United States District Court, E.D. Kentucky, Northern Division
DIVERSICARE d/b/a SOUTH SHORE NURSING AND REHABILITATION CENTER, As Authorized Representative of WILMA FRYER, PLAINTIFF,
VICKIE YATES BROWN GLISSON, in her official capacity as the Secretary of the KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, DEFENDANT,
MEMORANDUM OPINION AND ORDER
R. WILHOIT, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court Defendant's Motion to Dismiss
Complaint, For Judgment on the Pleadings or for Summary
Judgment [Docket No. 15]. The matter has been fully briefed
by the parties [Docket Nos. 15, 16 and 17]. For the reasons
set forth herein, the Court finds that it lacks subject
matter jurisdiction over this matter and, therefore,
dismissal is warranted.
civil action arises from Plaintiff Diversicare d/b/a South
Shore Nursing and Rehabilitation Center's ("South
Shore") efforts to obtain reimbursement from Medicare
for the nursing home care it provided to Wilma Fryer. It
generally alleges that Defendant Vickie Yates Brown Glisson,
as the Secretary for the Kentucky Cabinet for Health and
Family Seivices ("CHFS") failed to comply with its
obligation to secure Medicaid benefits for residents in
long-term care facilities. Specifically, it claims that
Defendant's alleged failure to comply with both Kentucky
and Federal law to determine Medicaid benefits to Plaintiff
while receiving care at a skilled nursing facility is a
violation of the Federal Medicaid Act at 42 U.S.C. §
1396a (a)(17)(b) (1988); 20 CFR § 416.1201(a)(1); the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution; the Americans with Disabilities Act
("ADA"), 42 U.S.C, § 12131 et seq.,
the Rehabilitation Act of 1973, 29 U.S.C. § 794a, et
salient facts of this case are not in dispute. Plaintiff is a
limited liability with its principal place of business, a
nursing home, in South Shore, Kentucky. [First Amended
Complaint, Docket No. 11, ¶7].
March 11, 2014, Wilma Fryer became a resident of South Shore.
She was admitted with diagnoses of dementia, weakness and
other life limiting medical conditions. At the time of her
admission, Ms. Fryer was incapacitated and during her
admission became insolvent and unable to pay for her skilled
nursing care. Id. at ¶ 11.
application for Medicaid benefits was submitted in May of
2014. Id. at ¶ 12. Ms. Fryer and her son, Jerry
Coffee attempted to obtain the documentation needed for the
application. Id. At the time of Ms. Fryer's
application, however, Mr. Coffee did not possess Power of
Attorney or Guardianship authority, and as such, he was
unable to obtain the bank records, insurance verifications or
any other documents that the Department of Community Based
Services (DCBS), a Department within CHFS, required to
process Ms. Flyer's application for benefits. At that
time, verifications were inaccessible by Ms. Fryer due to her
medical condition, and unavailable to anyone acting on her
behalf. Id. at ¶ 13.
Mr. Coffee petitioned for Guardianship and obtained
appointment as Guardian on July 25, 2014. Id. at
September 23, 2014, South Shore's business manager, Joe
Staley applied for long term Medicaid benefits on behalf of
Ms. Fryer, triggering the need for a resource assessment.
CHFS's local Family Support workers requested South Shore
produce various records needed to verify her eligibility. On
September 24, 2014, Ms. Staley faxed 11 pages of records to
CHFS consisting of Ms. Fryer's bank statement from a
closed joint bank account Ms. Fryer had with her son, and
documentation about the payoff history of the mortgage loan
showing the net proceeds Ms. Fryer received when her home was
sold. But CHFS also needed additional bank records to verify
the net proceeds from the sale was deposited into Ms.
Fryer's savings account and then spent down for her
nursing home care, until she reached the $2000 nonexempt
asset eligibility threshold.
employee named Amanda Woods testified at the administrative
hearing she sent multiple Request for Information
("RF1") forms to Ms. Staley. Ms. Woods testified
she deferred taking action on Ms, Fryer's Medicaid
application to give her representatives more time to obtain
the records. Fryer's son gathered documents and emailed
them to Ms. Staley at South Shore, He later told a Kentucky
probate court it was not his fault if South Shore did not
Fryer passed away on October 23, 2014. Id., at
¶ 21. At the time of her death, her Medicaid application
was still pending.
November 24, 2014, Wilma Fryer's children petitioned a
Kentucky probate court to dispense with administration
because her only assets were a 1999 Jeep Grand Cherokee
valued at $500, and $1, 395 remaining in her checking
account. The probate court granted the motion.
Woods sent three "we need information" letters sent
to the Fryer's to let them know she could not complete
the resource assessment but giving them more time. The
initial deadline was October 23, 2014, later extended to
November 10, and then December 4, 2014 for South Shore and
Ms. Flyer's family to furnish CHFS with the needed
financial documentation. [Docket No. 15-3].
December 9, 2014, after the last deadline lapsed, Ms. Woods
notified South Shore Ms. Fryer's Medicaid application was
denied for lack of complete ...