Opinion

Barele, Inc. v. Contract Dispute Resolution Bd. of the City of N.Y.

  • 2024 NY Slip Op 30532(U)
Court
New York Supreme Court, New York County
Filed
Feb 20, 2024
Status
Unpublished
Cited by
0 cases

The opinion

Barele, Inc. v Contract Dispute Resolution Bd. of the

City of N.Y.

2024 NY Slip Op 30532(U)

February 20, 2024

Supreme Court, New York County

Docket Number: Index No. 161310/2023

Judge: Arlene P. Bluth

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 161310/2023

NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/20/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ARLENE P. BLUTH PART 14

Justice

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BARELE, INC. d/b/a OMEGA HOME HEALTH CARE

and PREMIER HOME HEALTH CARE SERVICES, INC., MOTION DATE 02/16/2024

d/b/a FIRST AIDE HOME CARE,

Petitioners, MOTION SEQ. NO. 001

-v-

CONTRACT DISPUTE RESOLUTION BOARD OF THE

CITY OF NEW YORK, NEW YORK CITY HUMAN DECISION + ORDER ON

RESOURCES ADMINISTRATION, THE CITY OF NEW MOTION

YORK

Respondent.

---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 34, 35, 36, 37, 38,

41, 42, 43, 44, 46

were read on this motion to/for ARTICLE 78 .

The petition to annul a determination by respondent the Contract Dispute Resolution

Board (“CDRB”) is denied.

Background

This dispute concerns an audit by respondent New York City Human Resources

Administration (“HRA”) about contracts it has with petitioners. Petitioners explain that during

the relevant time period (2003 and 2004) they operated home care services and were enrolled in

the New York State Medicaid Program (apparently, petitioner Barele, Inc. is no longer in

existence). They allege that in 2002, New York state appropriated specific funding to support

the recruitment and retention of personal care workers (these funds are known as “HCRA”

funds).

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Motion No. 001

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Petitioners contend that in 2008, HRA reviewed the costs petitioners incurred in

furnishing services during the 2004 fiscal year and HRA informed petitioners that they were

required to return certain of these funds for 2003 and 2004 (NYSCEF Doc. Nos. 7, 8). Petitioners

argue that they timely filed notices of dispute for these determinations. They contend HRA

ignored these notices and instead the parties engaged in additional back and forth about the

calculations for these expenditures. Specifically, HRA sent a letter to Barele, Inc. (d/b/a Omega

Home Health Services) dated March 24, 2009 in which it insisted that the funds had to be spent

within the same fiscal year in which they were received (NYSCEF Doc. No. 13). It also sent a

letter to petitioner Premier dated the same day where it made similar arguments but reduced the

amount to be recouped (NYSCEF Doc. No. 14). Petitioners then sent letters to the HRA

Commissioner where they focused on their argument that HRA did not have jurisdiction over

whether it could recover the unspent HCRA funds (NYSCEF Doc. Nos. 15 and 16).

Petitioners claim that they eventually submitted notices of claim to the comptroller in

July 2010 after not receiving a decision from HRA’s commissioner (NYSCEF Doc. Nos. 22 and

23) challenging HRA’s jurisdiction. The Comptroller denied Omega’s notice of claim on the

ground that HRA had “the authority to recover unspent Medicaid funding including HCRA

funding” (NYSCEF Doc. No. 24 at 3). It rejected Premier’s notice of claim as untimely

(NYSCEF Doc. No. 25).

Petitioners observe that they appealed these denials to the CDRB—CDRB eventually

found that these claims were time barred. An Article 78 petition was then commenced and the

matter was eventually remanded back to CDRB to be reviewed on the merits (Barele, Inc. v

Contr. Dispute Resolution Bd. of the City of New York, 2014 N.Y. Slip Op. 30323[U] [Sup Ct,

NY County 2014]).

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Motion No. 001

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Petitioners allege that from 2014 through 2017, the parties entered into various tolling

agreements as part of an effort to negotiate a settlement. They insist that the parties entered into a

“lockstep agreement” in 2016 in which CDRB agreed to hear the argument on the merits for

petitioner Premier. Unfortunately, petitioners contend that no settlement was reached and

instead, the CDRB stayed this matter in 2017 while it awaited a Court of Appeals determination

on a critical issue. In 2021, the Court of Appeals issued a decision in a separate matter that

found that HRA had the authority to audit the specific type of funds at issue in this dispute

(HCRA funds).

CDRB then purportedly requested briefing on two remaining issues: 1) if petitioner’s

claims about HRA’s audit of the unspent HCRA funds for 2003 and 2004 was time barred and 2)

if the claims were timely, then whether the audit was accurate. Petitioners complain that CDRB

then dismissed the petitions on jurisdictional grounds and characterize the rationale as “unclear.”

Petitioners argue that the CDRB committed an error of law by determining that

petitioners were precluded from presenting evidence of certain authorized expenditures of

Medicaid funds. They claim that the instant CDRB decision, just like one from years ago,

improperly prevented petitioners from pursuing their case on the merits. Petitioners insist that

they were denied their rights under their contracts with respondents and it runs afoul of Medicaid

laws and regulations.

In opposition, HRA focuses on recent court decisions that purportedly foreclosed

petitioners’ challenges to HRA’s recoupment demands. It insists that CDRB’s decision correctly

found that HRA’s recoupment of the disputed funds was subject to alternative dispute resolution

(“ADR’) under the parties’ contract. HRA questions how petitioners could challenge the ADR

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process now. It emphasizes that HCRA funds, the funds in dispute, had to be spent in the year in

which they were received and that there is no question that did not occur here.

HRA points out that petitioners’ notices of dispute challenged HRA’s authority to recoup

the unspent HCRA funds and did not actually dispute the amount of HCRA funds that HRA

sought to recover from petitioners. HRA insists that petitioners had to raise the issue concerning

the amount of the funds to be recouped before the commissioner.

In reply, petitioners argue they had a right to be heard on the merits and they did not

waive their right to a fair hearing under Medicaid regulations. They insist that their 2009 notices

of dispute were sufficient to give proper notice under the contract. Petitioners insist that due to

various delays, it would have been impossible to spend all of the Medicaid funds within the same

fiscal year.

Discussion

“Judicial review of a CDRB determination is limited to the question of whether it was

made in violation of lawful procedure, was affected by an error of law, or was arbitrary or

capricious or an abuse of discretion” (Start El., Inc. v City of New York, 104 AD3d 488, 488, 961

NYS2d 119 [1st Dept 2013] [internal quotations and citation omitted]).

The Court’s analysis begins with a review of recent and relevant appellate cases

concerning the issues here. In 2021, the Court of Appeals “conclude[d] that the funds for

personal care services paid to petitioner People Care, Inc. under the Health Care Reform Act

(Public Health Law §§ 2807–v[1][bb][i], [iii]) are Medicaid funds subject to the audit and

recoupment authority of the City of New York Human Resources Administration (HRA)”

(People Care Inc. v City of New York Human Resources Admin., 36 NY3d 1088, 1090, 143

NYS3d 329 [2021]). Moreover, the Appellate Decision, First Department, in a subsequent

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decision, observed that “the annual auditing and recoupment of Medicaid funds left unspent

during each fiscal year” complied with a contract similar to the one at issue here (City of New

York v Contr. Dispute Resolution Bd. of City of New York, 202 AD3d 532, 534, 164 NYS3d 71

[1st Dept 2022]).

Therefore, this means that HRA is an entity capable of performing an audit with respect

to the HCRA funds allocated to petitioners and that the funds had to be spent within the same

fiscal year in which they were received. This is contrary to petitioners’ notices of claim from

2009 (NYSCEF Doc. Nos. 15 and 16), which both insisted that HRA did not have jurisdiction

over whether it could recover the HCRA funds.

CDRB’s determination—the decision petitioners seek to annul—observed that “HRA

directed petitioners to return millions of dollars in unspent Medicaid funds” (NYSCEF Doc. No.

4 at 1). HRA determined that “Barele owed $10,864,086 and Premier owed $951,681” (id. at 2).

HRA later reduced the amount owed by Premier to $823,436 (id. at 3). However, CDRB stressed

that HRA rejected petitioners’ claims that they did not have to return any unspent HCRA funds.

CDRB observed that “In sum, the First Department and Court of Appeals have concluded

that HCRA funds are a subset of Medicaid funds and that HRA is authorized to recoup these

funds from providers if they are not expended in the fiscal year received. Here, it is undisputed

that petitioners did not spend the contested HCRA funds in the fiscal years received.

Accordingly, HRA is entitled to recoup those funds” (id. at 6).

CDRB noted that HRA and petitioners disagreed about how to characterize the funds

(id.). It concluded that “It is immaterial, however, whether the unspent Medicaid funds are

characterized as HCRA or non-HCRA funds. The Court of Appeals has held that HCRA funds

are a subset of Medicaid funds. People Care Inc., 36 N.Y.3d 1088 at 1089-90 (2021). Since the

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courts have conclusively held that HRA is authorized to recoup unspent Medicaid funds, it is

inconsequential whether these funds are classified as HCRA or non-HCRA funds” (id.). It also

emphasized that this dispute was not properly before the CDRB because it was not raised to the

Commissioner (id.).

CDRB emphasized that “Petitioners' Notices of Dispute generally challenged HRA's

authority to recoup unspent HCRA funds. But that was a legal, rather than a factual, challenge.

Specifically, petitioners did not dispute the amount of HCRA funds that HRA sought to recoup.

Petitioners claimed that they were unable to raise this challenge in their April 2009 Notices of

Dispute because HRA did not distinguish between HCRA and non-HCRA funds until it sent

payment demands on October 5, 2009. The Board disagrees” (id. at 7 [citations omitted and

emphasis in the original]).

CDRB rationalized that “Even if petitioners only learned of the distinction between

HCRA and non-HCRA funds for the first time in October 2009, as they suggest, they did not file

another Notice of Dispute with the HRA Commissioner at that time. Instead, petitioners chose to

raise this issue with HRA employees involved with the audit in letters dated November 4, 2009”

(id.). It also rejected petitioners’ request that they have an opportunity to show that they properly

spent the HCRA funds on recruitment and retention, although not in the same fiscal year (id.).

CDRB insisted that “The dispositive and undisputed fact is that petitioners failed to expend the

HCRA funds in the fiscal year received. Accordingly, even if petitioners could make a showing

that HCRA funds were eventually properly spent, it would not change the outcome” (id. at 8).

The Court finds the CDRB’s decision was rational and that petitioners did not meet their

burden in an Article 78 proceeding to annul this determination. CDRB rationally found, relying

on recent appellate cases, that HRA was the correct entity to perform the audit and that there was

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no dispute that petitioners failed to use the HCRA funds in the fiscal year in which they were

received. This Court cannot set that determination aside on this record.

Petitioners’ claims that it never got a chance to have a hearing on the merits is belied by

the fact that the CDRB argues that there is no dispute that petitioners failed to spend the subject

funds. The Court also points out that, as CDRB argued, petitioners’ original notices of claim

from 2009 raised arguments about whether HRA had the right to perform the audit. Those

notices of claim were not focused on the amounts sought by HRA.

CDRB also rationally rejected petitioners’ claim that they used the HCRA funds to make

up a shortfall with a workers’ compensation self-insurance trust by citing to a binding First

Department case (id.). In Personal-Touch Home Care of N.Y., Inc. v City of New York Human

Resources Admin. (201 AD3d 532, 160 NYS3d 40 [1st Dept 2022]), the First Department

concluded that CDRB cited a rational basis for upholding HRA’s denial of a provider’s request

to divert unspent Medicaid funds to cover the deficit of a self-insurance trust. In other words,

CDRB was correct to assert that it could rely upon HRA’s denial of petitioners’ argument that it

be permitted to use the HCRA funds for another purpose.

To the extent that petitioners claim that the CDRB ruling violates certain Medicaid

regulations by not providing it with a “fair hearing”, the Court observes that petitioners

participated in the ADR process under the parties’ contracts. The contracts provided that

petitioners’ “sole remedy shall be to initiate dispute resolution pursuant to Article 8.15 of Part II

of this Agreement” (NYSCEF Doc. No. 5, at 7). That is what occurred here, with any agency

head determination to be appealed to the CDRB (see id. at § 8.15). Nor did petitioners cite to any

specific demands for a such a hearing during the many years of this dispute.

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Summary

Simply put, this Court sees no reason to vacate CDRB’s determination. In this Court’s

view, CDRB rendered a decision on the merits of the dispute in front of it. The instant dispute

concerned, as an initial matter, whether or not HRA was the proper agency to perform the audit

of petitioners and to recoup the unspent HCRA funds. CDRB rationally cited to binding cases

for the proposition that HRA could seek recoupment. It also pointed out that petitioners did not

dispute that they had not spent the funds within the same fiscal year in which they were received.

The vast majority of petitioners’ arguments appear to raise issues that were not in its

notices of dispute. As CDRB stressed, it “does not engage in factfinding” and is limited to the

record below (NYSCEF Doc. No. 4 at 8). Put another way, CDRB’s role is not to engage in a de

novo fact finding; its role is only to evaluate the agency’s determination. The Court finds that

CDRB did that here and came to a rational conclusion.

Accordingly, it is hereby

ADJUDGED that the petition is denied, this proceeding is dismissed along with costs and

disbursements to be awarded by the Clerk in favor of respondents and against petitioners upon

presentation of proper papers therefor.

2/20/2024 $SIG$

DATE ARLENE P. BLUTH, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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