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Diversicare v. Glisson

United States District Court, E.D. Kentucky, Northern Division

October 27, 2017

DIVERSICARE d/b/a SOUTH SHORE NURSING AND REHABILITATION CENTER, As Authorized Representative of WILMA FRYER, PLAINTIFF,
v.
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

          HENRY R. WILHOIT, JR. UNITED STATES DISTRICT JUDGE.

         This 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.

         I.

         This 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 seq.

         The 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].

         On 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.

         Her 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.

         Subsequently, Mr. Coffee petitioned for Guardianship and obtained appointment as Guardian on July 25, 2014. Id. at ¶ 14.

         On 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.

         A CHFS 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 forward them.

         Ms. Fryer passed away on October 23, 2014. Id., at ¶ 21. At the time of her death, her Medicaid application was still pending.

         On 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.

         Ms. 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].

         On December 9, 2014, after the last deadline lapsed, Ms. Woods notified South Shore Ms. Fryer's Medicaid application was denied for lack of complete ...


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