National Union of Hospital & Health Care Employees v. Carey

VAN GRAAFEILAND, Circuit Judge:

The issue in this case is simply stated. Can a union, which has organized a number of nursing homes in the State of New York, sue the State to secure an increase in Medicaid payments to the homes in order that the union may negotiate higher salaries for its members? The District Judge held that it could not. We believe that he was right.

The State of New York, as a participant in the Federal Medicaid program under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., must adopt a plan for medical assistance and have it approved by the Secretary of Health, Education and Welfare. 45 C.F.R. §§ 201.2 and 201.3. The plan must provide for the payment of the reasonable cost of inpatient hospital services in accordance with the standards and principles prescribed for the Medicare program. 42 U.S.C. § 1396a(a)(13)(D); 45 C.F.R. § 250.30(a)(2)(i).

Prior to 1969, the State of New York reimbursed hospitals on the basis of their actual costs. Finding that this was becoming increasingly expensive, the State, in May 1969, amended § 2807 of its Public Health Law to provide that payments must be reasonably related to the cost of the “efficient” production of the covered services. Hospital and nursing facilities were classified by groups, depending upon geographical location, size, etc., and each group was treated as a unit for the purpose of establishing rates. The institutions were thenceforth advised in advance of their proposed rate schedules so that they could plan their budgets accordingly. In order to accomplish this, a base year is used for the computation of actual costs; and adjustments are made thereafter, based upon intervening changes in costs and hospital related economic factors in the following so-called “trending” year, in order to establish the rate for the ensuing year.¹ Under this plan, the State does not reimburse nursing homes on the basis of their actual costs but pays, instead, at a prospective reimbursement rate which is reasonably related to the costs of the services performed. Broadacres Skilled Nursing Facility v. Ingraham, 51 A.D.2d 243, 245, 381 N.Y.S.2d 131 (3d Dept. 1976). The State believes that this accords with the provisions of § 1396a(a)(30) which requires the State to assure that payments “are not in excess of reasonable charges consistent with efficiency, economy, and quality of care”. See, e. g., Sigety v. Ingraham, 29 N.Y.2d 110, 116, 324 N.Y.S.2d 10, 272 N.E.2d 524 (1971).

In November 1975, the State amended 10 NYCRR § 86.21(k), enacted pursuant to Public Health Law § 2807, to provide as follows:

Effective for fiscal years ending in 1976 and thereafter, allowable costs per unit of service (inpatient day, clinic visit, etc.) in a base year will not include any cost increases over the prior year which are in excess of the inflation factor used by the Department in determining the reimbursement rate in effect during such base year unless the cost increases in the base year resulted in a rate revision during the rate year in accordance with Section 86.17.²

Although this regulation was intended to take effect on November 26, 1975, it was not approved by the Secretary of HEW as required by 42 U.S.C. § 1396a(b) until August 1976.³ In the meantime, on February 9, 1976, appellants commenced this action challenging the legality of the regulation. In their complaint, they sought judgment for the following relief:

(1) Declaring that, insofar as the regulation forbids full payment of the actual reasonable cost of inpatient services, “including the costs of reasonable employee wage and benefit increases negotiated in collective bargaining agreements”, it violates the Federal Medicaid statutes and regulations.

(2) Directing that, so long as New York State participates in the Medicaid plan, it must provide the full actual and current costs of inpatient services, including the costs of increases in employee wages and benefits negotiated in collective bargaining agreements.

(3) Declaring the regulation invalid as an encumbrance and restraint on collective bargaining under the United States Labor Management Relations Act.

(4) Enjoining the enforcement of the regulation and any other regulation which prohibits or restricts the payment of the actual reasonable current costs of health care services.

Following the service of their complaint, appellants moved for an order preliminarily enjoining the State from effectuating and enforcing the regulation. Instead of granting their motion, the District Court dismissed the complaint, holding that appellants were without standing to seek relief for alleged violations of 42 U.S.C. § 1396a and that the complaint failed to state a claim for alleged violation of the Labor Management Relations Act. It is this judgment which we affirm.

It has by now been well established that both welfare recipients and welfare providers (e. g., nursing homes) have standing to challenge alleged violations of the Social Security laws. Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Massachusetts General Hospital v. Sargent, 397 F.Supp. 1056, 1059 (D.Mass. 1975). However, we find nothing in the Federal Medicaid statutes and regulations which gives standing to the providers of the providers, i. e., employees, medical supply houses, laundries, etc. which service nursing homes. A comparison of this case with the Supreme Court’s recent decision in Singleton v. Wulff, supra, satisfies us that such right of suit does not exist.

In Singleton, two physicians brought suit against Missouri state officials challenging the constitutionality of a Missouri statute which denied Medicaid payments for abortions not “medically indicated”. The Court was unanimous in holding that, because the physicians, as providers, would be reimbursed under the Medicaid program if permitted to perform the proscribed abortions, the relationship between the parties was “classically adverse”, and a case or controversy existed. However, only five of the nine justices believed that the doctors were entitled to base a claim for relief upon the constitutional rights of their patients.

While recognizing that ordinarily one may not claim standing to vindicate the constitutional rights of a third party, Mr. Justice Blackmun, for himself and three other justices, stated that the court should look to two factual elements to determine whether an exception to the rule would be made. 428 U.S. at 114-16, 96 S.Ct. 2874-2875. The first involves the relationship between the plaintiff and the person whose right he seeks to assert. If that person’s enjoyment of the right in question is “inextricably bound up with the activity the litigant wishes to pursue”, and if the plaintiff “is fully, or very nearly, as effective a proponent of the right” as the person who possesses it, one factual element exists. Id. at 114-15, 96 S.Ct. at 2874. The other factual element involves the ability of the third party to assert his own right. If there is “some genuine obstacle to such assertion”, the plaintiff becomes by default the right’s best available proponent. Id. at 116, 96 S.Ct. at 2875. Although not joining this portion of Justice Blackmun’s opinion, Mr. Justice Stevens agreed that under the circumstances present in Singleton, the doctors could assert the constitutional rights of their patients.

Mr. Justice Powell, writing for himself, the Chief Justice, Justices Stewart and Rehnquist, dissented from the majority’s holding on this point. Justice Powell agreed that the general rule prohibits a party from attacking governmental action on the ground that it infringes the rights of some third party. He felt, however, that an exception to this rule should be made only when the third party’s assertion of his own rights “is in all practicable terms impossible”. Id. at 126, 96 S.Ct. at 2880.

Appellants herein are clearly not in the same position as the physician “providers” in Singleton. Although their contention that they will be damaged by State action which limits increases in Medicaid payments to nursing homes may be accepted as true, the statutory and constitutional rights which they are seeking to assert are solely those of the homes. Medicaid makes no provision for payment to nursing home employees or their unions. Appellants claim, therefore, “falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975).

Moreover, no factual elements exist which would bring appellants’ claim within the exceptions to this rule recognized by either Justice Blackmun or Justice Powell in Singleton. The principles formulated for reimbursement of nursing home services are required to give recognition to such factors as depreciation, interest, bad debts, educational costs, compensation of owners, allowances for reasonable return on equity capital of proprietary facilities, services of unpaid workers, discounts and allowances, etc. 20 C.F.R. § 405.402. The interests of the homes and appellants are not inextricably bound together in these matters. Moreover, appellants would not be nearly as effective proponents of the rights of the nursing homes in these areas as would the homes themselves. Finally, there is nothing to suggest that there is any “genuine obstacle” to the nursing homes’ assertion of their own rights or that such assertion is “in practicable terms impossible”. Indeed, a review of the published opinions shows that nursing homes have been active advocates on their own behalf. See, e. g., Sigety v. Ingraham, supra; Broadacres Skilled Nursing Facility v. Ingraham, supra; Board of Monroe Community Hospital v. Ingraham, 80 Misc.2d 950, 364 N.Y.S.2d 795 (Sup. Ct.1975). In short, while union and employer, like the proverbial lion and lamb, may coexist in negotiated peace, we see nothing in this relationship which empowers the union to litigate with the State concerning the nature and extent of the employer’s Medicaid rights.

Appellants’ claim of Labor Law violation is completely without substance. There is no requirement under the New York plan that any home accept patients at the announced rates. If they find that they cannot realize a profit, they have the choice of either making their operation more efficient or not accepting Medicaid patients. Sigety v. Ingraham, supra, 29 N.Y.2d at 115, 324 N.Y.S.2d 10, 272 N.E.2d 524. Appellants, adopting the philosophy that the tail should be able to wag the dog, wish to negotiate higher wages for nursing home employees and then force the State to pay for them. With one New York county after another teetering on the brink of financial disaster because of State enforced Medicare and Medicaid contributions,⁴ adoption of appellants’ proposed course of action could well furnish the final impetus leading to financial chaos. We see nothing in the Labor Management Relations Act of 1947, 29 U.S.C. § 141 et seq., which mandates such a result.

The announced purposes of that act are to prescribe the legitimate rights of employees and employers, to prevent the interference by either with the legitimate rights of the other, and to define and proscribe practices on the part of labor and management which are inimical to the general welfare. 29 U.S.C. § 141. Under the Act, it is the employer who is precluded from interfering with the employee’s right to bargain collectively, 29 U.S.C. § 158(a), and the NLRB is empowered to prevent any such unfair labor practice. 29 U.S.C. § 160. There is nothing in the Act which requires a third person to advance an employer sufficient funds to reimburse him for wage increases reached as the result of collective bargaining, and no unfair labor practice results from the failure to do so. Insofar as appellants’ complaint alleges a conflict between the Medicaid regulations and the Labor Management Relations Act, it fails to state a claim and was properly dismissed.

Appellants argue finally that the complaint should not have been dismissed without their being given leave to amend. However, no request for such relief was made to the District Court. See Swan v. Board of Higher Education of the City of New York, 319 F.2d 56, 61 (2d Cir. 1963). Moreover, appellants fail to disclose what additional allegations they would make which might lead to a different result. Absent some indication as to what appellants might add to their complaint in order to make it viable, see Christophides v. Porco, 289 F.Supp. 403, 408 (S.D.N.Y.1968), we see no reason to grant appellants relief in this Court which was not requested below.

The judgment appealed from is affirmed.

1 . For a general discussion of the New York plan see Presbyterian Hospital in the City of New York v. Ingraham, 48 A.D.2d 491, 369 N.Y.S.2d 738 (1st Dept. 1975), aff'd, 39 N.Y.2d 867, 386 N.Y.S.2d 217, 352 N.E.2d 135 (1976).

2 . 10 NYCRR § 86.17 provides:

(a) The State Commissioner of Health may consider only those applications for prospective revisions of certified rates which are based on

(1) requests for revisions in 1975 reimbursement rates for cost increases incurred prior to the effective date of this section;

(2) errors made in the rate computation process or in the submission by a medical facility which have been brought to the attention of the Commissioner within the time limits prescribed in Section 86.16;

(3) significant increases in the over-all operating costs of a medical facility resulting from the implementation of additional programs, staff or services specifically mandated for the facility by the Commissioner;

(4) significant increases in the overall operating costs of a medical facility resulting from capital renovation, expansion, replacement or the inclusion of new programs, staff or services approved for the medical facility by the Commissioner;

(5) requests for waivers of any provisions of Part 36 for which waivers may be granted by the Commissioner as prescribed in specific sections; and

(6) changes in the method of providing services which result in a lower over-all cost for the services provided.

3 . 45 C.F.R. § 201.3 provides that after approval of an original State plan by the Department of Health, Education and Welfare “all relevant changes, required by new statutes, rules, regulations, interpretations, and court decisions, are required to be submitted currently so that the [Department] may determine whether the plan continues to meet Federal Requirements and policies.”

4 . Under the New York State Medicaid plan, N.Y. Social Services Law § 363, et seq., (McKinney 1976), the major responsibility for providing medical assistance lies with the local social services districts. N.Y. Social Services Law § 365 (McKinney 1976). While the State provides some reimbursement for the funds expended by these agencies, the local contribution to Medicaid is substantial. N.Y. Social Services Law § 368-a, subd. 3(d) (McKinney 1976).