooses to enroll in its
program. The current administrative regime establishes no mechanism for beneficiaries
to appeal the MLTCs’ initial care hours determinations. If a beneficiary receives offers
for care hours that are in her view insufficient, she has no choice but to enroll and begin
receiving care at an inadequate level (perhaps supplementing state-covered care with
private care pending any later adjustment). After beginning care with an MLTC, she
may request additional care hours. She then waits for the MLTC to rule on the request.
If her request is accepted, she begins receiving care at the adjusted level, having done
without or paid privately for care in the interim. If the adjustment is denied, she may
internally appeal to the MLTC. If the appeal fails, she has recourse to an appeal in the
form of a New York State “fair hearing,” under the State’s Medicaid regulations.
Bellin plausibly alleged that MLTCs’ discretion in making initial personal care
hours determinations is meaningfully channeled by contract, regulation, and related
authorities such that beneficiaries have a constitutionally protected property interest in
the number of hours an MLTC initially determines they are entitled to receive. Records
from fair hearings in Bellin’s case and others lend further support to the view that, at
least in some cases, New York State is able to determine based on MLTCs’ assessment
records that a beneficiary is entitled to a particular number of care hours above what
the MLTC initially determined.
4
We therefore vacate the district court’s dismissal of Bellin’s due process claims
and remand for further consideration of the limits on MLTCs’ discretion in making
initial determinations of personal care hours, as well as for consideration of whether the
current system adequately protects any property interest beneficiaries may have in
those care hours. We reject Bellin’s federal statutory claims.
The district court’s judgment is AFFIRMED with respect to Bellin’s federal law
claims, VACATED with respect to Bellin’s due process claims, and the action is
REMANDED for further proceedings consistent with this Opinion.
BACKGROUND
I. Bellin’s Application for Personal Care Services
Rosalind Bellin is a woman in her early 80s who lives alone in the Bronx, New
York. She suffers from several serious illnesses that limit her ability to care for herself
independently. In 2019, believing that she needed in-home care 24 hours a day, Bellin
applied for personal care services through the joint federal-state health care program
commonly known as Medicaid. See

42 U.S.C. § 1396

 et seq.
In Medicaid jargon, the term “personal care services” refers to in-home assistance
with personal care that is provided to people whose health conditions might otherwise
require that they reside in a nursing home. 1 In New York State, personal care services
1See

N.Y. Comp. Codes R. & Regs. tit. 18, § 505.14

(a)(1) (defining personal care services as
“assistance with nutritional and environmental support functions and personal care functions”
that are “essential to the maintenance of the patient’s health and safety in his or her own
home”); CTRS. FOR MEDICARE & MEDICAID SERVS., Personal Care Services (PCS) (July 15, 2020),
https://www.cms.gov/Medicare-Medicaid-Coordination/Fraud-Prevention/Medicaid-Integrity-
Program/Education/Personal-Care-Services (explaining that personal care services “are
provided to eligible beneficiaries to help them stay in their own homes and communities rather
than live in institutional settings, such as nursing homes”). To minimize the burden of
5
for individuals like Bellin are provided by MLTCs, entities that act under contract with
the State. See

N.Y. Pub. Health Law § 4403

-f(7)(b). Under New York law, the State pays
each MLTC a fixed sum—a “capitation”—for each beneficiary that it enrolls. Jt. App’x
16. Each MLTC bears the financial risk that the cost of a beneficiary’s care will exceed
the capitation amount. 2
When a Medicaid beneficiary seeks personal care services, 3 she is first evaluated
by New York’s Conflict-Free Evaluation and Enrollment Center (“CFEEC”), a single,
state-wide organization charged with determining whether the beneficiary is qualified
to receive such services. 4 Bellin was evaluated by the CFEEC and determined eligible to
receive personal care services. 5
acronyms in this discussion, we will refer to these services simply as “care services” or
“personal care services.”
2See Antonia C. Novello, N.Y. STATE DEP’T OF HEALTH, New York State Management Long-Term
Care, Interim Report to the Governor and Legislature at 20 (May 2003) (“2003 Interim Report”),
https://www.health.ny.gov/health_care/managed_care/mltc/reports.htm (last visited July 8,
2021) (“One of the innovative aspects of the managed long-term care demonstrations is the use
of an insurance or ‘risk’ model where plans are paid a predetermined amount per member per
month (PMPM), and in return must manage and pay for all services included in the benefit
package. This PMPM amount is referred to as the monthly capitation rate.”). The payment
structure is described in the Department of Health’s draft model contract for use with MLTCs.
See N.Y. STATE DEP’T OF HEALTH, Managed Long Term Care Partial Capitation Contract, art. VI(A),
https://www.health.ny.gov/health_care/medicaid/redesign/mrt90_partial_capitation_contract.ht
m#a6 (last visited July 8, 2021) (“The monthly capitation payment to the Contractor shall
constitute full and complete payments to the Contractor for all services that the Contractor
provides pursuant to this Agreement.”). As the State observes, the capitation payments in New
York are risk-adjusted so that MLTCs serving high-risk populations receive higher per-enrollee
payments than those in less needy areas.
3For clarity, we underscore that those seeking personal care services in this way must already
have been acknowledged by the State as qualified to receive Medicaid services.
4 CFEEC evaluations are conducted by Maximus, Inc., as of this writing.
5In this evaluation, the CFEEC relies on New York’s Uniform Assessment System (“UAS” or
“assessment system”). See N.Y. STATE DEP’T OF HEALTH, MLTC POLICY 15.08: CONFLICT-FREE
6
Once determined eligible, a beneficiary has 75 days to enroll with an MLTC. 6 She
may apply to one MLTC or many.7 Each MLTC applied to by the beneficiary must
conduct a “comprehensive assessment” of the beneficiary’s “medical, social, cognitive,
and environmental needs,” relying in large part on the State’s Uniform Assessment
System (“UAS” or “assessment system”).

N.Y. Pub. Health Law § 4403

-f(7)(g)(i); N.Y.
STATE DEP’T OF HEALTH, MLTC POLICY 13.09: TRANSITION OF SEMI-ANNUAL ASSESSMENT
OF MEMBERS TO UNIFORM ASSESSMENT SYSTEM FOR NEW YORK (Apr. 26, 2013),
https://www.health.ny.gov/health_care/medicaid/redesign/mltc_policy_13-09.htm (last
visited July 8, 2021) (requiring MLTCs to use the assessment system). The assessment is
performed in the beneficiary’s home by a registered nurse. It produces a “Nursing
Facility Level of Care” (“NFLOC” or “Level of Care”) score; the higher the score, the
greater the beneficiary’s need for care. Based on the results of the assessment, the MLTC
determines the services it will provide, including the number of daily hours of personal
care services, if the beneficiary chooses to enroll with that MLTC.
EVALUATION & ENROLLMENT CENTER DISPUTE RESOLUTION (Dec. 29, 2015),
https://www.health.ny.gov/health_care/medicaid/redesign/mltc_policy_15-08.htm (last visited
July 8, 2021). The UAS, discussed infra, is a mechanism for assessing Medicaid beneficiaries’
particular care needs. It is designed to produce consistent and standardized results in the
assessment task. See N.Y. STATE DEP’T OF HEALTH, Medicaid Redesign: Uniform Assessment System
for Long-Term Care in New York State (Oct. 2019),
https://www.health.ny.gov/facilities/long_term_care/uniform_assessment_system/ (last visited
July 8, 2021).
6 If the beneficiary does not select a long-term care plan within that time, she must be
reevaluated by the CFEEC. See N.Y. STATE DEP’T OF HEALTH, MLTC POLICY 16.08 (Dec. 16,
2016), https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/16-08.htm
(last visited July 8, 2021).
7As of April 2021, New York State’s Department of Health website reflected that it was
contracting with between 40 and 50 MLTCs. See N.Y. STATE DEP’T OF HEALTH, Managed Long-
Term Care Plan Directory (Apr. 2021),
https://www.health.ny.gov/health_care/managed_care/mltc/mltcplans.htm (last visited July 8,
2021).
7
In April 2019, Bellin contacted RiverSpring after another MLTC gave her a care
hours determination that she felt was too low. On May 8, a registered nurse from
RiverSpring assessed Bellin’s personal care services needs using the assessment system.
The RiverSpring nurse concluded that Bellin required eight hours of care services daily.
When the nurse told Bellin that this was her recommendation, Bellin’s daughter
protested on Bellin’s behalf, arguing that Bellin required substantially more hours of
daily care. Still, one week later, on May 15, Bellin’s daughter formally requested
enrollment with RiverSpring. Bellin began receiving personal care from RiverSpring in
her home, eight hours per day, on June 1, two weeks after she requested enrollment.
II. Bellin’s Appeal Attempts
Before she began receiving RiverSpring’s personal care services, Bellin tried to
appeal the initial determination that she was entitled to eight hours of personal care
services per day and no more. On May 22, 2019, Bellin’s attorney contacted RiverSpring
asking to appeal its initial determination. RiverSpring responded that Bellin could not
then appeal because Bellin was not yet enrolled in RiverSpring. She would be
“enrolled” and able to appeal only after June 1, when her care began, they advised.
On June 3, Bellin’s attorney again contacted RiverSpring about appealing the
initial determination. RiverSpring responded by letter dated June 4, entitled “NOTICE
OF NON-CONSIDERATION OF APPEAL.” Jt. App’x 22. The June 4 letter said that
Bellin’s “request for an appeal regarding the personal care [services] hours assigned at
enrollment” could not be processed because “an Initial Adverse Determination (IAD)
from the Plan regarding [the] request for additional [care service] hours has not been
issued.”

Id.

It further stated that it would construe Bellin’s attempted appeal as a
request for additional hours and would adjudicate that request. In other words,
RiverSpring now maintained that, even once her care began on June 1, Bellin was not
8
entitled to appeal its initial personal care services hours determination. Instead, she was
entitled to request additional personal care services hours prospectively and have
RiverSpring adjudicate that request alone.
RiverSpring then assessed Bellin a second time, on June 15, and concluded that
her condition had not changed and her care hours should not be increased. According
to RiverSpring, Bellin’s daughter contacted the company three days later, informing the
company that Bellin’s condition had worsened and that Bellin was newly wheelchair-
bound. About three weeks later, on July 10, the company assessed Bellin a third time.
Based on that assessment, it concluded that Bellin required 24-hour care. On July 12,
RiverSpring notified Bellin of that conclusion. It began providing Bellin full-time, live-in
care on July 23.
III. Complaint
Bellin filed this putative class action complaint on June 18, 2019, the same day
RiverSpring claims to have learned about a deterioration in Bellin’s condition that
confined her to a wheelchair. Bellin asserts that Medicaid beneficiaries who need
personal care services have the right under law to appeal initial determinations of their
personal care services hours made by MLTCs and to receive notice of that right to
appeal. She alleges that the State failed to enforce these rights and that Defendant
RiverSpring violated these rights by failing to process internal appeals when they were
requested and, relatedly, by failing to provide notice of the right to appeal. Bellin brings
the action under

42 U.S.C. § 1983

, asserting that the State and RiverSpring’s actions
violate her and the putative class members’ rights under the Due Process Clause of the
Fourteenth Amendment, as well as under various federal statutes governing Medicaid
9
beneficiaries’ rights to appeal. 8 Bellin seeks to represent a class of “current and future
New York State Medicaid recipients who have applied or will apply for Medicaid-
funded personal care services from MLTCs” and a sub-class of those Medicaid
recipients “who have applied or will apply for Medicaid-funded personal care services
from RiverSpring.” Jt. App’x 23. She seeks declaratory and injunctive relief instructing
the State to enforce class members’ rights to appeal MLTCs’ initial personal care hours
determinations and to receive notice of those appeal rights, and ordering RiverSpring to
provide notice of that right and process any such appeals. She also seeks attorney’s fees
and costs.
IV.    Fair Hearing Appeal
In a separate administrative appeal (the “fair hearing appeal”) filed with the
State on July 5, 2019, Bellin contested RiverSpring’s determination that she was entitled
to only eight hours of daily personal care services in the roughly six-week-period from
June 1, 2019, through July 12, 2019. In deciding Bellin’s appeal, the Commissioner’s
designee reviewed RiverSpring’s assessments and ruled for Bellin. 9
In a written decision dated September 23, 2019, he determined that neither
RiverSpring’s May 2019 assessment (completed before Bellin enrolled), nor the June
2019 assessment (completed after Bellin enrolled and requested more care hours)
supported the conclusion that Bellin was entitled to only eight hours of care per day at
8 Bellin charged that the denial of appeal rights and related notice violated 42 U.S.C. § 1396a(a)
(requiring states to provide review of adverse Medicaid benefits determinations in fair
hearings), 42 U.S.C. § 1396u-2 (authorizing expanded use of managed care organizations in
Medicaid and outlining required appeal rights), and federal regulations issued by the Centers
for Medicare & Medicaid Services (“CMS”) in conjunction with these statutes. We discuss these
provisions in greater detail below.
9Fair hearing appeals in the Department of Health are decided by Commissioner Zucker or his
designees. See

N.Y. Comp. Codes R. & Regs. tit. 18, §§ 358-5.6

(a)-(b), 358-6.1(a).
10
those times. 10 He found that “the Plan’s [i.e., RiverSpring’s] own documentation” did
not support that Bellin became eligible for 24-hour care due to a “change in
circumstances [that] came to light” only after the July assessment. Jt. App’x 81. Rather,
RiverSpring’s initial evaluation of Bellin in May 2019 supported a need for overnight
care, he wrote, citing documentation of Bellin’s various health conditions and her need
for “hands-on assistance with walking and locomotion.”

Id. at 80

. He concluded, “The
record does not support the Plan’s determination not to provide twenty-four (24) hour
daily assistance from the start of [Bellin’s] enrollment with the Plan on June 1, 2019.”

Id. at 81

. He therefore ordered “retroactive authorization” of 24-hour, live-in care as of June
1, 2019—when Bellin first began receiving care services from RiverSpring. 11

Id. at 82

.
Notably, in reaching this conclusion, the designee rejected RiverSpring’s argument that
“appeal was not . . . available” to Bellin immediately after the initial determination.

Id.

10Bellin’s fair hearing appeal decision and amended decision, which were included in the
parties’ joint appendix on appeal, as well as other fair hearing decisions we discuss below, are
public records properly subject to judicial notice under Federal Rule of Evidence 201(b). See Fed.
R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.”); Kramer v. Time Warner Inc.,

937 F.2d 767

, 773 (2d Cir. 1991)
(explaining that district court entitled to consider “matters of which judicial notice may be taken
under [Federal Rule of Evidence] 201” in deciding a Rule 12(b)(6) motion to dismiss). We do not
take judicial notice of Bellin’s fair hearing appeal record and other fair hearing decisions for the
“truth of the matters asserted.” Staehr v. Hartford Fin. Servs. Grp., Inc.,

547 F.3d 406

, 425 (2d Cir.
2008). Bellin filed the Commissioner’s designee’s initial fair hearing decision in the district court
as part of her opposition to the State’s and RiverSpring’s motions to dismiss. See Declaration of
Aytan Y. Bellin, Exs. A, B, Bellin v. Zucker,

457 F. Supp. 3d 414

 (S.D.N.Y. 2020) (No. 19-cv-5694
(AKH)), ECF No. 45. The record before the district court did not include the amended fair
hearing decision discussed here.
11 Under certain circumstances, retroactive authorization will entitle a recipient to
reimbursement for expenses incurred while care was denied. See

N.Y. Comp. Codes R. & Regs. tit. 18, § 360-7.5

(a)(3). According to Bellin’s counsel, Bellin’s daughter and son-in-law paid for
Bellin to receive additional care from June 1 through the date that RiverSpring began to provide
it. See Appellant’s Br. 7. The issue of reimbursement not having been raised on appeal, we
express no opinion about Bellin’s entitlement to it.
11
at 81. Instead, the designee explained that Bellin “ha[d] a right to contest the adequacy
of the” initial determination “from the moment” RiverSpring provided it.

Id.

New York State sought reconsideration. In an amended decision dated March 26,
2020, a different Commissioner’s designee did not disturb the earlier factual findings
regarding Bellin’s needs. He did, however, move the retroactive authorization date
from June 1 to June 18. He explained that the original decision was erroneous in its
conclusion that Bellin had a right to appeal RiverSpring’s initial determination. Upon
reconsideration, he ruled that Bellin had no right to appeal the initial determination,
even after she was enrolled and began receiving care. Rather, her request was properly
treated as a request to increase her care hours dated to June 4. He reasoned that, as a
result, RiverSpring should have issued its adverse determination denying her June 4
request within 14 days. It failed to do so. 12 Bellin therefore was entitled to retroactive
authorization of fulltime live-in care dating back only to June 18—14 days after her
June 4 request.
V.     District Court Proceedings
In a memorandum and order issued in April 2020, the district court granted the
defendants’ motions to dismiss for failure to state a claim. As to Bellin’s § 1983 due
process claims, it reasoned that she “did not have a property interest in a particular
level of care,” and therefore was not unlawfully denied a property right by the State’s
and RiverSpring’s appeal procedures. Bellin v. Zucker,

457 F. Supp. 3d 414

, 422 (S.D.N.Y.
12On June 18, 2019, RiverSpring extended the time for decision another 14 days. The
Commissioner’s designee found that the circumstances satisfied none of the statutory bases
permitting that extension, making June 18, 2019, the operative date of the adverse
determination. (RiverSpring did not ultimately deny Bellin’s request 14 days after June 18
either: it was only on July 15, almost one month later, that RiverSpring finally denied Bellin’s
request for additional services based on her June request and granted it as of July 13, citing the
claimed change in her condition.)
12
2020). 13 As to her federal statutory claims, it concluded that the relevant statutes do not
guarantee Medicaid beneficiaries the right to appeal MLTCs’ initial care hours
determinations.
Bellin timely appealed.
DISCUSSION
We review de novo the grant of a motion to dismiss. Fink v. Time Warner Cable,

714 F.3d 739

, 740-41 (2d Cir. 2013). In so doing, “we ‘must consider the complaint in its
entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.’” Kaplan v. Lebanese
Canadian Bank, SAL,

999 F.3d 842

, 854 (2d Cir. 2021) (quoting Tellabs, Inc. v. Makor Issues
& Rts., Ltd.,

551 U.S. 308

, 322 (2007)). We draw all reasonable inferences in the plaintiff’s
favor to determine whether the plaintiff stated a plausible claim to relief. See Fink, 714
F.3d at 740-41. Whether an action is moot is a legal question that we address de novo.
White River Amusement Pub, Inc. v. Town of Hartford,

481 F.3d 163

, 167 (2d Cir. 2007).
I.     Mootness
The State presses the position that, because Bellin is now receiving 24-hour, live-
in care from RiverSpring, this case is moot. The district court rejected this argument,
concluding that Bellin’s suit satisfied the exception to the mootness doctrine for
inherently transitory claims. Under this exception, “a case will not be moot, even if the
controversy as to the named plaintiffs has been resolved, if: (1) it is uncertain that a
claim will remain live for any individual who could be named as a plaintiff long
13In quotations from caselaw and the parties’ briefing, this Opinion omits all quotation marks,
alterations, and citations, unless otherwise noted.
13
enough for a court to certify the class; and (2) there will be a constant class of persons
suffering the deprivation complained of in the complaint.” Salazar v. King,

822 F.3d 61

,
73 (2d Cir. 2016); see also Klein ex rel. Qlik Techs., Inc. v. Qlik Techs., Inc.,

906 F.3d 215

, 223
(2d Cir. 2018).
We agree with the district court that Bellin’s claims fall squarely within this
exception. 14 The current administrative system precludes Medicaid beneficiaries from
appealing initial care hours determinations made by MLTCs. They must instead accept
the MLTC’s initial determination and request additional hours once their personal care
services begin. Federal regulations call for MLTCs in most circumstances to rule on
these requests within fourteen or twenty-eight days. See

42 C.F.R. § 438.210

(d)(1). 15 As
the district court recognized, however, any named plaintiff who, like Bellin, believes
that the MLTC’s initial determination denies her the appropriate number of care service
hours and who attempts to internally appeal that determination is likely to have her
attempt narrowly construed as a request for additional hours in the future. That request
will likely be adjudicated within the first month of her care, but one month is generally
not enough time to sue and obtain class certification in federal court. See Salazar, 822
F.3d at 73-74. Meanwhile, a large number of present and future enrollees who seek
more care hours than MLTCs initially determine they are entitled to receive—a
“constant class of persons”—is harmed by the denial of the asserted right to appeal
those determinations. Id. at 73.
14A reimbursement claim for the period through June 18 might also affect the possible mootness
of this dispute, but as noted above, Bellin did not press for reimbursement in her suit or attempt
to pursue it on appeal. See note 11, above.
15An MLTC may take 28 days to adjudicate a request if the “enrollee, or the provider, requests
extension” or if the MLTC “justifies (to the State agency upon request) a need for additional
information and how the extension is in the enrollee’s interest.”

42 C.F.R. § 438.210

(d)(1)(i)-(ii).
14
The State observes that another named plaintiff’s claims might not become moot
if that plaintiff’s request for additional hours is denied. Therefore, according to the
State, Bellin’s claims do not fall within the “inherently transitory” exception to
mootness. It is true that a plaintiff seeking additional care services hours—particularly
one with a meritless claim—might not receive her requested additional hours before a
plaintiff class can be certified and therefore might be able to serve as class
representative of a suit that is not moot. But this argument draws the “inherently
transitory” exception too narrowly. To take advantage of this exception to the mootness
doctrine, a plaintiff need not show that every hypothetical plaintiff’s claim faces certain
dismissal. The standard articulated in Salazar requires no more than that it be
“uncertain that a claim will remain live for any individual who could be named as a
plaintiff.” 822 F.3d at 73; see also Robidoux v. Celani,

987 F.2d 931

, 938-39 (2d Cir. 1993)
(holding that recipients of public assistance challenging delays by the Vermont
Department of Social Welfare could proceed under the “inherently transitory”
exception in part because “the Department will almost always be able to process a
delayed application before a plaintiff can obtain relief through litigation” (emphasis
added)); Zurak v. Regan,

550 F.2d 86

, 92 (2d Cir. 1977) (applying exception to mootness
doctrine when there was “a significant possibility that any single named plaintiff would
be released prior to certification” (emphasis added)).
There is a “significant possibility” that any plaintiff who brings the claims Bellin
asserts here would have her request for additional care hours resolved before a decision
on class certification could be made. Zurak,

550 F.2d at 92

. Even more persuasive,
plaintiffs with strong arguments that they have been denied the appropriate number of
care hours are particularly likely to have their claims mooted, undermining the
underlying purposes of this class action lawsuit.
15
The State also urges that Bellin’s case became moot “for reasons unique to her
rather than for reasons that would be common for the putative class.” State Br. 26.
According to the State, Bellin became entitled to additional personal care hours only
after RiverSpring’s initial assessment, when (as the State recounts) her medical
condition deteriorated. As detailed above, however, in Bellin’s fair hearing appeal the
Commissioner’s designee found that RiverSpring’s own records supported Bellin’s
entitlement to 24-hour care as of RiverSpring’s first assessment of Bellin in May 2019;
the records did not support the conclusion that Bellin became entitled to increased care
as a result of changed medical circumstances. Even on reconsideration, the second
designee did not disturb these factual findings. The State’s additional mootness
argument therefore has no force. The district court thus did not err by determining that
Bellin’s action could proceed.
II.    Bellin’s Due Process Claims
Bellin challenges the district court’s dismissal of her § 1983 claims alleging a due
process right to appeal MLTCs’ initial personal care services hours determinations. A
plaintiff states a due process claim by plausibly alleging that “(1) state action
(2) deprived him or her of liberty or property (3) without due process of law.” Barrows
v. Burwell,

777 F.3d 106

, 113 (2d Cir. 2015); see also Kapps v. Wing,

404 F.3d 105

, 112 (2d
Cir. 2005) (“In adjudicating [a procedural due process] claim, we consider two distinct
issues: 1) whether plaintiffs possess a liberty or property interest protected by the Due
Process Clause; and, if so, 2) whether existing state procedures are constitutionally
adequate.”). Bellin alleged in her complaint that “Zucker exercises significant control
over the MLTCs” and “the MLTCs are not simply regulated by state and federal law,
they are deeply integrated into the regulatory scheme provided for under federal and
state law.” Jt. App’x 20. Neither the State nor RiverSpring contests that RiverSpring is a
state actor in this context. See, e.g., Catanzano by Catanzano v. Dowling,

60 F.3d 113

, 119
16
(2d Cir. 1995) (holding that actions of New York State-certified home health agencies
constituted state action in part because those agencies were “the only entities permitted
to provide home health care under Medicaid, and are required to evaluate all potential
recipients,” and their decisions with respect to beneficiaries were guided by regulation
in addition to medical judgment). The district court did not reach the third prong of the
due process test because it held that Bellin lacks a property interest “in a particular level
of care.” 16 Bellin, 457 F. Supp. 3d at 422. As explained below, the district court’s
conclusion may ultimately prove to be correct, but its determination at the motion-to-
dismiss stage was premature.
A.      Constitutionally Protected Property Interests
A constitutionally protected interest exists where “one has a legitimate claim of
entitlement to the benefit”; “[a] mere unilateral expectation of receiving a benefit” does
not suffice. Kapps,

404 F.3d at 113

. To determine whether an applicant for benefits has a
constitutionally protected property interest in the receipt of a particular benefit, a court
must “look to the statutes and regulations governing the distribution of benefits” and
determine whether “those statutes or regulations meaningfully channel official
discretion by mandating a defined administrative outcome.” Id.; see Sealed v. Sealed,

332 F.3d 51

, 56 (2d Cir. 2003) (“In evaluating whether a state has created a protected interest
16Before reaching this conclusion, the district court expressed skepticism about whether Bellin,
as an applicant for benefits, could have a constitutionally protected property interest in
receiving benefits at all. See Bellin, 457 F. Supp. 3d at 422-23 (“The Supreme Court has not
announced a property interest in cases like Plaintiff’s because ‘[t]he Supreme Court has
repeatedly reserved decision on the question of whether applicants for benefits (in
contradistinction to current recipients of benefits) possess a property interest protected by the
Due Process Clause.’” (quoting Kapps,

404 F.3d at 115

)). The district court’s skepticism was
misplaced. In Kapps, we acknowledged that the “Supreme Court has repeatedly reserved
decision on the question,” but we then observed that “[e]very circuit to address the question . . .
has concluded that applicants for benefits, no less than current benefits recipients, may possess
a property interest in the receipt of public welfare entitlements.” Kapps,

404 F.3d at 115

.
17
in the administrative context, we must determine whether the state statute or regulation
at issue meaningfully channels official discretion by mandating a defined
administrative outcome.”). In addition to the relevant statutes and regulations, we must
consider the regulatory scheme as a whole: just as discretion may be channeled by law,
it may also be channeled by informal rules or institutional practices. See Furlong v.
Shalala,

156 F.3d 384

, 395 (2d Cir. 1998) (“[P]roperty interests may be established
through such diverse sources as unwritten common law and informal institutional
policies and practices.”); see also Bd. of Regents v. Roth,

408 U.S. 564

, 577 (1972)
(explaining that “[p]roperty interests . . . are not created by the Constitution,” but rather
by “existing rules or understandings that stem from an independent source such as
state law—rules or understandings that secure certain benefits and that support claims
of entitlement to those benefits”).
This inquiry involves two questions, corresponding to two distinct uses of the
word “discretion.” First, “discretion” may refer to a decision-maker’s ultimate power to
decide—the power to grant or deny a benefit regardless of whether particular criteria
are met. When the decision-making authority is accorded such wholesale discretion, a
procedural due process claim based on the decision-making process will fail. See Sealed,

332 F.3d at 56

 (“Where the administrative scheme does not require a certain outcome,
but merely authorizes particular actions and remedies, the scheme does not create
‘entitlements’ that receive constitutional protection under the Fourteenth
Amendment.”). Second, “discretion” may refer to the extent to which criteria govern
and limit a decision-maker’s power to decide—whether the prescribed criteria are open-
ended and subjective, or determinate and well-defined. When this more restricted type
of discretion is at issue, the procedural due process inquiry turns on the question—in an
admittedly somewhat circular inquiry—whether the relevant criteria “meaningfully
channel official discretion” to an extent sufficient to create a property interest. Kapps, 404
18
F.3d at 113 (emphasis added); see also Bd. of Pardons v. Allen,

482 U.S. 369

, 375 (1987)
(explaining the “two entirely distinct uses of the term discretion”: (1) where an official
“‘is simply not bound by standards set by the authority in question,’” and (2) whether
an official “‘must use judgment in applying the standards set . . . by authority’”
(quoting RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 31-32 (1977))).
1. The District Court’s Ruling
The district court alluded to the presence of both types of discretion in MLTCs’
decision-making authority. It suggested that MLTCs have ultimate discretion to decide
whether to offer a particular number of personal care hours. See Bellin, 457 F. Supp. 3d
at 423 (“[T]he regulations and agency guidance describe when 24-hour care may be
authorized; they do not state that it must be offered.”). It also implied that the relevant
regulations do not sufficiently channel MLTCs’ assessments of beneficiaries’ personal
care services needs so as to create a constitutionally protected property interest. See id.
(explaining that Bellin failed to allege a “scheme to channel discretion in MLTCs’
personal care determinations”).
The district court also pointed to two other aspects of the personal care services
assessment scheme as relevant to its conclusion: the fact that beneficiaries have the
option of seeking and choosing among multiple MLTC offers, and the fact that MLTCs
may compete with one another to sign up beneficiaries. See id. (pointing to “choice on
the part of the potential Medicaid enrollee, and the possibility of competition among
MLTCs as to the quantity and quality of care each proposes to offer” as reasons
beneficiaries lack a constitutionally protected due process interest in the initial
determination of their care services hours).
On appeal, the State and RiverSpring do not substantially defend the district
court’s suggestion that MLTCs possess the ultimate discretion to grant or deny care
19
services hours regardless of whether certain criteria are satisfied. 17 They instead argue
that MLTCs’ initial determinations of personal care services hours involve the
application of fluid, subjective criteria and specialized medical judgment such that their
discretion is not “meaningfully channeled.” We consider this argument below,
ultimately concluding that Bellin has plausibly alleged that MLTCs lack both this type
of unbounded discretion as well as the sort of “ultimate” discretion that the district
court suggested they have.
2. Meaningfully Channeled Discretion
As explained above, determining the extent to which decision-makers’ discretion
is channeled demands a careful examination of the required decision-making process.
In Barrows v. Burwell, for example, this Court considered whether Medicare beneficiaries
have a constitutionally protected property interest in being admitted to hospitals on an
inpatient basis as opposed to being placed on observation status, a decision that
substantially alters their responsibility under Medicare for the cost of their treatment.
17Both the State and RiverSpring’s briefs could be read to imply that MLTCs are never under an
obligation to provide a particular number of personal care services hours—that they possess the
sort of “ultimate” discretion that absolutely precludes a constitutionally protected property
interest. Upon closer examination, however, both parties’ arguments are simply variations on
their claims that the relevant personal care services hours criteria are too fluid and subjective to
create a constitutionally protected property interest in any particular number of hours. For
example, RiverSpring suggests in passing that under New York regulations “the conferral of the
benefit . . . never becomes mandatory.” RiverSpring Br. 32. Yet, in support of this contention,
RiverSpring cites the facts that “a nurse conducting a [uniform assessment] considers numerous
data points,” that “two individuals with the same [uniform assessment] score may” receive
different assessments, and that “different plans may assess the required number of hours
differently for [different] individuals.” RiverSpring Br. 32. In much the same way, the State
highlights “precatory language throughout the statutory and regulatory framework,” but in the
end argues only that this language “reinforces the absence of a predetermined outcome.” State
Br. 53. Neither party argues that the MLTC has the option under its contract with the State to
deny providing a given level of personal care services altogether to an individual who qualifies
for that level of care.
20

777 F.3d 106

, 107-09 (2d Cir. 2015). The district court held that because the decision
whether to admit a patient was a “complex medical judgment” committed to the
discretion of hospital physicians, beneficiaries have no constitutionally protected
property interest in being admitted.

Id. at 114

. In support of this conclusion, it pointed
to the Medicare Policy Manual, published by the Centers for Medicare & Medicaid
Services (“CMS”), which specifically stated that the decision whether to admit a patient
was a “complex medical judgment” based on a physician’s application of various
factors.

Id.

This Court held that the district court’s dismissal of the action for failure to state
a claim was premature. The Barrows plaintiff alleged that, despite the CMS guidance,
admissions decisions were in fact made “through rote application of ‘commercially
available screening tools,’” which, in practice, “substitute[d] for the medical judgment of
treating physicians.”

Id.

 In light of this allegation, we explained, the district court could
not fairly rely on the Medicare Policy Manual to serve as an accurate representation of
the admissions procedures. Otherwise stated, whether the plaintiffs had a
constitutionally protected property interest “turn[ed] on facts that [were], at th[at] stage,
contested.”

Id. at 115

. The Barrows Court recognized that a protected property interest
can arise in a number of ways and that it is important for district courts to consider the
details of the administrative scheme—and the allegations regarding those details—
before relying on general discretion-granting regulations to dismiss procedural due
process claims. Accordingly, although “[t]he issue of whether an individual has such a
property interest is a question of law,” Gagliardi v. Vill. of Pawling,

18 F.3d 188

, 192 (2d
Cir. 1994), Barrows and other precedents make clear that when a complaint plausibly
alleges discretion is meaningfully channeled based on the relevant sources, including
21
informal institutional policies and practices, the case should not be dismissed at the
Rule 12(b)(6) stage. 18
In this case, the district court dismissed Bellin’s due process claims after
examining the New York regulations that describe—at the highest level of generality—
the criteria MLTCs must consider in making initial hours determinations for personal
care services. See

N.Y. Comp. Codes R. & Regs. tit. 18, § 505.14

(a). In the district court’s
view, the fact that MLTCs were directed to apply criteria that “require medical
judgment and administrative decision making” established that MLTCs’ discretion was
not meaningfully channeled. Bellin, 457 F. Supp. 3d at 423. But whether Bellin plausibly
alleged that MLTCs’ discretion is meaningfully channeled cannot be answered simply
by an examination of the highest-level generally applicable regulations.
The relevant regulations, which are incorporated by reference into the complaint,
do not establish as a matter of law that the discretion of the MLTCs is not meaningfully
channeled. The State and RiverSpring argue that because 18 N.Y.C.R.R. § 505.14(b),
which sets forth criteria the MLTCs must consider, contains a physician’s evaluation, a
social assessment, and a nursing assessment that each require subjective judgments, the
criteria are too open-ended to be meaningfully channeled. For example, the State
contends that “[u]nder state law, an MLTC plan may provide personal care services
only to the extent those services are ‘determined to meet the patient’s needs for
assistance,’ and ‘when’ those services are also ‘cost effective and appropriate.’” State Br.
50 (emphasis omitted). Although the criteria involve professional and subjective
18To be clear, we do not mean to suggest that anytime a plaintiff alleges a due process claim, the
case should move on to discovery because there may be sources that could be uncovered during
discovery that would help determine whether discretion is meaningfully channeled. The
complaint, documents incorporated by reference into the complaint, and matters of which the
court may take judicial notice must in totality raise a plausible inference that plaintiffs are
entitled to relief and that the case should therefore proceed to discovery.
22
determinations, many of the criteria are also objective and fixed. For instance, the
nursing assessment must by regulation include six specific factors, including more
objective ones such as “the primary diagnosis code from the ICD-9-CM.” 18 N.Y.C.R.R.
§ 505.14(b)(3)(iii)(b)(2). Even with the cost-effectiveness criteria, the regulation
delineates the considerations and alternatives that should be taken into consideration; it
does not just leave the assessment of cost-effectiveness to the MLTCs without providing
any substantive guidance. See id. § 505.14(b)(3)(iv); see also Fleury v. Clayton,

847 F.2d 1229

, 1232 (7th Cir. 1988) (“[T]he inclusion of elastic items in a list of criteria does not
destroy a property interest.”).
As a result, this case is different from Yale Auto Parts, Inc. v. Johnson,

758 F.2d 54

(2d Cir. 1985), upon which the State relies in support of the view that “this Court and
others [] reject claims of constitutionally protected entitlements” when “the regulatory
scheme involves both professional judgment and open-ended criteria.” State Br. 48. In
Yale Auto Parts, the Court held that the plaintiff businesspeople had no constitutionally
protected property interest in approval by the West Haven Zoning Board of Appeals of
the location for an auto junkyard.

758 F.2d at 60

. The Court highlighted the appellate
zoning board’s statutory duty to take into account highly subjective considerations such
as “the health, safety and general welfare of the public,” and, citing this substantial
“discretion,” concluded that the plaintiffs lacked the requisite property interest.

Id. at 59

. 19
19In addition, the Yale Auto Parts court did not affirm dismissal of the complaint simply because
the Zoning Board of Appeals applied subjective criteria. The court emphasized that the plaintiff
in that case did not allege that “but for the” alleged due process violation, the Zoning Board of
Appeals “would have been required to award them the requested” approval.

Id. at 60

. The
presence of highly subjective criteria confirmed that there was no “certainty or a very strong
likelihood that,” absent the alleged denial of due process, plaintiff’s “application would have
been granted.”

Id. at 59

. In Bellin’s case, by contrast, the Commissioner’s designee has already
23
In her complaint, Bellin plausibly alleged that “MLTCs’ decisions regarding the
appropriateness and amount of personal care services to provide to Medicaid recipients
are not independent professional judgments because those decisions are governed by,
and must conform with Federal and New York State statutes, regulations, manuals and
transmission letters.” Jt. App’x 20. She pointed out that they must by contract provide
sufficient services “to reasonably be expected to achieve the purpose for which the
services are furnished,” and that they must be furnished at levels “no less . . . than
[those] furnished to beneficiaries under fee-for-service Medicaid.” Id. at 17 (quoting

42 C.F.R. § 438.210

(a)). She further alleged that, when certain regulatory criteria are
satisfied, “MLTC plans are required to provide medically necessary in-home personal
care services up to and including 24 hours per day.”

Id.

 (citing 18 N.Y.C.R.R.
§§ 505.14(a)(3), (5), 505.28(b)(4), (8)). As explained above, the criteria outlined in 18
N.Y.C.R.R. § 505.14(b) place substantive limitations on the MLTCs’ decision-making. In
addition, the complaint identifies the MLTC Policy, which incorporates the Uniform
Assessment System, a special tool that all parties discuss in their briefing and as Bellin
argues “generates the answers to certain questions about functional impairments.”
Bellin Reply Br. 22. Although Bellin’s complaint was not a model of specificity, it
included these plausible, relatively specific allegations that MLTCs’ decision-making is
determined that RiverSpring’s May 2019 assessment supported her entitlement to 24-hour, live-
in personal care services. Absent the denial of her right to appeal, then, RiverSpring would
almost certainly have been required to offer Bellin that care as part of its initial care services
hours determination. We also read the Yale Auto Parts case to be concerned about applying
federal due process review to state administrative decision-making. In light of the substantial
federal role in overseeing and regulating state Medicaid programs, we see no similar risk here
of “open[ing] a Pandora’s Box of unnecessary federal-state conflict.” Yale Auto Parts,

758 F.2d at 59

.
24
not unbounded; rather, it is meaningfully channeled, and on this basis she claimed a
constitutionally protected property interest in a particular level of care.
Other aspects of the record in the district court reinforce the plausibility of
Bellin’s due process claim. In opposing the motion to dismiss, Bellin filed with the
district court the initial decision and portions of the record in her fair hearing appeal in
which she sought reimbursement for the days she went without full-time care before
RiverSpring determined she was entitled to care at that level. See Declaration of Aytan
Y. Bellin, Exs. A, B, Bellin v. Zucker,

457 F. Supp. 3d 414

 (S.D.N.Y. 2020) (No. 19-cv-5694
(AKH)), ECF No. 45. 20 She also included records of another fair hearing decision made
publicly available in a redacted format, in light of the privacy interests in the medical
information it necessarily contains. 21

Id.,

Ex. D.
In deciding Bellin’s fair hearing appeal (as described above), the Commissioner’s
designee reviewed RiverSpring’s evaluations of Bellin’s condition and concluded that
they conclusively established her entitlement to 24-hour, live-in care. This fair hearing
decision lends plausibility to Bellin’s allegation that the MLTCs are required to provide
a particular level of personal care services upon finding that beneficiaries satisfy certain
criteria. Contrary to the district court’s suggestion that the regulatory scheme merely
authorizes a certain level of care when certain criteria are met, Bellin, 457 F. Supp. 3d at
423, and does not require that care be offered, the fair hearing record plausibly
establishes that upon finding certain criteria satisfied, MLTCs must provide 24-hour
20 The record did not include the amended fair hearing decision, which was issued after Bellin
filed her opposition to the motion to dismiss. Because it concerned the date on which an
entitlement began rather than the entitlement and record itself, it is not relevant to our
discussion at this point.
21As discussed in note 10, supra, these fair hearing decisions are matters of public record
properly subject to judicial notice.
25
personal care services, see Appellant’s Reply Br. 25 (“The fair hearing decisions indicate
unequivocally that upon satisfying the criteria for a particular number of home care
hours, the hours must be awarded.”).
Critically, Bellin’s fair hearing decision does not appear to be unique in this
aspect. She cites several other fair hearing decisions that reflect an apparent practice in
the Department of Health of reviewing MLTCs’ assessments and concluding based on
the satisfaction of certain criteria that beneficiaries are entitled to a specific number of
personal care services hours. See Appellant’s Br. 48-49; Appellant’s Reply Br. 26. For
instance, in one case, the Commissioner’s designee ruled that an MLTC had wrongly
denied a 99-year-old recipient’s request to increase her personal care services from 12
hours per day to 24-hour, live-in care. The Commissioner’s designee reached this
conclusion based on the MLTC’s assessment, which indicated that the recipient could
not walk or use a toilet without support. See Decision After Fair Hearing, No. 8110102H
(State of N.Y. Dep’t of Health Aug. 12, 2020),
https://otda.ny.gov/fair%20hearing%20images/2020-8/Redacted_8110102H.pdf (last
visited July 9, 2021); see also Decision After Fair Hearing at 21-22, No. 8171784M (State of
N.Y. Dep’t of Health July 13, 2020) (directing MLTC to increase appellant’s personal
care services hours from 10 hours per day to 24-hour, live-in care based in part on
“skilled services nurse[‘]s notes contained in the Plan’s evidence”),
https://otda.ny.gov/fair%20hearing%20images/2020-8/Redacted_8171784M.pdf (last
visited July 12, 2021).
The fact that administrative review is possible for such similar claims supports
Bellin’s claim that beneficiaries have a property interest in the initial determination of
their personal care services hours. Our decision in Furlong v. Shalala,

156 F.3d 384

 (2d
Cir. 1998), is instructive in this regard. In Furlong, plaintiff anesthesiologists challenged
the denial of the right of non-assigned physicians to appeal Medicare adverse payment
26
decisions. The anesthesiologists asserted that they were denied a constitutionally
protected property interest when they were prevented from appealing insurance
carriers’ decisions to deem certain of their services “surgical,” resulting in lower
reimbursement rates.

Id. at 389, 393

. The Court first explained that federal regulations
left insurance carriers with considerable discretion in deciding whether a service was
“surgical,” and so did not provide a basis for identifying a protected property interest.

Id. at 394

. But the Court then considered the fact that, when assigned physicians—who
had appeal rights—appealed the designation of the same services as the non-assigned
plaintiff anesthesiologists performed, ALJs repeatedly reversed the carriers’ decisions.

Id.

 Recognizing that these ALJ decisions were “persuasive authority in interpreting
Medicare law,” and ruling that the “constant, consistent pattern of ALJ decisions” was
sufficient to create a property interest in the designation of services, the Court held that
the plaintiff anesthesiologists had a protected property interest in receiving the higher
reimbursement amount.

Id. at 395-96

. In the same way, the fair hearing appeal decisions
Bellin identifies lend support to her assertion of a constitutionally protected property
interest. 22
Bellin therefore plausibly alleges a property interest in MLTCs’ initial care
services hours determinations. We appreciate the State’s argument that the regulations
introduce sufficiently “open-ended considerations” into these determinations that
22The State and RiverSpring are largely silent about the relevance of the State fair hearing
decisions to Bellin’s due process claims. RiverSpring argues that “the fact . . . that fair hearing
decisions include descriptions of the standards and procedures MLTCs must utilize when
making home-care-hour determinations . . . (which are nothing more than recitations of the
guidelines) . . . does not demonstrate that a plan is required to authorize a specific level of
personal care services upon rote application of such standards and procedures.” RiverSpring Br.
34. However, “rote” application is not required to establish that discretion is meaningfully
channeled.
27
Bellin cannot have a constitutionally protected property interest in a particular level of
care, even at the full-time, live-in level, where one might imagine few would differ on
the level of need. State Br. 51. Yet, to survive the motions to dismiss, it was not Bellin’s
burden to make anything more than a plausible allegation that MLTCs’ discretion is
channeled so as to create a property interest in initial hours determinations, and the
district court was obligated to draw all reasonable inferences from Bellin’s allegations in
her favor. Bellin carried this burden.
On remand, the parties will likely have the opportunity to develop the record
concerning how these personal care services hours determinations are made and what
the applicable regulations require of both the MLTC and the State. This includes the
various forms of guidance that may be non-public and may limit MLTCs’ discretion to
which Bellin alluded in her complaint. See Jt. App’x 20 (“MLTCs’ decisions regarding
the appropriateness and amount of personal care services to provide to Medicaid
recipients are not independent professional judgments because those decisions are
governed by, and must conform with . . . manuals and transmission letters.” (emphasis
added)). It also includes the way MLTCs’ discretion is channeled in practice. Given the
review of assessment records that occurs in fair hearing appeals, the way the Uniform
Assessment System works in practice may be particularly relevant on remand.
RiverSpring acknowledges that “the [Uniform Assessment System] assigns a numbered
[nursing facility level of care] score based on the various data collected.” RiverSpring
Br. 32. Although RiverSpring submits on appeal that this data includes “the subjective
observations of the assessor,” and that two beneficiaries may receive the same score and
yet receive different levels of care,

id.,

 the fair hearing appeal decisions suggest that
these assessments at least sometimes support an obvious entitlement to a particular
number of personal care services hours. The evaluation of this and other relevant issues
will benefit from further factual development on remand.
28
3. Beneficiary Choice and MLTC Competition
The district court cited “choice on the part of the potential Medicaid enrollee, and
the possibility of competition among MLTCs as to the quantity and quality of care each
proposes to offer,” as additional reasons for its conclusion that Bellin lacks a
constitutionally protected property interest in the initial determination of her care
services hours. Bellin, 457 F. Supp. 3d at 423. These aspects of New York’s Medicaid
scheme have no legitimate bearing on whether Bellin has a constitutionally protected
property interest. The fact that a beneficiary can seek out another MLTC and go through
the same evaluation process does not affect whether the regulatory scheme
“meaningfully channel[s] official discretion by mandating a defined administrative
outcome.” Kapps,

404 F.3d at 113

. If we were to hold otherwise, states could dodge the
dictates of the Due Process Clause by having multiple firms “compete” to assess
beneficiaries’ entitlement to a particular amount of a benefit and to provide that benefit,
even if in practice those “competing” assessments yielded the same outcomes and the
competition was largely illusory. 23 The fact that beneficiaries can opt to seek initial
23In other words, one cannot infer “choice” and “competition” from the presence of multiple
MLTCs to which a beneficiary may apply. The number of available MLTCs varies by region,
and federal law requires states to ensure only that two managed care organizations are
available to any given enrollee, subject to certain exceptions. See 42 U.S.C. § 1396u-2(a)(3).
Meanwhile, the same structure that is designed to generate cost savings in the managed care
model may also create incentives for providers not to offer adequate care to high-needs
beneficiaries in hopes that those beneficiaries choose the competition. Recall that MLTCs are
paid a flat capitation per beneficiary. When considering a high-needs beneficiary such as Bellin,
MLTCs may have an incentive not to take her on as a patient—and therefore an incentive not to
offer an attractive or even adequate number of personal care hours. See 2003 Interim Report at
20-21 (explaining that MLTCs are “paid a predetermined amount per member per month” and
that, although regional rates vary based on broad enrollee demographic and other factors,
MLTCs ultimately bear the risks associated with covering the costs of “all needed medical
services” for any single enrollee through these payments). The Medicaid and CHIP Payment
and Access Commission, a non-partisan federal legislative agency, has observed that
29
offers of personal care service levels from multiple MLTCs, and that these MLTCs may
provide different initial determinations, does not preclude finding that Bellin plausibly
alleged beneficiaries have a constitutionally protected property interest in the initial
determination of the care hours they will receive.
B. Constitutionally Adequate Protections
The State argues that, even if Bellin has a constitutionally protected interest in the
amount of personal care services she receives, New York’s procedures for reviewing
MLTCs’ initial offers of such hours “are constitutionally adequate.” State Br. 55; see
Furlong,

156 F.3d at 395

 (“The issue of what constitutes a substantive property interest is
analytically distinct from the issue of what procedures must be followed if such interest
is to be taken away.”). In keeping with our general practice, however, we decline to
reach this question as it was not addressed by the district court. See Booking v. Gen. Star
Mgmt. Co.,

254 F.3d 414

, 418-19 (2d Cir. 2001) (explaining that, although it has “broad
discretion” to address such questions, the Court generally does not reach questions not
addressed by district court).
The State contends that it raised the constitutional adequacy of process argument
in his motion to dismiss to preserve it for our consideration on appeal. We leave it to the
district court to decide whether on remand, before discovery proceeds, the State (or
RiverSpring) may challenge the adequacy of Bellin’s allegations regarding the
inadequacy of current procedural protections.
“[c]apitated plans may also seek to enroll as many healthy patients as possible and discourage
participation of disabled or high utilizing enrollees.” MEDICAID & CHIP PAYMENT & ACCESS
COMM’N, Managed care’s effect on outcomes, https://www.macpac.gov/subtopic/managed-cares-
effect-on-outcomes/ (last visited July 10, 2021). We do not mean to suggest that this is how
RiverSpring or any other MLTC in New York operates in practice—only that one cannot safely
infer beneficiary “choice” and “competition” as would be relevant here from the fact that
beneficiaries may seek service offers from multiple MLTCs.
30
III. Statutory Claims
Bellin also appeals the district court’s dismissal of her § 1983 claims alleging the
State’s violation of her federal statutory rights. In interpreting any statute, we start
with—and absent any ambiguity, end with—the plain meaning of the text construed in
its statutory context. See, e.g., MacNeil v. Berryhill,

869 F.3d 109

, 113 (2d Cir. 2017).
A.     Enrollee Appeal Rights
Bellin first argues that she is entitled to appeal initial care hours determinations
under the federal statutes and regulations governing the appeal rights of Medicaid
beneficiaries. 42 U.S.C. §§ 1396a(a)(3), 1396u-2(b)(4); 42 C.F.R. Part 438. Specifically,
Bellin avers that after she “enrolled with RiverSpring, RiverSpring was required to
process [her] appeal of RiverSpring’s initial authorization” and to provide her notice of
her right to appeal the initial determination. Appellant’s Br. 24. Bellin does not contest
that she was not formally “enrolled” in RiverSpring until June 1, 2019, when her care
began.
Section 1396u-2 requires managed care organizations such as MLTCs to
“establish an internal grievance procedure under which an enrollee who is eligible for
medical assistance under the State plan under this subchapter, or a provider on behalf
of such an enrollee, may challenge the denial of coverage of or payment for such
assistance.” 42 U.S.C. § 1396u-2(b)(4). As explained in corresponding CMS regulations,
MLTCs must provide an internal appeal right, and notice of that right, whenever the
MLTC makes an “adverse benefit determination.”

42 C.F.R. § 438.404

(b) (requiring that
managed care organizations provide notice explaining the “adverse benefit
determination,” the “enrollee’s right to request an appeal of the . . . adverse benefit
determination,” and the “procedures for exercising” that right); see also

id.

§ 438.402(c)(2)(ii) (“Following receipt of a notification of an adverse benefit
determination . . . , an enrollee has 60 calendar days from the date on the adverse
31
benefit determination notice in which to file a request for an appeal to the managed care
plan.”).
Applicable regulations define an “adverse benefit determination” as, among
other things, “[t]he denial or limited authorization of a requested service, including
determinations based on the type or level of service, requirements for medical necessity,
appropriateness, setting, or effectiveness of a covered benefit.”

42 C.F.R. § 438.400

(b)(1).
Bellin argues that RiverSpring’s initial determination that Bellin was eligible for only
eight hours of personal care services per day constituted an “adverse benefit
determination” within this statutory scheme. Appellant’s Br. 24. Once Bellin enrolled
with RiverSpring, she maintains, RiverSpring was obliged to provide her notice of her
right to appeal.
We are not persuaded that the “adverse benefit determination” contemplated by
these regulations includes an MLTC’s initial determination of personal care hours. An
adverse benefit determination is the “denial or limited authorization of a requested
service,”

42 C.F.R. § 438.400

(b)(1) (emphasis added), but Bellin had no opportunity to
formally “request” 24-hour, live-in personal care services when she sought an
evaluation by RiverSpring. Bellin conceded before the district court that Medicaid
beneficiaries do not “request” a particular number of care hours in applying for those
services: she described instead an informal procedure for making “requests,” in which
beneficiaries may tell an MLTC’s assessing nurse the number of care hours they hope to
receive, and thereby de facto make a request for a service that may be denied or
limitedly authorized. See Letter Addressed to Judge Alvin K. Hellerstein at 2, Bellin v.
Zucker,

457 F. Supp. 3d 414

(S.D.N.Y. 2020) (No. 19-cv-5694 (AKH)), ECF No. 58
(explaining that the Medicaid application form “does not contain a place to request a
particular number of hours of care,” but that a personal care services applicant
“generally makes a request for a particular number of hours of home care services later,
32
to an MLTC nurse, who comes to the applicant’s home to determine the number of
hours of home care to which the applicant is entitled”). Although Bellin argues that she
“requested” 24-hour service after RiverSpring’s initial evaluation and before she
enrolled and “requested” an appeal of RiverSpring’s determination after she enrolled,
see Appellant’s Br. 22, 24, she does not claim that this sort of de facto informal request to
an MLTC nurse is contemplated by the Medicaid laws.
In Bellin’s case, after a RiverSpring nurse informed Bellin that she was going to
recommend that Bellin receive eight hours of personal care services daily, Bellin alleges
that she “protested” that amount of care “through her daughter,” claiming it “was
woefully insufficient.” Jt. App’x 21. We do not see how this statement, or even a request
made before the evaluation began, could constitute an actionable “request” for care
hours that RiverSpring “denied” in its initial determination under the plain meaning of
the term “request” as understood in its statutory context. In this circumstance, the
statute unambiguously establishes that MLTCs’ initial personal care hours
determinations cannot constitute adverse benefit determinations.
This conclusion is further supported by the regulations governing notice of
adverse benefit determinations. CMS regulations require that notice of decisions
denying services be mailed within 14 days of the request for services. See

42 C.F.R. § 438.404

(c)(3) (requiring that notice of “standard service authorization decisions that
deny or limit services” be mailed to enrollees “within the timeframe specified in
§ 438.210(d)(1).”); id. § 438.210(d)(1) (“For standard authorization decisions, [the MLTC
must] provide notice as expeditiously as the enrollee’s condition requires and within
State-established timeframes that may not exceed 14 calendar days following receipt of
the request for service . . . .”). Bellin maintains that pre-enrollment initial determinations
of personal care services hours trigger this notice requirement based on informal
requests made by potential recipients for a particular number of hours. Yet Bellin
33
concedes that only enrollees are entitled to notice under this provision. Since potential
recipients have more than 14 days to accept pre-enrollment offers from MLTCs, and
enrollment may not follow until weeks after that, 14 days could regularly elapse
between the request for a specific number of personal care services hours and the time
when a recipient enrolls in an MLTC. As a result, MLTCs could often involuntarily
violate the notice provision even if they gave notice of appeal rights the day a recipient
began to receive care and thus became an enrollee.
Bellin responds that MLTCs could avoid this problem by “providing [each]
potential enrollee with the required appeal notice when the [MLTC] makes its initial
service determination.” Appellant’s Br. 27. This misunderstands the problem. While it
might be feasible for MLTCs to provide the required notice to every potential enrollee at
the time of the initial assessment, the regulations contemplate notice to enrollees only,
and the impossibility of providing notice on the regulatory timetable, as discussed,
provides another reason to doubt that Bellin’s reading of these provisions comports
with their intended meaning. 24
24As the State notes, CMS knows how to require notice to potential enrollees and how to
identify potential enrollees when a notice must go to them. See, e.g.,

42 C.F.R. § 438.10

 (requiring
managed care organizations to “provide all required information in this section to enrollees and
potential enrollees in a manner and format that may be easily understood and is readily
accessible by such enrollees and potential enrollees”). Bellin counters that, in her view, CMS
generally uses “enrollee” to include “potential enrollees” as well. Bellin’s argument relies,
however, on misreadings of CMS responses to public comments published in the Federal
Register. Bellin cites a CMS discussion of “potential enrollee financial liability” as if it is
discussing the financial liability of potential enrollees. See Medicaid and Children's Health
Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed
Care, and Revisions Related to Third Party Liability,

81 Fed. Reg. 27,498

, 27,507 (May 6, 2016). In
fact, in the quoted passage CMS appears to be discussing the potential financial liability of
enrollees, since its response is to comments recommending “that CMS revise the definition of
‘adverse benefit determination’ to include disputes regarding an enrollee’s financial liability.”
34
B.      Fair Hearing Appeal Rights
Bellin argues in the alternative that Medicaid beneficiaries are entitled to an
appeal of initial care hours determinations based on the guarantee of fair hearing
appeal rights in 42 U.S.C. § 1396a(a)(3) and accompanying CMS regulations. State
Medicaid plans must “provide for granting an opportunity for a fair hearing before the
State agency to any individual whose claim for medical assistance under the plan is
denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3). This
requirement is further outlined by CMS regulation:
The State agency must grant an opportunity for a hearing to . . . [a]ny
individual who requests it because he or she believes the agency has
taken an action erroneously, denied his or her claim for eligibility or for
covered benefits or services, or issued a determination of an individual’s
liability, or has not acted upon the claim with reasonable
promptness . . . .

42 C.F.R. § 431.220

(a)(1). Bellin argues that RiverSpring “denied . . . her claim for . . .
covered . . . services” and she was entitled to appeal that denial at a fair hearing.

Id.

But Bellin did not make a “claim” for personal care services that was “denied.”

Id.

 As explained in Part III.A above, Bellin did not and could not request a certain
number of hours when she sought evaluation by RiverSpring. Bellin points to
statements by CMS that the denial of a claim includes the “denial of a particular ‘level
of benefits,’” Appellant’s Br. 20, but this does not alter the analysis. No party disputes
that, once enrolled, recipients may request additional personal care services hours and
may appeal the denial of their request. What Bellin fails to provide support for is the
proposition that potential recipients at any point make a “claim” for a particular

Id. at 27,507

. This same misreading underlies the use of “potential enrollee” on the next page of
the Federal Register, which Bellin also cites in support of her argument. See

id. at 27,508

.
35
number of hours of personal care services that is denied through MLTCs’ initial hours
determinations.
In the absence of clear textual support for her view, Bellin argues that
interpreting federal law not to require a fair hearing right in the instant circumstance
would “amount to an improper repeal of the long-standing appeal rights granted by 42
U.S.C.[]§ 1396a(a)(3).” Appellant’s Br. 34. In making this argument, Bellin relies on the
well-established presumption that Congress does not repeal earlier statutes sub silentio.
See Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644

, 662 (2007) (“We will not
infer a statutory repeal unless the later statute expressly contradicts the original act or
unless such a construction is absolutely necessary in order that the words of the later
statute shall have any meaning at all.”). According to Bellin, an interpretation of
§ 1396u-2 that denies beneficiaries fair hearing rights effects a repeal of § 1396a and
should be avoided.
In the fee-for-service model, local social services districts determine beneficiaries’
entitlement to personal care services and the number of hours they receive. These
determinations are subject to appeal in a fair hearing. Congress passed § 1396u-2 in 1997
and substantially expanded states’ ability to use a managed care model to deliver
Medicaid services. See Balanced Budget Act of 1997, Pub. L. No. 105-33,

111 Stat. 251

.
New York now requires beneficiaries like Bellin to receive personal care services from
MLTCs. These managed care organizations both assess beneficiaries’ care hours needs
and provide them with that care.
Bellin would have us read into § 1396u-2 a congressional guarantee that
beneficiaries’ fair hearing rights remain untouched in the move to managed care. We
see no basis in the statute to understand that Congress intended such a guarantee. For
example, § 1396u-2 requires managed care organizations to set up internal appeal
procedures. See 42 U.S.C. § 1396u-2(b)(4) (requiring managed care organizations to
36
“establish an internal grievance procedure under which an enrollee . . . may challenge
the denial of coverage of or payment for such assistance”). Although not addressed in
the statute, subsequently issued CMS regulations require that beneficiaries’ appeals be
handled by managed care organizations in the first instance; only after that can
beneficiaries demand an appeal through a fair hearing. See

42 C.F.R. § 438.408

(f)(1) (“An
enrollee may request a State fair hearing only after receiving notice that the [managed
care organization] . . . is upholding the adverse benefit determination.”); see also

id.

§ 438.402(b) (“Each [managed care organization] . . . may have only one level of appeal
for enrollees.”). The result is a substantial limitation of beneficiaries’ rights to appeal
through a fair hearing.
Bellin cites statements by CMS during a notice and comment period regarding 42
C.F.R. Part 438 to argue that “CMS has explicitly disavowed any intent to limit
individual[s’] pre-existing appeal rights under 42 U.S.C. § 1396a(a)(3).” Appellant’s Br.
36. Upon closer inspection, however, CMS did no more than largely reiterate the
importance of beneficiaries generally retaining fair hearing rights. For instance, Bellin
cites a CMS statement that it was “critical that all beneficiaries . . . have access to the
State fair hearing process rights provided for” in § 1396a(a)(3). Medicaid Program;
Medicaid Managed Care,

66 Fed. Reg. 6228

, 6341 (Jan. 19, 2001). But no party disputes
that beneficiaries remained entitled to robust fair hearing rights under the managed
care model. The question is whether those fair hearing rights had to mirror prior fee-
for-service hearing rights in every respect. In promulgating the internal grievance
procedure rules, CMS explained that it was acting pursuant to its authority under
§ 1396a(a)(3) as well as § 1396u-2, and that before its rulemaking, § 1396a(a)(3)’s fair
hearing requirements “ha[d] not been implemented in regulations that appl[ied] to
managed care enrollees.” Id. at 6335. CMS thus recognized that a managed care model
required the development of new fair hearing procedures tailored to that model.
37
Accepting Bellin’s argument would demand that we import wholesale the fair hearing
requirements applicable to the fee-for-service model into this substantially different
context. Finding Bellin’s reading of the statutory language strained, we decline to do so.
Bellin is not wrong that New York’s managed care system has altered
beneficiaries’ appeal rights. If every MLTC that evaluates a beneficiary makes too low
an initial personal care services hours determination, that beneficiary is left with no
choice but to accept one of the offers of care, begin care receiving fewer hours than she
is entitled to receive, and then go through the process of requesting more hours, waiting
for a decision, appealing internally, and appealing to a fair hearing. Meanwhile, the
State does not dispute that the same beneficiary in a fee-for-service care delivery model
would be entitled to appeal immediately the number of personal care hours initially
determined. The limits on beneficiaries’ appeal rights may prove important on remand
in evaluating Bellin’s procedural due process claims. They do not provide a persuasive
basis for concluding that beneficiaries have a federal statutory right to appeal an
MLTC’s initial care hours determination.
CONCLUSION
New York’s decision to restructure the initial determination of Medicaid
beneficiaries’ personal care services hours had major consequences for those seeking to
challenge and promptly resolve the number of hours of care they would receive.
Although we conclude that the resulting limitations on beneficiaries’ appeal rights do
not violate federal Medicaid law, we hold that Bellin has plausibly alleged that those
limitations deprive her and similarly situated plaintiffs of a constitutionally protected
property interest.
38
For the reasons set forth above, the judgment of the district court is AFFIRMED
in part and VACATED in part, and the action is REMANDED for further proceedings
consistent with this Opinion.
39