In the Matter of County of Chautauqua, Appellant,v.Nirav R. Shah,, et al., Respondents.BriefN.Y.September 7, 2016CA 14-00923 To be argued by: VICTOR PALADINO 10 minutes requested Supreme Court, Chautauqua County- Index No. Kl-2013-1266 ~upteme qcourt of tbe ~tate of ~ew ~ork ~ppellate llibision -. jf ourtb ]!lepartment IN THE MATTER OF THE APPLICATION OF COUNTY OF CBAUTAUQl[A, -against- NIRA V R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEWYORKSTATEDEPARTMENTOFHEALTH~ ANDREW DI BING BRIEF FOR APPELLANTS ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellants The Capitol Respondent, Appellants. Deputy Solicitor General VICTOR PALAD1NO Albany, New York 12224-0341 Assistant Solicitor General of Counsel (518) 473-4321 ' ' OAG No. 13-162015 · Dated: August 6, 2014 Reproduced on Recycled Paper Table of Contents Page Table of Authorities .................. .' .......................................................... , .............. iii Preliminary Statement ................................. , ....................................................... 1 Questions Presented ............................................................................. ~ ............... 3 Statement of the Case .,. ................................................. ., ............ ~···························3 A. Pre~2006 Statutory and Regulatory Background Regarding Overburden Claims .................. ; ..... -. ................ ~ ......... ~ .... 3 B .. The ·Medicaid Cap Statute ·······························~····.·············,··~·····~····5 c. Prior Litigation Involving the Cap Statute ..................................... 7 D. The 2012 amendment to the Medicaid Cap Statute ....................... 9 · . . . . E. s·tat0in.ent of Facts ........ (.••····; .............. ~· ....................... , ...... .-............... 10 · F .. T·his proc~eding ...................................................... ·.~ ................... t •••• 11 . . Argument ,.fHE 2012.AMENDMENT Is CONSTITUTIONAL ............................................ 12 A. . 'rhe County has no due process clause claim against the State regarding the 2.012 Amendment .................................... 13 B. The 2012 amendment is constitutionaJ U:nder a due process .. vested rights analysis ................ ; ........... · ........................ '.'"'•······:······· 18 1. The 2012 Amendment is not unfair ....... : ............................. 20 2. .. . The County had at most a minimal reliance interest . . based on.prior law ·········~························~············~ ..... , ............ 25. Table of Contents (cont'd) Page ARGUMENT, B. (cont'd) 3. The extent of retroactivity is not excessive ......................... 27 4. The 2012 Amendment serves an important public interest., ............... · ................................................... , ............... 30 Conclusion ....... , .......... ~········ ........................................................................ 31 Addendum '' ............. I~ I···~ ........... ~ ...... ''''" ...... ' ... """' ........................ f •••••••••• Al ii Table of Authorities Cases Page Alliance of American Insurers v. Chu, 77 N.Y.2d 573 (1991)~ ................................................................................... 19,30 Black Riv. Reg. Dist. v. Adirondack League Club, 307 N.Y. 475 (1954), appeal dismissed, 351 U.S. 922 (1956) .......................... 16 Brothers v. Florence, 95 N.Y.2d·290 (2000) ......................................................................................... 21 Chrysler Properties, Matter of v. Morris, 23 N.Y.2d 515 (1969) .......................... : ................................................................ 19 City of E. St. Louis v. Cir. Ct. for the Twen,tieth Jud. Cir., St. Clair Cnty, Ill., 986 F.2d 1142 (7th Cir. 1993) ............... ~ .......................... ; ............................... ; 15 City of New York v. Richardson, . 473 F.2d 923 (2d Cir.), cert. denied, 412 U.S. 950 (1973) ................... : ......... , .. 15 City of New York v. State of New York, . . 86 N.Y.2d 286 (1995) ...... · ........ ;.· ............ : ... ~ .......................... · ... ; ...................... ·14,30 · . . . ' Correa"Ruiz v. Fortuna, . .· . 573 F.3d 1 (1st Cir. 2009)· .... ~ ........................................... .' ..... '. .................... · .. ~ ...... 25 County of Herkimer, Matter of v. Daines, 60 A.D .. 3d 1456 (4th Dep't), lv. denied, 13 N.Y.3d 708 (2009) .~ ........................ 7 ·County of Niagara, Matter of v. Dain~s, 60 A.D~3d 1456 (4th Dep't), lv. denied, 13 N.Y.3d 707 (2009) ........................... 7 ' . ' County of Niagara, Matter of v. Daines, .. 79 A.D.3d 1702 (4th Dep't 2010), lV. denied, 17 N.Y.3d 703 (2011) ............. ; .... 7 County of Niagara, Matter of v .. Daines, · 91.A.D.Sd 1288 (4th Dep't 2012) ............................................ ,.; ....... '. ....... : ........... 8 County of St. Lawrence, Matter of v. Daines, . . 81 A.D.3d 212 (3d Dep't), lv. denied, 17 N!Y.3d 703 (2011) ~ .............................. 7 iii Table of ~uthorities (cont'd) Cases (cont'd) Page Krauskopf, Matter v. Perales, . 74 N.Y.2d 730 (1989) .................................................. '. ........................................ 4 OnBank & Trust Co., Matter of, 90 N.Y.2d 725 (1997) ......................................................................................... 28 Roman Catholic Diocese of Albany, N. Y. v. New York State Workers' Compensation Board, 96 A.D.3d 1288 (3d Dep't 2012) ~ ............. ,. ............................................... '. ..... 21-22 South Carolina v. Katzenbach, 383 U.S. 301 (1966)' ............................ · ....... ~· ................ ; ........... ;.· .. ~ ................ ~ ......... 15 South Dakota v; United States DOI, . . . . 665. F.3d .986 (8th Cir. 2012) .· ....................... _. ... · .......... ." ........................................ : 1.5 · Spano, Matter ofv. Novello,· 13 A.D.3d 1006 (3d Dep't 2004), lv. denied, 4 N.Y.3d 819 (2005) .................... 23 .. . . Stolowski, v. 234 E, 178th St. LLC, · 104. A.D.3d 569 (ls~ Dep't .2013)~ ........ ; .................... ; ......... , ............................... 19 Trenton v; New Jersey, ··262 U.S. ~82. (1923.) ·······~·~·1·•··········~··~······~ ......... : ..... ··~···················'·······•;t~, .... , .. f •• ·14 United States v. Locke, 471 U.S. 84 (1985) ............ ,. ... _ ......... : ...... ~ ................... · .......................................... 24 Williams v. Mayor, . 289 U.S. 36 (1933) ····.······~·················-·············:··••t••················• .. t•t••············••I•~··· 14 ·' New York. State Constit:ution . . '• . . artic.le .I, § 6 ... '. . ., ............... ; .. · ...... ; ....... : ....................... '..''"·"· ... ; ........... · .......... ~. 3,11,12. v Table of Authorities (cont'd) Page ·State Statutes a11 ticle 78 ...................................................... ~ ...... , ....... ················~······· ............ 7, 11 S.S.L. § 368·a ............................................................... , ............................................ 11, 13 § 368 ... a(l)(d) ftf .: fftffl fftt.t~f f~fy depriving it of vested property rights. . . . . ' . ': ,· . . Thi~ analogy is mistaken. Social Services Law·§ 368,.a, the statute on ' . . . . which the County bas.es its due process. claim, does not create property "rights" in favor of apolitical 'subdivision against the State. To the. contrary, this statute allocat~d the financial responsibilities of the State and local ' . . ": . social services districts with respect to MedicU,id expenditures before January . . . . . . . . . 2006. To be sure, that statute imposed obligations on the Department, as the ..... State's adminh~trator of the Medicaid program. While that statute was in . 13 ·effect, couµties could obtain judicial relief if the Department did not comply with its statutory obligations. But the Legislature retains ultimate authority to change the allocation ·of the State's and the counties' fiscal responsibilities for Medicaid expenditures. That authority includes extinguishing stale reimbursement obligations like those at issue here, which are as much as 30 years old. When the Legislature does so, as it. did in the 2012 amendment, it does not impair ·.any property right belonging to a county . . ·.Thus, Supreme Cou;rt erred in holding the 2012 amendment ·unconstitutional, because the State's allocation or realloc.ation of the costs of government between itself and its political subdivisions creates no vested rights that a county may invoke against the State. Counties such as petitioner are political subdivisions created by the state itself "for the convenient carrying out of the State's governmental powers and responsibilities as its agents." City of New York v. State of New York, 86 N.Y.2d 286, 290 (1995). As a result, a county has "no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." Williams v. Mayor, 289 U.S. 36, 40 (1933) (Cardozo, J.); see also Trenton v. New Jersey, 262 U.S. 182, 186-87 (1923) (federal co~stitution does not bar a 14 · state from taking municipal property without compensation). Just as states are not persons within the meaning of the Fifth Amendment's Due Process Clause, South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), so t.oo are political subdivisions not persons entitled to federal due process protection from the states that created them. City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir.) ("[p]olitical subdivisions of a state may not challenge the validity of a state statute under the Fourteenth Amendment"), cert. den£ed, 412 U.S. 950 (1973); City of E. St. Louis v. Cir. Ct. for the Twentieth Jud. Cir., St. Clair Cn~y, Ill., 986 F.2d 1142, 1144 (7th Cir. 1993) (municipalities are not persons for due process purposes); see also South Dakota v. United States DOI, 665 F.3d 986, 99l & n.4 (8th Cir. 2012) (expressing doubt wheth~r · political subdivisfons are persons, but not deciding issue); but see In Re Real Est. Title & Settlement Servs. Antitrust Litig., 869 F.2d 760, 765 n.3 (3d Cir. 1989) (school districts are persons fo;r due process purposes).·. Although New York courts have sometimes construed the New York constitution's due process clause more expansively than the Supreme Court . . . . . has construed the federal clause, Herna~dez v. Robles, 7 N.Y.3d 338, 361-62 ' . . . . (2006), New York has followed federal decisions holding that political subdivisions cannot challenge state statutes on due process and similar constitutional grounds. The Court of Appeals has explained that the 15 "alteration, impairment or destruction of [the] powers [of a political subdivision] by the Legislature presents no question of constitutionality" and does not implicate the due process clause. Bl.ack Riv. Reg. Dist. v. Adirondack League Club, 307 N.Y. 4 75, 487 (1954) (emphasis added, citations and paragraph break omitted), appeal dismissed, 351 U.S. 922 (1956). Indeed, "political power conferred by the Legislature confers no vested right as against the government itself* *.*The cqncept of the supreme power of . the Legislature over its creatures has been respected and followed in many decisions/' Id. at 488. The County's due process/vested rights challenge t() the 20.12 amendment is barred by these controlling authorities. This bar goes to the merits of petitioner's constitutional claim; it is not simply a question whether petitioner has capacity or standing. That is, even if the County has capacity or standing to challenge the 2012 amendment on at.her grounds, see Matter of Krauskopf v. Perales, 139 A.D.2d 14 7, 153 (3d Dep't 1988) (city comm1ssioner . . . . . . has standing to c:µallenge state agency's internal guidance on state statutory . . . grounds), aff'd, 74 N.Y.2d 730 (1989), ~ts due process/vested rights claim fails on the merits because it does "not have the substantive right to raise" a due process challenge to the 2012 amendment. Matter of Jeter u: Ellenville Central SchoolDistrict, 41 N.Y.2d 283, 287 (1977). In Jeter, a city boa,rd of 16 education and a city department of social ser.vices alleged that a state law imposing certain educational costs on them violated-their rights to due. process and equal protection. The Court held that while these municipal entities had standing to challenge the state law, they lacked the "substantive right" to mount state and federal due process and equal protection challenges to the law. Id. In so concluding, the Court followed the federal authorities . holding that political subdivisions of a state may not challenge the validity of a state statute under .the Fourteenth Amendment. Id. '. . Similarly, here ~he County has no "substantive rig}it,'' that is, no due . . . process claim that it was deprived of vested property rights by the . . . . . . ' . . . ' . Legislature that created it .. The New York Constitution's Due Process Clause ' . . . . . . . . . . . does not limit the Legislature's authority to allocate the cost of Medicaid . . . . expenses between the State and its counties as it s.ees fit,· and ~o change that allocation even after the relevant expenses have been incurred. Once the . . . Legislature unambiguously extinguished overburden reimbursement, the County, as a political subdivision of the State, could have no due process claim against the State for further overbur~en payments. Consequently, petitioner's due process/vested rights 'claim has no merit and Supreme Court erred in declaring the 2012 amendlll.ent unconstitutional. 17 B. The 2012 Amendment is constitutional under a due • ' ' I ' process vested rights analysis. The conclusion that the County has no due process vested rights claim on the merits against the State suffices to dispose of the County's constitutional claim and require reversal here. However, Supreme Court . further erred in adopting the County?s constitutional argument, because even if the County had a due process claim against the State, the 2012 amendment .would· not violate the County's vested rights .. There is no merit to the ' " . . . . Cou.nty's argument that because the County incurred overhµrden expenses· b.efore 2006 at a tim~ when overburden reimbursement was required by statute, the Legislature can never terminate the County's claims for those. expenses. A.~ the Court of Appeals has observed, ''the vested rights doctrine is · conclusory, and inde.ed a fiction." Ma.tter of Hodes v. Axelrod, 70 N.Y.2d 364, 370 (1987). Although older cases evinced an aversion to retroactive legislation generally, "the modern cases reflect a less rigid view of the Legislature's right to pass such legislation and more candid consideration - on a case-by~case basis - .of the various policy considerations upon which the . . . . : ' . . . . . . . · constitutionality of retroactive.legislation depends." Id. at 371. Determination . . . of whether legislation impermissib.ly impairs vested property rights entails a 18 balancing of "a number of factors, including fairness to the parties, reliance on pre-existing law, the extent of retroactivity, and the nature of the public interest to be seryed by the law.'' ·Alliance of American Insurers v. Chu, 77 N.Y.2d 573., 586 (1991) (internal quotations omitted); see Hodes, 70 N.Y.2d at '370; Matter of Chrysler Properties v. Morris, 23 N.Y.2d 515, 518 (1969). The balance of these factors in this case tips decisively in favor of the 2012 amendment. ' ' In Matter of County of St. Lawrence v. Shah, 95 A.D .3d at· 1554, the ' ' .. Third Department held that the 2.010 ar:riendment to the Cap Statute did not . ·• extinguish pre-2006 overburden claims. In dictum, the Court concluded that . "the 2010 ·amendment, even .if it was intended by the Legislature to rope al ' . : '• . . ,. . .. . Social Services Law § 368-a(l)(h), cannot serve 'to relieve the state of its · . . ' . . obligation to refund the counties for these expenditures made prior to January 1, 2006." Id. This conclusion was dictum, because it was expressly hypothetical and :not necessary to the court's holding that the 2010 amendment was not intended to exti:n.guish pre~2006 overl;>urden claims. As dictum, this language is not binding on. eit.her this Court or appellants .. See Stolowski v. 234 E. 178th St. LLC1 104 A.D.3d 569, 570 (1st Dep't 2013). Moreover, .the constitutionality of the 2010 amendment was neither briefed . . :. ' nor argued in Matter of County of St. Lawrence v. Shah, and the Third 19 Department did not analyze ariy of the relevant factors in support of the lan~uage. As we explain below, analysis of the relevant factors establishes that the 2012 amendment is constitutional, and consequently, the dictum in Matter of County of St. Lawrence v. Shah should not be followed here. See Gentile v. Garden City Alarm Co., 147 A.D.2d 124,132 (2d Dep't 1989) (Appellate Division is not bound by its prior dicta). 1. The 2012 Amendment is not unfair.· The2012.amendment is not unfair to the County. The County's claims are stale, in some cases dating back decades. The 2012 amendment .. . ·terminating these claims is part of a new cost sharing system under the cap · .. statute.pursuant to which New York's counties have been relieved of ~esponsib.ility for billions of dollars of Medicaid expenditures. Thus, there is .no merit to the County's claim below that extinguishment ofpre-2006 overburden liabilities is unfair because those monies were due and owing, the failure to pay them is the State's fault, and the State has not undertaken a project to calculate and determ~ne the total overburden reimbursement owed · counties dating back to 1984. . . ·The Legislature took a different view of the matter, determining that the time has come to close the books on these stale claims. Long before the · advent of the new Medicaid cap c.ost-sharing system, the State made 20. available a process under 18 N.Y.C.R.R. § 601.4 and Part 635 by which counties could have submitted claims for overburden reimbursement. Petitioner and some other counties, however, failed to fully take advantage of that process until after the Medicaid Cap Statute went into effect in 2006. By the time the Legislature passed the 2012 amendment, overburden claims were between seven and twentyweight years old. Governmental operations, especially fiscal planning, are compromised by sw::h stale reimbursement claims of indeterminate amounts, and it was reasonable for the Legislature to extinguish the claims. Even so, as it considered-the 2012 amendment, the Legislature afforded counties a grace p.eriod for one last round ofclaims, allowing payment of · pre"2006 ovei·burden claims submitted before April 1, 2012. After the amendment was included in the Governor's article VII bills in mid-January 2012, petitioner and other counties submitted a flurry of overburden claims before April 2012, all of which the Department paid (R. 447, ~ 53 & n.23). ·The Legislature's judgment in affording this grace period is entitled to defe'rence. See Brothers v. Florence, 95 N.Y.2d 290, 301 (2000) (if th~ · Legislature shortens a statute of limitations. period but sets a reasonable grace period, "its determination of what constitutes a reasonable time is entitled to deference in the absence of some 'palpable error"')i Roman 21 Catholic Diocese of Albany, N. Y. u. New York State Workers' Compensation Board, 96 A.D.Sd 1288, 1290 (Sd Dep't 2012) ("due process is satisfied when the Legislature expressly sets a 'reasonable grace period"'). There is nothing inequitable in this result. The 2012 amendment is part of the Medicaid Cap statute which has saved counties billions of dollars since its el)actment in 2005. Although counties can no longer obtain reimbursemen.t for old overburden claims, they enjoy substantial savings from the new cap methodology. For the five-year period between the 2005~. 2006 fiscal year and the 2009~2010 fiscal year, counties saved approximately . $6.4 billion "as a result of the Medicaid cap and an additional $2.5 billion as a . . ' ' . . . . . . . . . . . . . result of the State takeove,r oi Family Health Pl us," a Medicaid expansion program (R. 782). Petitioner itself has saved more than $21.8 million sinc,e the Medicaid Cap's inception (R. 445, ~ 43). And because the counties' financial obligations are now fixed, the cap provides them with stability and . . . . predictability with respect to their future Medicaid obligations. Thus, the • ' ' I • • ' financial trade~offs reflected in the Cap Statute as amended in 2012 strongly . favor the counties: although the law terminated the state overbqrde.n clairµs, . the counties have saved billions in present and future Medicaid expenditures. Another positive trade-off.that counties have received under the new . . cap regime is protection from pre~2006 Medicaid liabilities. Although .the 22 Cap Statute as amende.d in 2012 does not allow for reimbursement of pre- . ' 2006 Medicaid claims, the statute shields counties from pre-2006 liabilities . they otherwise would owe under the old cost-sharing system, including paying for federal disallowances of old Medicaid expenditures. For example, if this year the. federal government finalized an audit and disallowed federal funding for million13 of dollars in Medicaid expenditures incurred before 2005, . under the cap law the County would not hav.e to contribute to the disallowance, unless the disallowance resulted from the ·county's failure to · properly administer the Medicaid program (R. 444, ~ 42). See L. 2010, ch .. . 109, Part B, § 22. This is irt co11trast to the old system, .under which counties . . . . . would have had to pay their percentage .share of the disallowance, regardless of fault. See M~tter of Spano v. Novello; ls A.D .. 3d 1006, 1007-08 (3d Dep't · 2004), lv. denied, 4 N.Y.3d 819 (2005) .. ' " .. . Similarly, if today a court were to grant judgment in favor of health · care providers and order. the Medicaid program .to retroactively pay them increased Medicaid reimbursementfo.r pre-2006 services, the cap would shield the counties from having to contribute to the court-ordered payments. ~ ' . . . Under the old system, counties would have been required tq contribute to such increased retroactive payments resulting from court orders. 23 But here the County $eeks the benefits of both cost~sharing systems and the burdens of neither: it now enjoys substantial s~vings from the Medicaid cap, protection from pre-2006 liabilities (i.e., federal disallowances and judgments directing increased reimbursement for providers), and at the same ti~e it seeks reimbursement for state overburden claims payable only under the old law. The Legislature, in enacting the Cap Statute and the 2012 amendment, made the reasonable policy decision that the substantial financial benefits counties receive from the new cap law, including the protection it affords from old liabilities, warranted extinguishment of pre- · 2006 overburden claims. · The courts may not overrule ~he Legislature;s policy judgment simply on the basis of a contrary policy judgment. Even if counti.es are entitled to d.ue proces.s protection, the legislative process itself....;. in which they lobbied vigorously against the 2012 amendment- afforded them constitutionally adequate process. See United States v. Locke, 471 U.S. 84, 108 (1985) ("In ' ' ' altering substantive rights through enactment of rules of general . . . . . applicability, a legislature ge.nerally prov,ides constitutionally adequate ' ' ' ' ' pr~cess simply by enacting the statute, publishing it, and, to the extent the . statute regulates private conduct, affording those withirt the statute's reach a reasonable opportunity both to fam~liarize themselves with the general 24 requirements imposed and to comply with those requirements"). "While the legislative alter.ation or elimination of a previously conferred property intereE:lt niay be a 'deprivation,' the legislative process itself provides citizens with all of the 'process' they are 'due."' Gattis v. Gravett, 806 F.2d 778, 781 (8th Cir. 1986); see also Correa"Ruiz v. Fortuna, 573 F .. 3d 1, 15 (1st Cir. 2009) (same). Thus, under all the relevant circumstances, the 2012 Amendment was fair and reasonable. 2~ . The County had·~ t most a .minimal· reliance interest based o;n prior law. By April 1, 2012, any reliance by the County on pre~2006 la\y to s:upport . ' . . . . . its view that reimbursement.of its pre"2006 overburden claims would .. · continue indefiniteli was unwarranted.· Before 2012, the County had ample . forewarning that its claim$ might be extinguished. ·.The County do~s not deny that the 2005 Cap Statute extinguished the State's resp.onsibility for overburden rel.mhursement prospectively for periods after 2005 - all the .. . County's claims pertain to periods before 2006. Yet the County waited over . ' . six more years before pursuing the claims .at iss:i.10 here.· Although before 2006, the County expected.based on then~existing law ' . . ,· ' . ' that it would be reimbursed for overburden expenditures th~t it incurred, it had no reason to believe that its claims might not be altered by subseqt+ent 25 law, or that it could indefinitely postpone the submission of its claims. Moreover, after 2005, the County did not rely.on prior law to incur any new / reimbursable expenditures or take other affirmative detrimental actions . . The County's only reliance after 2005 was its failure to submit all of its pre- 2006 claims during the more than six years after the Cap Statute wont into effect and before the 2012 amendment unambiguously extinguished overburden reimbursement. Although the County might have initially expected that it would . . continueto be reimbursed for pre-2006 claims despite the Cap Statute; the . . . ,enactment of that statute, the Department's interpretation of it, f!tnd the ii .. ensuing litigation at the vecy least gave petitioner reason to be cautious in :1 j relying on its ability to indefinite~y postpone its claims. In addition, the ·. Legislature's enactment of the 2010 amendment; and the Department's application of that law, gave petitioner further notice that it would be unwise to further delay submitting its by now stale reimbursement claims. Thus, petitioner reasonably should have been aware well.before the enactment of · the 2012 amendment that its pre-2006 claims were on borrowed .time, and . consequently its reliance on pre-2006 law to justify its more than six-year delay in submitting.them was unwarranted. 26 This conclusion is bolstered by the more than two-month period between the January introduction of the 2012 amendment and its April effective date. Once the amendment had been introduced by the Governor, petitioner had additional notice that further delay would result in termination of its claims. As we explained above, petitioner submitted a flurry of claims during this grace period, and the Department paid them (R. 447,· 'II 53). Consequently, any reliance interest in overburden . reimbursement that petitioner ·may have had by the time of the enactment' of ' . ' ' the 2012 ame.ndment was minimal, and the Legislature adequately . accommodated it here. 3. Th.e extent of retroactivity is not excessive. There is no merit to the County's claim below that the 2012 amendment is excessively retroactive. On the contrary, the amendment is prospective to the extent that it extinguished only claims that were submitted after its enactment. The Department has paid all claims that were submitted before Aprill, 2012. Furthermore, the 2012 amendment is a "reJ.lledial statute" that was intended to clarify that reimbursement for · pre-2006 overburden claims was no longer available after the Medicaid cap regime went into effect .. See Matter of Ideal Mutual Insurance Co. v. Superintendent of Insurance, 82 A.D.3d 518, 519"20 (1st Dep't 2011) (no 27 vested right in the statutory distribution scheme for liquidation of insurance companies, which is "subject to change at the discretion of the Legislature"). Because the Legislature intended the 2·012 amendment to be curative., it is appropriately retroactive to the extent that it prospectively ended reimbursement of claims for the County's Medicaid costs that the County paid before 2006 for services provided to overburden-eligible recipients. As reflected in its legislative history, the purpose of the 2012 amendment was to "clarify that local governments cannot cl~im for overburden expenses incurred prior to January 1, 2006, when the 'local cap' statute that limited . . . . . ' . . ' . .· . . local contributions.to Medicaid expenditure~rtook effect"(~,. 473). Legislative history like this inY ooctlons eighty· three a)'ld elghty•four ot' this act shall not afi'e()t the repeal ol llll the commissioner of taxation and nnanoo. . · . (I) Subject to paragraph (g) of this aecUon, the state ftscul ye(U' social 11ervice11 district expendltul'tl cap amount calculated tor each &oclal services district pursuant ti> paragraph (d) of thla section shall be allotted to ellllh dlatrlct during thl!t fiscal year and paid t.o the department In equal weekly amounta In a manner th be de~rfulned by the commiilsloner nnd commu.nlouted to eucl.t dlsµicts and shl\11 represent elK'h dlatrlct's maximum re11ponsiblllty for metllcal naalstance expenditures govemed by thl11 sectlon. Commencing JllllUl\t'Y 1, 2008, all anch amountll !!hall be deposited Into the general fund of the state treas\ll'y to the credit of the 11tate purposes account t.herein. (g) (0 No allotment purauant to pll'llgtapb (() of this sectfon ehaU be npplied agalilsi !l social oorvlcea dlatrlct d':g the period April 1, 2006 through D~mber 31, 2005. ..Social 11ervlce11 dlstrlut medical tance ahares 11haU be determineq for such· period pursuant to shareo provtsiona in eftect on Januney 1, 2005. · (II) For the period Janupey 1, 2006 through June SO, 2000, th!! commlaaloner hi authorjzed to allot against each dlat.rlct an amount baaed on the cornmfualoner'a beat· eatll1\llte or the final base year ·expenditure cab:ulat.lon required by paragraph (b) of this seilt.lon. Op0n compleUon· of such calculaUon, the commleBioner shall, no 1.arer I.hall December 31, 2006, recoMile ffllch esUmated allotment.a with the t!acal year social services dtstrlct expenditure cap amount& · calculated purauant to subpamgrapha (I) and (II) or paragraph Cd) or W. &!lCtton. · (IU) Ouring ea(lh etate fisW year subject to the provbilons ot this section, the commissioner shall maintain an llCl:ounUng, for eaclt eoclnl servtce11 district, ot the net umoun't.s that would have been expended by, or on heh.it ot, such d\.tltrlct had the social ~ervicea di.strict medical 11S11llltan~ shares provisions In eft'ect on Jl\tluary l, 2005 been applied to such district. As soon as practicable after the conclusion or ea.oh such t'iscal year, but In no event IM8r than Hix months after the conclUlllon of eMh auch l1sca1 year, the commissioner shall reeonclle. auch net amounts with auch fiscal year's soclal servlcea district eJi'fied to req~d by this )Ollel othe1· t.han , te duty nursing on to any otfuii' ded by adding a :~ . ( }' .. ,, AS Ch. 57, PL, A, § 60 I h' :., ;., ... ,., ,. ; . ·~i ; · r; ·i·1· : . i '1/ . . ' .... Ch. 57, Pt. A, § 60 LAWS OF N~W YORK CHAPTER CONTAINS VBTOFJD PROVISIONS 14 ot part A and. ~ona 13 and 14 ot part B of chaptet' 1 of the laws ot 2002, llhaU be el«lluded ft'Qm all calclllatlon.e made plU'fllWl~ tQ this aoc:tton. · § 61. Any pilytnenta made un and after Januaey i 1 0006: (I) by the department or heRlth to a !!llclal allt"llcea dlstrivt tor the P"l'})OM ot providing enilh dlatrillt wit.h l'elmbunement tor inedlffi asalatallce dlatlict 'harct overpayment.a c:auled by iui.c.Uigo~t!on ot pin'llOna l$ '1haU be Included fn. the bae yttiµ- calcu!M!on req\lll'ed by !l\1bdlvtsion lb) ot 11uch section 1. · f Ull. Paragrnllh (e-1) ot subdlvbrlon l2 or eeotloo 2808 of the public health law, as ndclod hy ~on ll9 1)( p1111 C or chupter 58 ot the laws of 2006. la ftm\lndecl to ntild aa followa: (e-:-l> NotwiUurt.anl\lng any lnconallJten~ provlaion of ll\W or 1·egnlatlon, Uw com11\18sfon1?r ahnll P,rovid", tn addltiol\ \4> ~bJ eetablltlhl)d p1u~t to this nl.'tlcle prto1• to oppllc11tJon ''.f thlA ~on, lldrlltlonftl llt\fmtlntll under the mee ~ p1U'\Want to t.itle 11leven of artMe five of the llOCW 1141lV~lf laW tor nnn•Mti\te operated p\1blici l"Q$1dtnthll hf11lth C'llr& taciUUef, lnclualng. public realdentl.nl health care tncUIUe11 ~ In thtt 001.mtf ol . NMaoo, the Ctlllnty ot WMtthester 1ind' the oounty or Erle, but el«'ludini public re~Mential. h11Alt'1 cAM faciltt.ftW opernttcl by ll town Ol' crit..Y wlthJn I\ C!lllncy1 In an l\irrtltl\te IUOOW or Up to ont hundred My million dnllart fn ndcUttonal f)QYJll(!ntlJ tor .state 1'11Wi11 YtiRr beginning . April ltl'st. two thOWJand M ~. The nmount. A.II~ to each eligible public ret1fcltnUal health care iacfllty tor tlUIJ pei'IOd ahldl be c:ompnted In acconltlncif With the pr<)vfaionn ~f pnragreph f law to the contr . baals to providers to exceed (our mi ~ llut'llUMt.to (a) Fol' each 01 mhi~nce~ the department c Ql.'.l:!Sel!Bed relmbu quarter of the film . (b) ~·or each· s · . obt.alned pur11u~I . . aggregnta amount · ~al~latJon iihall · 1 payinent"'Md shal ~ ~vide~ )l~ (Ga- lh th& 1111111.riinB-f 2. 'I1t! amount area of OR@rat:J.on ! Mlru8'?\g amount mierfil!noy mf)'(ficUI t It all ne · proVtded, further, that the amendritenta to tre<:Uon 364-J 61 the eo¢al aervfoea law made .. · by aect.lona /otty and My.five of thla act ehi\U not affect the repeal of aucti 8'.!Ctlori and shall " . be deemed repealed therewith; . : ' .· . .•. . . ({) provided, further, tllat section fttiy.flve ot this act shau take etrect J1111uary l, 20t3i .·., '• · (j) provided, further, that any rules or regulatfona nece11wy to lmplement the provltllons of thl!i act maj' be promulgated and any procedures, forms, or mstruction11 n~ for auch , Implementation may be adopted and l.aaued on or after the .date thlii act shall have become a law: . ' .. I , . . · d (k) .provided, further, that this act ehaJI not be construed to alter, change, atfeot. unpalr ~r . · · eteat any rights, obUgatlons, duties or Interests llOOl'Ued, incurred Qr conte~ prior to the eft'ective daw olthl~ act; · . . · · (l) provided, tm'ther, that the CQmmls.sloner of health and the euperl;tltendent of financial ~~ and any appropriate ctJuncll may take any sfiepa neceBllary to Implement thw act · Pnor to lts eftect.lve date; · · · · ·. · : ·· . ~rn) provided, further, that notwithatandlng any Inconsistent }'irovislon af tho state adminla· "ttealtive Pl'OCedure act or any othar provision or law, rule or regulation, the commlssipner ot .: :.,. •. , tQ adt.b and the superintendent ot 11nanclal service1111nd any approprlat,e councfl la ·authorized ation, the effectl\'CI' ·· . . ~ aaopt or amend 01· promulgate on an emergency baaia ally regulation he or she or such !llUon 18 of cha~· : ~'. :·:. ·~ determines necessary to implement any provlalon o( this act on l!JJ effective date; and · i'rame& ror noUtll!t : '.. '": \:' (n~ pMided, further, that the provlalons 'ot this .act shall t>euorrie etreCtive notwithstandtrig · d without fo~ :~ . : .ii.'.".':-tl!e Callure of the commlaaioner ot health or the superintendent' of flnimclal 11ervtcea or any . t .; .;:; . 'llllUncil to adopt or:amend or pNmulgate regulations lmpleinentJng this act. · · fan, section o~~ · ·?'.( '..~:; · · PART E . . . to be invalld~...i 111 . ,~:.:v1";.: . 1~ .. ihall be con~~.:t« · ·~~):~,:-..~ · Inten~onally Omitted art thereof (JIJV'.!". • . ' • ·,. ;. • PART F · ~ ~~~~ ~~; ·· · . l. SecUon l of part O or chapter 58 o( !.he laws of 2oo5, authorizing re.tmbu.t.sements for ·. · ,~: ~ made b,y or on behalt or social services dist.rlcts for medical aMistance tor needy ·~; : Addltklns. 8111. lmllcatad by 11nderllnt: dlllo!lw by ~i vetoiu. by 1harllria · 483 li, ... •. ~ 'f'. A6 ;. :, l • W YORK Js or hi!!: - ' iter 645 of . . ts,' nurses, rovlded' on Uhioaa and lptlqn and iotherapy; 1 ~d rou· militia but . I g eye. Lh, alcol)ol · with the :ltmia an~ ~or use by, :-0 ot the . r&uppUe& 11\ing both · Unga new ZOlO REGULAR SESSJON Ch. 109, Pt .. B, ~ 27 ~: ~1~: • · f ~. Notwlthatandlng any lnoon.slstent provision ot~on 112 or 1611 of the et.ate tinance , . ··: law or any other contrary provision of the state finance law or any other oontrary provision of . , , law, the commlaA.ioner ot health may, without a oompetJUve bid or request /or propoeal · ·' · · p~ enter Into contracts with one or more certl.lled public a;ccou.nt.lng t1nna (or the. Plll'pOae ot conducting audlta of dl4proporttonlltA! shani hO&pltal payments made by the mte ;·• of New. York to general h06pltals and for the pµrpose of conducting ·audits ot hospital !lost l'eportiJ aa submitted to the e~te of New. York in acl!Ordance with article 28 ot the pu~llc ..... health law. · f 2tl. SubdMaton 7-a of Gettion 101 ot part A of chapter 67 of the 13wa of 2006, amending . • !.. ;'.'.: • tile llOOlaJ aervlCilS law relating to medically frilglle children, as amended by 11eCtion 65 of part 0 ot chapter 68 of the laws of 2008, I& amended t.o read 1111 tollowa: · · 7"'8i. Sections fift.y.eJght, My-eight·a Md My.ejghtrb shall talie effoot January 1, 2007 Md ah..U expl"8 and ~&d l'llpealed J1111~. · · · . I 27. ParaflT&ph Cd} ol wbdlvlaton 8 of ~on 867-a of the lit>clal services law, aa added by Mapter 33 of the laws of 1998, subparagraph.e l and 2 as amended by sootfoll 2 ot part G ot .. · ehapte.r 23 or the lawa of 2000, la amended to read aa follows: " · ·· ' (dXl) Beginning April first. two thousand two . IUld to the. extent that f~eral tlnancilll 'Plrticlpatlon la available at a one hUtldred pel'l!en~ federal Medical asalatance percentage and .- eubJ\!l:t to tle\1\ions 1983 and 1902(aX10)(EXiv) of the fedei'ill ·social t1elllllity act, meiliclll '·:, · llllabtan11t1 shall be available for fltll payment or medlcare pnrt B pl'ellllums for !ndividuals •;:", .,,. (referred to aJJ qualitted Individuals 1) who ate entitled w hoopiW insurance benefits tinder .. :.· :Jl8ri A or Utle xvm ot the federal 80clal murtt.y act and whose !µcome exceeds the income ·~L .ti: e.111:.abllshed. by the et.ate and ·Is at least one hundl'OO twenty percent, burl~ than one ''.¥,:~· thttty·llve.percent, or the tedel'lll poverty level, tor a Camtly ol the siie involved and ,: :.','.. • o are not Otherwm1 eligible tor medical 1'1!SU!tance under the awt.e plan; · .· · · J,f · (2) ~ Af)l'i~ AFitr WAl UM!~~ ~d t& the extent -tMt eedm