Opinion
No. CV03 052 02 65 S
June 7, 2005
MEMORANDUM OF DECISION
ISSUE
Whether court-ordered child support payments may be included as available income for purposes of calculating medicaid benefits.
FACTS
This is an administrative appeal from a final decision of the department of social services brought pursuant to General Statutes §§ 17b-61 and 4-183. The plaintiff, Noreen Turley, appeals the defendant's determination that, for purposes of calculating medicaid benefits, the plaintiff's available income includes an amount that she was previously ordered by the Probate Court to pay for the support of her dependent child. The record reveals the following facts. The plaintiff is a disabled individual living in a long-term care facility. (Return of Record [ROR], p. 2.) She is the sole parent of a dependent child who is cared for by co-guardians. (ROR, P. 2.) In July 2002, the Probate Court issued an order directing that part of the plaintiff's monthly income be used for the support of her child. (ROR, P. 2.) In August 2002, the defendant found the plaintiff eligible for medicaid benefits and calculated the income upon which her benefits will be based by including as available income the amount previously ordered by the Probate Court to be used for her child's support. (ROR, P. 2.) The plaintiff petitioned for an administrative hearing on September 24, 2002, which began on October 29, 2002, more than 30 days after the plaintiff's request. (ROR, pp. 2-3.) After a hearing, which closed on November 27, 2002, the hearing officer upheld the defendant's determination of available income in a decision issued January 30, 2003. (ROR, pp. 1-6) The hearing officer's decision was not rendered within 60 days of the hearing. The plaintiff now brings this administrative appeal, in which she requests that the defendant be directed to calculate her available income without including the amount ordered by the court for child support.
General Statutes § 17b-61(b) permits an aggrieved person to appeal from a decision rendered after a hearing, in accordance with General Statutes § 4-183. "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).
General Statutes § 17b-61(b) provides in relevant part: "The applicant for such hearing, if aggrieved, may appeal therefrom in accordance with section 4-183." General Statutes § 4-183(a) provides in relevant part: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section."
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Seymour v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002).
In this case, the plaintiff's specific financial interest was negatively affected when the defendant determined that the income available to her for calculation of medicaid benefits includes money subject to a preexisting court order. The plaintiff is therefore aggrieved and the court has jurisdiction over the subject matter of this appeal.
General Statutes § 4-183(c) requires the appeal to be served and filed within forty-five days of the mailing of the final decision. The return of record reveals that the notice of the hearing officer's decision was mailed, by certified mail, to the plaintiff on February 8, 2003. The appeal was served on February 26, 2003 and filed on March 3, 2003. The court finds that the appeal was perfected in a timely manner.
STANDARD OF REVIEW
"We begin by articulating the applicable standard of review in an appeal from the decision of an administrative agency. Judicial review of [an administrative agency's] action is governed by the [Uniform Administrative Procedure Act at § 4-166 et seq.] . . . and the scope of that review is very restricted . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency . . . Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P v. Commissioner of Environmental Protection, 253 Conn. 661, 668-69, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).
DISCUSSION I
"Our analysis begins with an overview of the medicaid program. The program, which was established in 1965 as Title XIX of the Social Security Act and is codified at 42 U.S.C. § 1396 et seq. (medicaid act), is a joint federal-state venture providing financial assistance to persons whose income and resources are inadequate to meet the costs of, among other things, medically necessary nursing facility . . . The federal government shares the costs of medicaid with those states that elect to participate in the program, and, in return, the states are required to comply with requirements imposed by the medicaid act and by the secretary of the Department of Health and Human Services . . . Specifically, participating states are required to develop a plan, approved by the secretary of health and human services, containing reasonable standards . . . for determining eligibility for and the extent of medical assistance to be provided." (Citations omitted; internal quotation marks omitted.) Ahern v. Thomas, 248 Conn. 708, 713, 733 A.2d 756 (1999).
"Connecticut has elected to participate in the medicaid program and has assigned to the department [of social services] the task of administering the program . . . The department, as part of its uniform policy manual, has promulgated regulations governing the administration of Connecticut's medicaid system. See General Statutes § 17b-260." (Citations omitted; internal quotation marks omitted.) Burinskas v. Dept. of Social Services, 240 Conn. 141, 148, 691 A.2d 586 (1997).
"In determining an individual's eligibility for medicaid benefits, the commissioner may take into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary [of health and human services], available to the applicant or recipient . . . (Emphasis added.) 42 U.S.C. § 1396a(a)(17)(B)." (Internal quotation marks omitted.) Clark v. Commissioner, 209 Conn. 390, 397, 551 A.2d 729 (1988). "The Secretary's regulations require that an `agency must reduce its payment to an institution, for services provided to an individual . . . by the amount that remains after deducting the amounts specified in paragraph (c) of this section, from the individual's income.' (Emphasis added.) 42 C.F.R. § 435.832(a). Paragraph (c) specifically lists only four amounts an agency may deduct from a `medically needy' applicant's total income: (1) a personal needs allowance; (2) an at-home spousal allowance; (3) an at-home family allowance; and (4) medical or remedial expenses not paid by third parties. 42 C.F.R. § 435.832(c)." Clark v. Commissioner, supra, 209 Conn. 398.
In Clark, the court relied upon federal regulations found at 42 C.F.R. § 435.832, which govern the post-eligibility treatment of income of institutionalized individuals. In this case, the defendant applied federal regulations found at CT Page 9526 42 C.F.R. § 435.733. This reliance on different regulations does not affect the applicability of the court's analysis in Clark to this case, however, because the two sets of regulations are identical for all relevant purposes. See Clark v. Commissioner, supra, 209 Conn. 400 n. 10 (noting the interchangeability of the regulations).
42 C.F.R. § 435.832 provides in relevant part: "(a) Basic rules. (1) The agency must reduce its payment to an institution, for services provided to an individual specified in paragraph (b) of this section, by the amount that remains after deducting the amounts specified in paragraphs (c) and (d) of this section, from the individual's total income.
. . .
(c) Required deductions. The agency must deduct the following amounts, in the following order, from the individual's total income, as determined under paragraph (e) of this section. Income that was disregarded in determining eligibility must be considered in this process.
. . .
(3) Maintenance needs of family. For an individual with a family at home, an additional amount for the maintenance needs of the family. This amount must —
(i) Be based on a reasonable assessment of their financial need;
(ii) Be adjusted for the number of family members living in the home; and
(iii) Not exceed the highest of the following need standards for a family of the same size:
(A) The standard used to determine eligibility under the State's approved AFDC plan.
(B) The medically needy income standard established under § 435.811.
42 C.F.R. § 435.733 provides in relevant part: "(a) Basic rules. (1) The agency must reduce its payment to an institution, for services provided to an individual specified in paragraph (b) of this section, by the amount that remains after deducting the amounts specified in paragraphs (c) and (d) of this section, from the individual's total income.
. . .
(c) Required deductions. The agency must deduct the following amounts, in the following order, from the individual's total income, as determined under paragraph (e) of this section. Income that was disregarded in determining eligibility must be considered in this process.
. . .
(3) Maintenance needs of family. For an individual with a family at home, an additional amount for the maintenance needs of the family. This amount must —
(i) Be based on a reasonable assessment of their financial need;
(ii) Be adjusted for the number of family members living in the home; and
(iii) Not exceed the higher of the need standard for a family of the same size used to determine eligibility under the State's approved AFDC plan or the medically needy income standard established under § 435.811, if the agency provides Medicaid under the medically needy coverage option for a family of the same size.
Connecticut's regulations governing its administration of the medicaid program are found in the defendant's Uniform Policy Manual, including section 5035.20, which applies the federal regulations for determination of benefits for applicants who do not have a spouse living in the community. The state regulation allows a deduction of income for residents of long-term care facilities to pay for the support of a family member at home in an amount sufficient to bring the family member's income to a specific level, based on the size of the family.
Section 5035.20 of the Uniform Policy Manual provides in relevant part: "For residents of long-term care facilities (LTCF) . . . when the individual does not have a spouse living in the community, total gross income is adjusted by certain deductions to calculate the amount of income which is to be applied to the monthly cost of care.
B . . . The following monthly deductions are allowed from the income of assistance units in LTCFs:
"3. an amount of income diverted to meet the needs of a family member who is in a community home to the extent of increasing his or her income to the [medically needy income limit] which corresponds to the size of the family."
The plaintiff raises three grounds on appeal. First, the plaintiff asserts that the defendant illegally determined that the plaintiff's available income includes the amount that she was previously ordered by the Probate Court to pay for her son's support. The plaintiff asserts that the decision violates the defendant's regulations and statutory authority, is clearly erroneous, is arbitrary, capricious or an abuse of discretion. Second, the plaintiff contends that because the defendant failed to schedule a hearing by the statutory deadline, the plaintiff should prevail on the merits. Finally, the plaintiff similarly contends that she should prevail on the merits because the defendant failed to issue its decision by the statutory deadline.
In support of her first ground for appeal, that the defendant's determination of her available income was illegal, the plaintiff makes two primary arguments. First, the plaintiff argues that inclusion of the income subject to the child support order denies proper legal effect to a valid Probate Court order. The Supreme Court in Clark v. Commissioner, supra, 209 Conn. 390, considered and rejected a nearly identical argument. In Clark, the plaintiff appealed the inclusion in available income of an amount that the Probate Court previously ordered be paid for the support of an at-home spouse. The court rejected the plaintiff's argument that inclusion of the support amount in available income illegally disregarded the Probate Court order. The court stated, "In our view, the plaintiff misconstrues the issue in this case. The Probate Court undoubtedly has the authority to enter an enforceable spousal support order. This case, however, concerns whether the defendant must consider that court order in determining an applicant's eligibility for the federally funded medicaid program. We hold that he need not, indeed that he cannot." Clark v. Commissioner, supra, 209 Conn. 397.
The plaintiff properly notes that the Probate Court is legally authorized to issue child support orders pursuant to § 45a-655, which provides in relevant part:
(a) . . . The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward and those members of the ward's family whom he or she has the legal duty to support and to pay the ward's debts, and may sue for and collect all debts due the ward.
The court then examined the federal regulations setting forth the permissible deductions from available income and determined that the regulations did not permit the defendant to allow deductions other than those expressly listed. Because court-ordered spousal support payments were not listed among the permitted deductions, the court held, that income could not properly be excluded from available income under federal law. Id., 403. "Available" income, the court determined, includes all income actually received, even if it is legally obligated to be paid for other purposes, unless federal law expressly permits its exclusion. Id. The court in Clark further noted that the federal regulations already provide an exclusion for spousal support but not for court-ordered support payments and, thus, the defendant correctly refused to exclude the income. Id., 404.
The court's reasoning in Clark applies with equal force to the present case. Although the plaintiff's income is subject to a child support order by the Probate Court, the defendant is not required to, and indeed is not permitted to, exclude the income subject to the order unless federal law authorizes its exclusion. By its terms, federal law does not permit the exclusion of court-ordered child support payments. Federal regulations do allow a deduction for the maintenance needs of at-home family members. 42 C.F.R. § 435.733(c)(3). That deduction, as interpreted by the defendant at Uniform Policy Manual § 5035.20, was applied in this case. (ROR, pp. 3-4) The defendant did not, however, exclude from available income the court-ordered support because the child's other income exceeded the amount permitted by the state regulations for the at-home family member. Id. As in Clark, the deductions permitted by federal law do not include any other category that could encompass the court-ordered support payments.
The plaintiff invokes principles of comity and the full faith and credit clause of the United States constitution to argue that the defendant should be bound by the decision of the Probate Court. While acknowledging that these concepts apply to judgments and proceedings from other states, the plaintiff appears to use these principles to make the analogous argument that Probate Court orders are due respect by other courts and branches of government. While undoubtedly true, the court's order in this case, requiring the plaintiff to pay a portion of her income to support her child, does not limit the defendant's ability to determine the amount of the plaintiff's income that is available for medicaid purposes. The medicaid program is voluntary but once a state elects to participate and to receive federal funds, the state is required to administer the program in compliance with federal law. The Probate Court order notwithstanding, the defendant was required to determine the plaintiff's available income according to the limitations of federal law.
The plaintiff repeatedly asserts that the defendant is required to exclude the income because the defendant had notice and opportunity to appear in Probate Court before the order issued and the defendant failed to do so. The Supreme Court again considered a similar argument in Clark v. Commissioner, supra, 209 Conn. 406 n. 18. The court stated that, while the defendant agency arguably could have intervened in the Probate Court proceedings, "we question the need to force the defendant to collaterally attack such court orders, especially when the defendant has his own federally mandated mechanism for determining at-home spousal support." Similarly, the defendant in this case was not a party to the Probate Court proceedings and federal law requires the defendant to determine income without regard to court-ordered payments. Because the Probate Court proceedings did not affect the defendant directly and would not impact its ability to determine the benefits to which the plaintiff is entitled under federal law, the defendant properly declined to intervene in the Probate Court proceedings. The plaintiff argues that Clark is distinguishable on this point because the plaintiff in that case had not yet applied for medicaid when the court order issued, whereas the plaintiff here had applied prior to the Probate Court's child support orders. This difference does not change the analysis. Even if the defendant had been present at the Probate Court proceedings and objected to the issuance of the order, the court's order would not alter the defendant's legal obligation to administer the medicaid program according to federal requirements. Thus, the defendant's failure to appear at the Probate Court does not now require the defendant to accept the order as binding upon its calculation of benefits when to do so may contravene federal law.
The plaintiff's second primary argument appears to be that the defendant should exclude the income used for child support payments because public policy favors supporting children. The plaintiff specifically argues that federal law prioritizes child support through the Family Support Act of 1988, 42 U.S.C. § 666, and because of that policy priority, the plaintiff implies, the defendant should exclude the entire amount of court-ordered child support. The plaintiff has not presented any statutory evidence, however, to support the implication of a deduction in addition to those deductions expressly provided by the regulations. In Clark, the plaintiff similarly argued that the federal exclusions are not exclusive and that the defendant may choose to exclude more income than dictated by federal law. The court responded, "Nothing before us indicates that the state has chosen to do so and, further, given the mandate of [the federal regulations], we doubt whether the state has an option to broaden permissible exclusions from an applicant's income." Clark v. Commission, supra, 209 Conn. 403 n. 12. The defendant in this case allowed the exclusion from income for child support as expressly permitted by federal law but did not go beyond that authorization to exclude the full amount of the court-ordered child support payments. The court cannot conclude that, as a matter of law, the defendant was required to exceed the limits set forth in the controlling federal regulations based on public policy discerned from unrelated portions of the vast body of federal law.
The Massachusetts Supreme Judicial Court recently considered the issue presented here, whether court-ordered child support payments were properly included in available income for the purposes of determining medicaid benefits. In Tarin v. Commissioner, 424 Mass. 743, 678 N.E.2d 146 (1997), the court held that the institutionalized applicant's child support payments were properly included in his available income during the state medicaid agency's calculation of his medicaid benefits. The court permitted the inclusion despite the fact that, because of his divorced status, the applicant was permitted no deduction whatsoever for support of his children, unlike the present case in which a family support deduction was applied. The Massachusetts court concluded that the federal regulations do not expressly permit a deduction for court-ordered child support and that the state agency reasonably exercised its judgment in declining to adopt such a deduction.
The United States Court of Appeals for the Second Circuit also has considered a closely related issue in Himes v. Shalala, 999 F.2d 684 (2d Cir. 1993). The court approved a state medicaid plan that changed existing law to include court-ordered support payments as available income. The court found that the change in the state plan was a reasonable response to the federal medicaid agency's interpretation of "available income," and that the federal agency's interpretation of federal law warranted the court's deference.
The plaintiff argues that two cases from the United States Court of Appeals for the Ninth Circuit support her claim for exclusion of the court-ordered child support payments. The federal appeals court held in the more recent case, Peura v. Mala, 977 F.2d 484 (9th Cir. 1992), that the Alaska medicaid agency properly included as "available income" funds used for court-ordered child support for purposes of determining medicaid benefits. The plaintiff argues that the Peura court permitted the inclusion of these payments because the divorce court did not appear to have considered the purposes and limitations of the medicaid program when issuing its order. The plaintiff argues that the payments here should be excluded because the Probate Court did consider the plaintiff's pending medicaid application, thereby implying that the Peura court would have disallowed the inclusion of such funds if the court ordering the payments did explicitly make such a consideration. The Peura opinion does not support the plaintiff's interpretation, however. The court, in the course of distinguishing a prior decision, noted that the divorce court apparently had not considered medicaid's congressional purposes but that "it is questionable whether this would have been an appropriate consideration for the court Indeed, we think it unlikely that Congress would intend the full amount of any child support obligation to be excluded from the `available' income of a Medicaid applicant or recipient simply because the amount has been ordered by a court. Such an approach could easily lead to unintended subsidization of a disproportionate amount of health care benefits." Id., 490.
Even if the plaintiff's interpretation of the Ninth Circuit case law were correct, it would not apply to the present case. The record does not support the contention that the Probate Court considered the "purposes and limitations" of the medicaid program in issuing the child support order. The Probate Court decree orders the payment of all the plaintiff's income for the support of her son, with the exception of certain deductions, including "any Personal Needs Allowance permitted under the Medicaid/Title XIX Program." (ROR, p. 31). The decree contains no indication, however, that the court conducted a substantive analysis of the medicaid program prior to issuing the order.
The plaintiff also relies on the prior Ninth Circuit case that was distinguished by the Peura court, Whaley v. Schweiker, 663 F.2d 871 (9th Cir. 1981), in which the court held that the state agency improperly calculated social security benefits by including in available income a portion of the plaintiff's veterans' benefits designated for child support. In Peura, the court distinguished Whaley by noting that the Whaley court's decision was strongly influenced by the court's analysis of congressional intent behind the provision of veterans' benefits and supplemental security income. As previously noted, the Peura court questioned the propriety of such an analysis in the context of court-ordered child support payments. Thus, the Ninth Circuit precedent would not justify requiring the defendant here to exclude the court-ordered payment income even if the Probate Court had examined the intent of the medicaid statutes to justify the issuance of the child support order.
Accordingly, the court concludes that the defendant properly included in the plaintiff's available income the amount of child support which she was ordered to pay by the Probate Court.
II A
The plaintiff's second and third grounds for appeal are based on fact that the defendant failed to meet deadlines found in two state laws. The defendant did not schedule a hearing within thirty days of the plaintiff's request as required by General Statutes § 17b-60 and the defendant's hearing officer did not issue a final decision within sixty days of the hearing as required by General Statutes § 17b-61(a). As a result, the defendant failed to take final definitive administrative action within ninety days of the plaintiff's request for a hearing as required by § 17b-61(a). The plaintiff contends that these deadlines are mandatory and the defendant's failure to meet them should render its decision void and result in relief for the plaintiff on the merits of her appeal. The defendant counters that the statutory deadlines are directory, not mandatory, and that the plaintiff has not claimed any prejudice as a result of the delays.
General Statutes § 17b-60 provides in relevant part: "An aggrieved person authorized by law to request a fair hearing on a decision of the Commissioner of Social Services or the conservator of any such person on his behalf may make application for such hearing in writing over his signature to the commissioner and shall state in such application in simple language the reasons why he claims to be aggrieved. Such application shall be mailed to the commissioner within sixty days after the rendition of such decision. The commissioner shall thereupon hold a fair hearing within thirty days from receipt thereof and shall, at least ten days prior to the date of such hearing, mail a notice, giving the time and place thereof, to such aggrieved person, or if the application concerns a denial of or failure to provide emergency housing, the commissioner shall hold a fair hearing within four business days from receipt thereof, and shall make all reasonable efforts to provide notice of the time and place of the fair hearing to such aggrieved person at least one business day prior to said hearing."
General Statutes § 17b-61 provides in relevant part: "(a) Not later than sixty days after such hearing, or three business days if the hearing concerns a denial of or failure to provide emergency housing, the commissioner or his designated hearing officer shall render a final decision based upon all the evidence introduced before him and applying all pertinent provisions of law, regulations and departmental policy, and such final decision shall supersede the decision made without a hearing, provided final definitive administrative action shall be taken by the commissioner or his designee within ninety days after the request of such hearing pursuant to section 17b-60. Notice of such final decision shall be given to the aggrieved person by mailing him a copy thereof within one business day of its rendition. Such decision after hearing shall be final except as provided in subsections (b) and (c) of this section."
In Persico v. Maher, 191 Conn. 384, 405-08, 465 A.2d 308 (1983), the Connecticut Supreme Court considered whether the defendant department of social services' failure to issue a decision within ninety days of the plaintiff's request for a hearing required the defendant to grant the relief requested by the plaintiff. The plaintiff requested a hearing after the defendant decided that the plaintiff's son's medicaid benefits did not include medically necessary orthodontia. The hearing officer's decision was issued 136 days after the request for the hearing. The court first noted that 42 U.S.C. § 1396a(a)(3) requires state medicaid plans to "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." Id., 406. Next, the court noted that federal medicaid regulations required the agency to take final administrative action within ninety days of the request for a hearing; 42 C.F.R. § 431.244(f); and that the ninety-day deadline found at General Statutes § 17b-61 (formerly codified as § 17-2b) tracked the language of the federal regulation. Id., 406-07.
The court next looked to a federal district court decision concerning a similar ninety-day rule applicable to other portions of the Social Security Act. In Labbe v. Norton, United States District Court, Civil Docket No. H-136 (D.Conn. November 4, 1974), the court ordered the defendant to grant the requested relief where the agency failed to take final administrative action within ninety days of the hearing request. The Supreme Court held in Persico that the same rule applied to the federal regulation and state statute at issue there and that the defendant could be required to grant the requested relief where it failed to meet the ninety-day deadline. Id., 407.
The court remanded to allow the defendant to present evidence that the delay was caused by the plaintiff's actions, which the court held was a valid defense under the Labbe rule. Persico v. Maher, supra, 191 Conn. 407-08. The defendant does not allege delay by the plaintiff in this case.
The defendant here argues that Persico is not dispositive of this appeal for three reasons. First, the defendant argues that the language of the regulation was amended since the court's decision in Persico, making clear that the regulation does not require each individual eligibility determination to be made within a certain time frame. Second, the defendant argues that federal case law since Persico has clarified when a statute or regulation gives rise to an enforceable right and that this statute and regulation do not satisfy those requirements. Finally, the defendant argues that enforcement of the deadlines is not appropriate because the defendant is not guilty of "substantial noncompliance" by chronically missing the deadlines and because the plaintiff suffered no prejudice from the delays.
The defendant's last argument is the simplest to resolve. In Persico, there was no indication of substantial noncompliance by the defendant or prejudice to the plaintiff and no indication by the court that those issues were relevant to its analysis. While substantial noncompliance was a concern of the federal court in Labbe, upon which the Persico court based its decision, the Persico court's failure to discuss substantial noncompliance or prejudice indicates that neither was a factor in the court's decision and thus neither may serve as a means by which to distinguish the present appeal from the holding in Persico.
Before examining the defendant's argument concerning the amendment to the regulation, it is appropriate first to consider the argument that changes in federal law since Persico dictate a modified approach to analyzing regulations and underlying statutes for enforceable rights.
The United States Supreme Court considered whether a regulation can give rise to an implied private right of action in Alexander v. Sandoval, 532 U.S. 275, 291, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), holding that "[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not." In Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), the court confirmed this principle in the context of an action brought pursuant to 42 U.S.C. § 1983, holding that the determination of whether a statutory violation can be enforced through § 1983 will depend upon "whether Congress intended to create a federal right." To guide the court's determination of such intent, the court reiterated the applicability of the three factors previously set forth in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997): (1) whether Congress intended that the provision benefit the plaintiff; (2) whether the statutory right is so "vague and amorphous" that enforcement would strain judicial competence; and (3) whether the provision is couched in mandatory, rather than precatory, terms. Id., 282. The court emphasized, however, that "anything short of an unambiguously conferred right" will not support a cause of action. Id., 283.
Moreover, the court indicated that the proper analysis for determining whether an enforceable right exists does not depend upon enforcement mechanism upon which the plaintiff relies. "[W]e . . . reject the notion that our implied right of action cases are separate and distinct from our § 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983." Id.
Here the plaintiff does not bring an independent cause of action under either the substantive statutes or § 1983, but she does contend that the deadlines found in state and federal law are enforceable by her on appeal and their violation should result in the defendant being required to grant the relief she requests. Because she seeks to enforce privately a mandate found in federal regulation, the federal analysis described above for determining the existence of enforceable rights of action appropriately guides the court's consideration of the issue presented in this appeal.
Because a regulation cannot, by itself, create an enforceable right, the court first considers the statute underlying the regulation. In this case, the regulation setting forth the ninety-day deadline, 42 C.F.R. § 431.244(f), is enacted pursuant to statutory requirement for a fair hearing found in 42 U.S.C. § 1396a. Specifically, the statute requires that a state medicaid plan 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). A search of federal case law has revealed only one federal court decision issued after Gonzaga concerning the enforceability of the fair hearing mandate of § 1396a(a)(3). In Gean v. Hattaway, 330 F.3d 758, 772-73 (6th Cir. 2003), the court held that the plaintiffs could bring a claim under § 1983 for violation of the fair hearing requirement because the statute creates an obligation on the part of the state, is phrased in terms if benefitting Medicaid recipients, and "given that the judiciary regularly determines whether an individual has been afforded procedural due process rights, a right to a fair hearing is not so vague and amorphous that its enforcement is beyond the abilities of a competent judiciary." The court's analysis is brief, lacks discussion of the United States Supreme Court's decision in Gonzaga, and, most importantly, does not consider whether the statute contains unambiguous rights-creating language, which is central to the Gonzaga analysis. Nevertheless, this court accepts the guidance provided by this federal appeals court decision, which constitutes the only precedent available to the court, and concludes that the language of § 1396a(a)(3) is sufficient to give rise to a privately enforceable cause of action. See Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir. 2004) (applying Gonzaga and holding that medicaid provision requiring provision of transitional medical assistance creates § 1983 action); Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004) (applying Gonzaga analysis and concluding that section of medicaid statutes requiring provision of medical assistance with "reasonable promptness" gives rise to § 1983 action); Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir. 2002) (same).
That language of § 1396a(a)(3), however, does not require states to issue its decisions within ninety days of the request for a hearing. That requirement is found at 42 C.F.R. § 431.244(f), a regulation promulgated pursuant to the statute. Federal appeals courts' decisions after Gonzaga uniformly agree that a regulation alone cannot give rise to an enforceable right. See, e.g., Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir. 2003) ("We believe the Supreme Court's Sandoval and Gonzaga decisions, taken together, compel the conclusion we reach today: that agency regulations cannot independently create rights enforceable through § 1983."); Chaffin v. Kansas State Fair Board, 348 F.3d 850, 858 (10th Cir. 2003) (regulation enforceable because does not expand enforceable rights under statute).
Private enforcement of a regulation is permissible only when "the agency rule is within the scope of — i.e., construes, fleshes out, or fills in the interstices of — a personal right that the enabling statute creates," (Emphasis in original.) Three Rivers Center for Independent Living, Inc. v. Housing Authority, 382 F.3d 412, 424 (3rd Cir. 2004). In Three Rivers Center, the appeals court examined the language of the regulation to determine whether it "fleshed out" the personal right created by the statute. Specifically, the court considered whether the language was focused on the individual or the regulating agency, and whether the rule targeted institutional policy and practice or individual instances. Id., 429. The court noted that the regulations, which established accessibility requirements for subsidized housing, focused on the regulating agency, not the individual beneficiary, and were concerned about accessibility issues in the aggregate. The court therefore concluded that violations of the regulations were not privately enforceable. Id.
The regulation at issue here, 42 C.F.R. § 431.244(f), provides that "[t]he agency must take final administrative action as follows: (1) Ordinarily, within 90 days from the earlier of the following: . . . (ii) . . . the date the enrollee filed for direct access to a State fair hearing." As in Three Rivers Center, the language of the regulation focuses on the regulating agency and its obligations, not the rights of the individual. The regulation establishes a deadline that "ordinarily" must be met by the agency but does not indicate any remedy or recourse for the individual when the agency fails to meet the deadline. The defendant argues that the addition of the word "ordinarily" to the regulation since the decision of our Supreme Court in Persico indicates that the regulation is not intended to be mandatory. Because "ordinarily" was added to the regulation at the same time that it was amended to add new procedures and deadlines for managed care providers, the word likely was intended merely to distinguish the ninety-day deadline from other deadlines described later in the regulation. See 67 Fed.Reg., Dept. of Health and Human Services, Centers for Medicare and Medicaid Services, p. 41095 (June 14, 2002). Nevertheless, the language of the regulation does indicate that its focus is the policy and practice of the regulating agency, rather than the personal rights of the individual seeking the hearing.
In Chaffin v. Kansas State Fair Board, supra, 348 F.3d 858, the court held that regulations promulgated under Title II of the Americans with Disabilities Act (ADA) could be privately enforced because "[t]he regulations simply provide the details necessary to implement the statutory right created by § 12132 of the ADA. They do not prohibit otherwise permissible conduct." In contrast, here the regulations create an obligation that is not necessarily implied by the statutory right to a fair hearing. A court reasonably could conclude that a plaintiff had been given the opportunity for a fair hearing, despite the fact that the agency failed to issue its decision within ninety days of the hearing request. Thus, the regulation here does not merely implement the statutory right, but it prohibits conduct that would not otherwise necessarily constitute a violation of the statutory right. Thus, the regulation's scope is greater than the scope of the right created by the statute and cannot serve as the source of a privately enforceable right.
Although the regulation does not serve as a legitimate source of a right of action, a defendant's failure to meet deadlines could arguably constitute a failure to satisfy the statutory fair hearing requirement and, in that way, give rise to an enforceable right of action. In this case, however, the defendant's delay in issuing its decision was not extreme and the plaintiff has suffered no prejudice as a result. Accordingly, the court finds that defendant's actions were not sufficiently deficient to impinge the plaintiff's statutory right to a fair hearing.
B
Having determined that the ninety-day deadline, found in state and federal law, is not enforceable under current federal case law, thereby distinguishing the court's decision in Persico, the state law deadlines now must be analyzed for enforceability under current state case law.
The court is guided by the analysis applied by the court in Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), in which the court determined whether a statutory deadline for bringing an apportionment claim was mandatory. "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statue shall not be considered." General Statutes § 1-2z. As in Lostritto, the statute in this case does not clearly and unambiguously establish that the deadline is mandatory. First, the statute does not explicitly state that it is mandatory. Second, the statute does not provide for a remedy if the deadline is not met, thus raising the possibility that no such remedy is intended. The court is therefore not limited to the text of the statute in determining its meaning. See Lostritto v. Cormmunity Action Agency of New Haven, Inc., supra, 269 Conn. 18-19.
"The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Id., 19.
General Statutes § 17b-60 provides in relevant part that "[t]he commissioner shall . . . hold a fair hearing within thirty days from receipt" of an application for a hearing. General Statutes § 17b-61 states in relevant part that "[n]ot later than sixty days after such hearing . . . the commissioner . . . shall render a final decision, . . . provided final definitive administrative action shall be taken by the commissioner . . . within ninety days after the request of such hearing pursuant to section 17b-60." The use of the word "shall" for each of the statutory deadlines suggests that the legislature intended them to be mandatory. "[D]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 20. Nevertheless, "we are mindful that the word `shall' is not dispositive on the issue of whether a statute is mandatory. We have stated that the use of the word shall, though significant, does not invariably [create] a mandatory duty . . . Thus, we must consider another factor, namely, whether the time limitation . . . is procedural or substantive." (Citation omitted; internal quotation marks omitted.) Id., 22.
The statutes at issue here, §§ 17b-60 and 17b-61, contain no penalty or other consequence for failure to meet the deadlines. "[I]f there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory." State v. Trahan, 45 Conn.App. 722, 731, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997). Moreover, failure to meet the statutory deadlines does not compromise the statute's purpose of providing due process to applicants, especially where, as here, the delay is not extreme and results in no prejudice. See Angelsea Productions, Inc. v. Commission on Human Rights Opportunities, 236 Conn. 681, 690, 674 A.2d 1300 (1996) (deadlines directory "if the failure to comply with the requirement does not compromise the purpose of the statute"). Finally, other courts have similarly held that these statutory deadlines do not impose an enforceable mandatory obligation on the defendant. See, e.g., Parkhurst v. Wilson-Coker, Superior Court, judicial district of New Britain, Docket No. CV 02 0514874 (April 2, 2003, Murray, J.) ( 34 Conn. L. Rptr. 505) (§ 17b-60), aff'd in part on related grounds, 82 Conn.App. 877, 895, 848 A.2d 515 (2004); Costa v. Coker, Superior Court, judicial district of New Britain, Docket No. CV 00 0502138 (August 2, 2001, Wiese, J.) (§ 17b-61 — sixty-day deadline); Lucas v. Dept. of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 98 0488956 (July 21, 2000, Hartmere, J.) ( 27 Conn. L. Rptr. 601) (same); Reynolds v. Dept of Social Services, Superior Court, judicial district of Litchfield, Docket No. CV 99 0079927 (June 9, 2000, DiPentima, J.) (same); Lariviere v. Thomas, Superior Court, judicial district of New Haven, Docket No. CV 96 0393745 (September 9, 1997, McWeeny, J.) (§ 17b-60) ( 20 Conn. L. Rptr. 392); ARI, Inc. v. Dept. of Income Maintenance, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 92 0123733 (March 2, 1994, Maloney, J.) ( 15 Conn. L. Rptr. 306) (§ 17b-61). Thus, the statutory deadlines in these two statutory provisions are not mandatory and the plaintiff is not entitled to the relief requested because of the defendant's failure to satisfy the statute's requirements.
For the foregoing reasons, the appeal is dismissed.
OWENS, J.T.R.