HENRY PITMAN, Magistrate Judge.
In letters dated October 19, 2015 and November 7, 2015, plaintiff seeks to have the Court provide counsel for him. For the reasons set forth below, the applications are denied without prejudice to renewal.
Unlike a criminal case, there is no right to the appointment of counsel in a civil case such as this. There is no provision of the Constitution or statutory provision that requires or permits the Court to appoint, at public expense, an attorney to represent a litigant in a civil case.
Nevertheless, the Court can and does request volunteer attorneys ("pro bono counsel") to represent indigent civil litigants if certain conditions are met.
The factors to be considered in determining whether to request
The Court of Appeals for the Second Circuit has
Plaintiff's application does not address what efforts plaintiff has made to obtain counsel on his own or any special reasons why plaintiff is unable to litigate this case without counsel. Nevertheless, even if I assume that these criteria are met, the case does not appear to have sufficient merit to warrant a request for representation to pro bono counsel.
The Amended Complaint alleges, in pertinent part, that a state employee improperly disclosed information concerning plaintiff's medical status to other inmates. I shall assume that plaintiff can prove this fact. However, it seems doubtful that these allegations state a viable claim. A number of cases have held that there is no private right of action under the Health Insurance Portability and Accountability Act ("HIPAA"). In other words, HIPPA does not permit an aggrieved individual to sue for damages based on an unauthorized disclosure of medical information. Copies of three of these decisions —
Accordingly, plaintiff's application for the appointment of counsel is denied without prejudice to renewal. Any renewed application for counsel should address the factors identified above.
SO ORDERED.
Tully, Rinckey, PLLC, David A. Fallon, Esq., of Counsel, Albany, NY, for Plaintiff.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., James A. Resila, Esq., Albany, NY, for Defendants.
Luibrand Law Firm, PLLC, Kevin A. Luibrand, Esq., Latham, NY, for Defendant Elaine Young.
MAE A. D'AGOSTINO, District Judge.
Plaintiff was employed by RCSD as a corrections officer from 1990-1996 and then again from 2003 until the present. See Dkt. No. 1 at ¶ 7. Plaintiff asserts that in March of 2013, he received notice from Samaritan Hospital that his medical records had been accessed on multiple occasions without Plaintiffs consent by Defendants Dinan and Young. Id. at ¶¶ 8-10. Plaintiff claims that Defendants Dinan and Young are authorized as RCJ nurses to access the hospital's electronic medical record system in order to retrieve inmate's records but that they exceeded their authority when they accessed Plaintiffs records. Id. at ¶¶ 11, 24. Plaintiff brings this action under § 1983 for violation of his Fourteenth Amendment right to privacy. Id. at ¶ 24. Plaintiff alleges that Defendant Mahar should have known, knew, or even directed Defendants Dinan and Young to access his records. Id. at ¶¶ 14, 24, 27.
Plaintiff also brings this claim against RCSD and Sheriff Mahar alleging a pattern and practice at RCJ of high ranking officials improperly accessing computer databases in order to obtain employee's personal and medical information. Id. at ¶¶ 14, 15, 32. Plaintiff claims that Defendant Mahar used his medical information in an attempt to terminate him in 2004 and that other employees were subjected to similar actions. Id. at ¶ 13. Finally, Plaintiff states that the County failed to adequately train, supervise, and/or discipline Defendants Dinan and Young for exceeding their authority, demonstrating a deliberate indifference to constitutional violations against employees. Id. at ¶¶ 35, 36, 38. The original complaint contained forth and fifth causes of action under the Americans with Disabilities Act ("ADA") and Computer Frauds and Abuse Act ("CFFA"), which have subsequently been withdrawn. 42 U.S.C. § 12112; 18 U.S.C. § 1030; Dkt. No. 22-1 at 12.
On December 22, 2014, Plaintiff filed an opposition to Defendants' 12(b)(6) motion. Dkt. No. 22-1. Plaintiff reasserts and offers further arguments in support of counts one, two, and three of the complaint and withdraws counts four and five. Id. at 12. Plaintiff also requests that the Court either direct the Clerk to amend the caption of the complaint listing RCSD as a Defendant or grant Plaintiff leave to amend the complaint to name the "County of Rensselaer" as a party instead because
Id. at 2 (citation omitted). Finally, Plaintiff submits that the original complaint is sufficient but requests that, if the Court finds otherwise, that it grant him leave to amend the complaint. Id. at 13.
In their reply, Defendants again allege that Plaintiffs complaint fails to state a claim. See Dkt. No. 25 at 2. Additionally, Defendants argue that Plaintiff fails to identify a constitutional right that was violated, as required under § 1983. Id. at 7. Further, Defendants assert that unauthorized access to medical records could be construed as a HIPPA violation and therefore cannot serve as the basis of a private right of action under § 1983. Id. at 8-9.
On January 10, 2015, Plaintiff filed a sur-reply requesting denial of Defendants' motion and cross-moving for leave to amend the complaint under Rule 15(a)(2) of the Federal Rules of Civil Procedure. Dkt. Nos. 35-2, 35-3. Plaintiff makes five changes in the proposed amended complaint. First, Plaintiff alters the caption to read "County of Rensselaer" instead of "Rensselaer County Sheriffs Department." Dkt. No. 35-2 at 4. Second, Plaintiff removes the fourth and fifth causes of action, which were previously withdrawn. Id. Third, Plaintiff consolidates the first three causes of action from the original complaint into count one of the proposed amended complaint, clarifying that the constitutional right at issue is Plaintiffs right to privacy under the Fourteenth Amendment. Id. Plaintiff clarifies that the specific medical condition he suffers from is depression. See Dkt. No. 35-4 at 10. Fourth, Plaintiff changes the language of the complaint to indicate that he is seeking punitive damages against the individual Defendants. See Dkt. No. 35-2 at 4. Finally, Plaintiff adds a new claim alleging First Amendment retaliation. Id.
On January 30, 2015, Defendants filed opposition to Plaintiffs motion, arguing that granting leave to amend the complaint would be futile because the proposed amended complaint is deficient. See Dkt. No. 37 at 2. Defendants argue that the Fourteenth Amendment protects against unauthorized disclosure of medical information but not improper access. Defendants therefore assert that Plaintiffs rights were not violated. Id. at 6. Instead, Defendants again state that improper access of medical records is best construed as a HIPAA violation and cannot therefore serve as the basis of a § 1983 claim. Id. In the alternative, Defendants state that even if improper access to medical information is considered a privacy violation, Plaintiff still fails to state a claim because Plaintiff here suffers from depression, which is not a condition that qualifies for constitutional protection. Id. at 7-8.
Instead, Defendants argue that Plaintiff should have filed this suit as a violation of the ADA because depression is considered a "disability" under the Act. Id. at 10. Since Plaintiff withdrew his ADA claim after failing to properly file his complaint with the Equal Employment Opportunity Commission ("EEOC"), Defendants argue that "he should not be allowed to bring a Section 1983 [claim] to remedy an alleged harm which should have been brought under the ADA." Id. at 10. Finally, Defendants move to dismiss Plaintiffs newly introduced First Amendment violation claim on the grounds that it is time barred under New York's three year statute of limitations. Id. at 12.
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief.
The Federal Rules provide for liberal leave to amend a complaint, and state that a court should freely grant leave to re-plead "when justice so requires." Fed.R.Civ.P. 15(2). It is "well-established that `outright dismissal for reasons not going to the merits is viewed with disfavor in the federal courts.'" Harrison v. Enventure Capital Group, Inc., 666 F.Supp. 473, 479 (W.D.N.Y.1987) (quoting Nagler v. Admiral Corporation, 248 F.2d 319, 322 (2d Cir.1957)). For this reason, "dismissals for insufficient pleadings are ordinarily with leave to replead." Stern v. General Elec. Co., 924 F.2d 472, 477 (2d Cir.1991). Leave to amend a pleading need not be granted, however, if it would be futile to do so.
Section 1983 establishes a civil cause of action for deprivation of rights secured by the Constitution or a federal statue: "Every person who, under color of [state law, subjects] . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any right, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]" 42 U.S.C. § 1983. In order to state a claim under Section 1983, a plaintiff must show that: (1) "some person has deprived him of a federal right," and (2) "the person who deprived him of that right acted under the color of state . . . law." Velez v. Levy, 401 F.3d 75, 84 (2d Cir.2005) (quoting Gomez v. Toledo. 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)).
Under New York State law, "`a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence.'" Polite v. Town of Clarkstown, 60 F.Supp.2d 214, 216 (S.D.N.Y.1999) (quotation omitted). As a result, municipal departments in New York are not amenable to suit. See id. (citations omitted). However, where a plaintiff lists a department or subdivision of a municipality in the caption of the complaint, but it is otherwise clear the plaintiff intended to name the municipality, the court can either direct the Clerk to modify the caption or grant the plaintiff leave to amend the complaint to remedy the error. See United States v. Edwards, 241 F.R.D. 146, 149 (E.D.N.Y.2007); see also Bernier v. N.Y.C.D.O.C., No. 96 CIV. 7752(HB), 1997 WL 639028, *1 (S.D.N.Y. Oct.15, 1997) (holding that in such instances "the appropriate remedy . . . is not dismissal of the case against the City, which has received notice and has been defending the action, but amendment of the caption").
In this instance, although RCSD is listed in the caption, Plaintiff properly identifies the municipal Defendant as the "County of Rensselaer" in all relevant point headings and otherwise throughout the complaint. See Dkt. No. 1 at 2, 7, 8. Further, Plaintiff properly served the County Clerk, County Executive, and County Attorney, thereby putting the County on notice of this suit against it. See Dkt. Nos. 2-2, 2-3, 2-4. As such, this Court grants Plaintiff's motion for leave to amend insofar as the proposed amended complaint properly names the County of Rensselaer as a Defendant.
To state a substantive due process claim under § 1983, a plaintiff must demonstrate two elements: (1) the plaintiff "had a valid property interest in a benefit that was entitled to constitutional protection;" and (2) "the defendant's actions were `so outrageously arbitrary as to be a gross abuse of governmental authority.'" Taluker v. County of Rensselaer, No. 1:12CV1765, 2013 U.S. Dist. LEXIS 78809, *13, 2013 WL 2446246 (N.D.N.Y. June 5, 2013) (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir.1999)). The right to privacy and confidentiality of the status of one's health is a protected interest under the Fourteenth Amendment. See Rush v. Aruz, No. 00Civ3436(LMM), 2004 WL 1770064, *11 (S.D.N.Y. Aug. 6, 2004) (citation omitted); see also Doe v. City of New York 15 F.3d 264, 267 (2d Cir.1994) (quoting Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). The interest in privacy "goes to the heart of one's right to be left alone." Loper v. New York City Police Dep't, 802 F.Supp. 1029, 1042 (S.D.N.Y. 1992).
Some courts have required an additional element of wrongdoing in cases where there was no disclosure. See Appel v. Spiridon, 521 Fed. Appx. 9, 11 (2d Cir.2013) (stating that "invading or intending to invade the privacy of an employee's medical or mental health records will violate the employee's Fourteenth Amendment right to substantive due process if the employer's intent is to injure or to spite the plaintiff'); see also Lankford v. City of Hobart, 27 F.3d 477, 479 (10th Cir.1994) (finding that the right to privacy can protect against an employer accessing an employee's private information by seizing her medical records from a local hospital without her consent); Tapia v. City of Albuquerque, 10 F.Supp.3d 1207, 1301 (D.N.M.2014) (holding that a government employer may have violated plaintiffs' substantive due process privacy rights by accessing their records without public disclosure . . . [where] the government officials involved accessed the plaintiffs' confidential information as part of an unlawful campaign of sexual harassment") (citation omitted). Even assuming that this additional element is required, the Court finds that Plaintiff plausibly states a claim against Defendants because unauthorized access to medical records can be construed as a violation of confidentiality. Further, Plaintiff alleges that Defendants accessed his files in bad faith and with the intent to use the information to retaliate against Plaintiff, thus asserting an additional element of wrongdoing. See Dkt. No. 35-3 at ¶¶ 20, 33, 34, 36.
Defendants claim that improper access to medical records is best construed as a HIPAA violation and, as such, Plaintiff was required to"use the mechanisms of that statute to have his claim remedied." Dkt. No. 25 at 8-9. It is well established that, because there is no private right to action under HIPAA, a violation of the Act cannot serve as the basis of a § 1983 claim. See Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of Am., 639 F.Supp.2d 371, 377 (S.D.N.Y.2009); see also Adams v. Eureka Fire Prot. Dist., 352 Fed. Appx. 137, 139 (8th Cir.2009) (holding that "[s]ince HIPAA does not create a private right, it cannot be privately enforced either via § 1983 or through an implied right of action"). However, contrary to Defendants' assertions, the fact that there is no private right of action under HIPAA does not preclude Plaintiffs Fourteenth Amendment right to privacy claim because it is predicated on conduct outside the scope of HIPAA.
In support of their position, Defendants cite the standard articulated by the Supreme Court in Gonzaga and Abrams. See Gonzaga Univ. v. Doe, 536 U.S. 273, 282, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 126, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). In those cases, however, the Supreme Court addressed when a federal statute creates a personal right to enforce pursuant to Section 1983. See Gonzaga Univ., 536 U.S. at 279-80. In the present matter, however, Plaintiff is not seeking to enforce his rights secured by HIPAA. Not once is HIPAA mentioned in either the original or amended complaints. Rather, in both Plaintiffs original and proposed amended complaints, he asserts that Defendants violated his Fourteenth Amendment right to privacy. See Dkt. No. 1 at ¶¶ 23, 24; Dkt. No. 35-3 at ¶¶ 32, 33. Since Plaintiff alleges that Defendants violated the Constitution rather than a federal statute, Defendants' reliance on Gonzaga and Abrams is misplaced. As such, this Court denies Defendants' motion to dismiss on these grounds.
Based on the foregoing, the Court denies Defendants' motion to dismiss.
"Although municipalities are within the ambit of section 1983, municipal liability does not attach for actions undertaken by city employees under a theory of respondeat superior." Birdsall v. City of Hartford, 249 F.Supp.2d 163, 173 (D.Conn.2003) (citing Monell v. New York City Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Despite the fact that respondeat superior liability does not lie, a municipal entity or employee sued in his or her official capacity can be held accountable for a constitutional violation which has occurred pursuant to "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers . . . [or] pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision-making channels." Monell, 436 U.S. at 690-91. Such municipal liability can be established in a case such as this in several different ways, including through proof of an officially adopted rule or widespread, informal custom demonstrating "a deliberate government policy or failing to train or supervise its officers." Bruker v. City of New York, 337 F.Supp.2d 539, 556 (S.D.N.Y.2004) (quoting Anthony v. City of New York, 339 F.3d 129, 140 (2d Cir.2003)). A plaintiff may also show that the allegedly unconstitutional action was "taken or caused by an official whose actions represent an official policy," or when municipal officers have acquiesced in or condoned a known policy, custom, or practice. See Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000), cert. denied sub nom., County of Schenectady v. Jeffes, 531 U.S. 813, 121 S.Ct. 47, 148 L.Ed.2d 16 (2000)); see also Wenger v. Canastota Cent. Sch. Dist., No. 5:95-CV-1081, 2004 WL 726007, *3 (N.D.N.Y. Apr.5, 2004).
Similarly, Plaintiff states a plausible claim that the County failed to adequately train, supervise, and or discipline Defendants Dinan and Young regarding exceeding their authority to improperly access employees' records. See Dkt. No. 35-3 at ¶¶ 18-19, 21-24. Plaintiff claims that Defendant Mahar was aware that Defendants Dinan and Young improperly accessed employee records. See id. at ¶¶ 18-20, 23. Plaintiff likewise states that Defendant Mahar failed to discipline another RCJ employee after he pled guilty in a separate action to unauthorized use of a computer. See id. at ¶ 26. That individual is still an RCJ employee. Id.
For these reasons, Defendants' motion to dismiss for failure to state a claim for Monell liability is denied.
To state a claim of retaliation under the First Amendment, a plaintiff must allege facts plausibly suggesting the following: (1) the speech or conduct at issue was "protected;" (2) the defendants took "adverse action" against the plaintiff namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action—in other words, that the protected conduct was a "substantial or motivating factor" in the defendant's decision to take action against the plaintiff. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (citing Dawes v. Walker, 239 F.3d 489, 492 (2d. Cir.2001)).
In count two of the proposed amended complaint, Plaintiff asserts that Defendants retaliated against him for engaging in political speech from 2003 through January 30, 2012, when Plaintiff was finally placed on administrative leave. See Dkt. No. 35-3 at ¶ 48. Specifically, Plaintiff states that he was active in the political campaigns of Defendant Mahar's opponents in both the 2003 and 2011 elections for County Sheriff. Id. at ¶¶ 7, 14. Defendant Mahar's opponent in 2003 also happened to be Plaintiffs uncle. Id. at ¶ 7. Plaintiff was also an active union participant in 2005. Id. at ¶ 10. Plaintiff alleges that in retaliation for these activities, Defendant Mahar targeted him with constant harassment and intentionally assigned him to undesirable tasks at RCJ. Id. at ¶¶ 11, 12. Defendant Mahar also suspended Plaintiff on five different occasions without pay, each instance of which was eventually deemed baseless. Id. at ¶ 11. Further, Plaintiff claims that from 2004 through late January 2012, Defendant Mahar "would routinely tell Rodgers that he should `go on disability' . . . despite the fact that Rodgers was medically fit to perform the essential functions of his position." Id. at ¶ 13. Finally, on January 30, 2012, just twenty-seven days after being sworn in as Sheriff, Defendant Mahar placed Plaintiff on administrative leave, where he remains to this day. Id. at ¶ 15. Plaintiff states that there is no legitimate justification for Defendant Mahar's actions. Id. Defendants move to dismiss this claim on the grounds that once Plaintiff's allegations are properly limited by the controlling statute of limitations, the proposed amended complaint fails to state a plausible retaliation claim. See Dkt. No. 37 at 13. The statute of limitations applicable to § 1983 claims is the "statute of limitations applicable to personal injuries occurring in the state in which the appropriate federal court sits." Dory v. Ryan, 999 F.2d 679, 681 (2d Cir.1993) (citation omitted). In New York State, the statute of limitations for personal injury claims is three years. See id. (citing N.Y. Civ. Prac. L. § 214(5) (McKinney 1990)) (other citations omitted); see also Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.2002) (holding that § 1983 claims arising in New York are subject to a three-year statute of limitations). Further, accrual begins when the plaintiff "knows or has reason to know of the injury that is the basis for his action." Pauk v. Bd. of Trustees of City Univ. Of New York, 654 F.2d 856, 859 (2d Cir. 1981) (citation omitted).
After carefully reviewing the entire record in this matter, the parties' submissions and the applicable law, and for the above stated reasons, the Court hereby
Jorge Perez, NIC/Medical Unit, East Elmhurst, NY, pro se.
KATHERINE B. FORREST, District Judge.
Plaintiff, an inmate at the City of New York Department of Correction, alleges a sequence of events occurring on February 21, 2013, the date on which he was arrested. (Compl.2.) Specifically, plaintiff claims that defendant Ramos was instructed by an unspecified "outside hospital doctor" to continue administering to him certain pain and diabetes medications, but that Ramos discontinued treatment. (Compl.3.) Plaintiff notified both defendants Ramos and Bowen of his lack of medical treatment, but found that they did not follow up with him, and that "they [did] not care" when he was "feeling sick or not doing very well." (Id.) Plaintiff further alleges that the nurses named in his complaint refused to provide him with treatment that other patients received. (Id.) Finally, plaintiff alleges that defendants violated HIPAA by discussing his medical issues with officers who had no medical experience, as well as at least one other inmate. (Id.)
Defendants filed the instant motion to dismiss on September 16, 2013, arguing that plaintiff has failed to state a claim under both causes of action. (ECF No. 22.) Plaintiff did not oppose defendants' motion.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in plaintiffs favor, but does not credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Id.
"[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. . . ." Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citations and internal quotation marks omitted). Accordingly, the Court "liberally construe[s] pleadings and briefs submitted by pro se litigants . . . reading such submissions to raise the strongest arguments they suggest." Berlin v. United States, 478 F.3d 489, 491 (2d Cir.2007). However, even a pro se complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see Fuentes v. Tilles, 376 F. App'x 91, 92 (2d. Cir.2010) (affirming the district court's dismissal of a pro se complaint for failure to state a claim).
In deciding an unopposed motion to dismiss, the Court is to "assume the truth of a pleading's factual allegations and test only its legal sufficiency. Thus, although a party is of course to be given a reasonable opportunity to respond to an opponent's motion, the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law." McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir.2000) (citation omitted).
Construed liberally, plaintiffs complaint states two causes of action: first, deliberate indifference to his medical needs in violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983, and second, a claim for violation of HIPAA.
To succeed on a claim under 42 U.S.C. § 1983 for deprivation of medical care, a plaintiff must show that a defendant undertook "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106; see also Cuoco, 222 F.3d at 106. "The standard for deliberate indifference includes a subjective component and an objective component." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011).
To fulfill the subjective prong of the standard, "the official charged with deliberate indifference must act with a `sufficiently culpable state of mind.' That is, the official must `know of and disregard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Id. (alterations omitted) (quoting Wilson v. Seiter. 501 U.S. 294, 298 (1991); Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Here, plaintiff alleges that an outside hospital doctor recommended that defendant Ramos administer or continue administering certain medications, and that Ramos failed to do so. (Compl.3.) Plaintiff also alleges that defendants Ramos and Bowen acted "like they do not care." (Id.) However, these barebones allegations fail to rise to the level required for a "sufficiently culpable state of mind." See Hill. 657 F.3d at 122. The complaint alleges no facts indicating that Ramos and Bowen knew of and disregarded any risk—let alone an excessive risk—of harm to plaintiff. Similarly, while plaintiff alleges that the other nurses did not provide him with medication with which other prisoners were provided, the complaint is devoid of allegations relevant to their state of mind and whether they were aware of any risk that arose from their failure to provide him medication.
To fulfill the objective component of the deliberate indifference standard, plaintiff must show that "the alleged deprivation [is] sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Hill, 657 F.3d at 122 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)).
Here, plaintiff does not allege any condition that would constitute a sufficiently serious deprivation of medical care. Plaintiff alleges only that the medical staff did not did not follow up with him and acted like "they [did] not care" when plaintiff was "feeling sick or not doing very well." (Compl.3.) At no point does plaintiff allege an "urgen[t]" condition that "may produce death, degeneration, or extreme pain." Hill, 657 F.3d at 122. Plaintiff also does not allege that defendant Ramos's decision not to administer medication to plaintiff, or the nurses' failure to provide him with the same medication other patients received, created such a condition.
As a result, plaintiffs complaint does not meet the objective component of the deliberate indifference standard. See Fox v. Fischer, 242 F. App'x. 759, 759 (2d Cir.2007) (summary order) (holding that plaintiff failed to meet the objective prong of a deliberate indifference claim because there was "no allegation that the change in medication caused harm").
Because plaintiff meets neither the subjective nor the objective component of the deliberate indifference standard, his claim against the individual defendants for deprivation of medical care must be dismissed.
Plaintiff names the City of New York as one defendant in this case. (Compl.1.) However, a municipality can only be liable under 42 U.S.C. § 1983 where the "execution of a government's policy or custom . . . inflicts the injury." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). In particular, to establish municipal liability, a plaintiff must demonstrate three elements: "(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983).
Here, plaintiff has not identified a policy or custom—or even suggested that one may exist—relevant to medical treatment and dispensing medication that led to a violation of his constitutional rights. (See generally Compl.) Thus, even accepting all of plaintiffs' factual allegations as true and liberally construing his complaint, his claim against the City of New York must be dismissed.
"HIPAA established standards for the protection of individual health information, and allowed the promulgation of regulations designed to protect the privacy and accuracy of individually identifiable health information." Alsaifullah v. Furco, No. 12 Civ. 2907(ER), 2013 WL 3972514, at *17 (S.D.N.Y. Aug 2, 2013). Here, plaintiff alleges violations of HIPAA by unspecified individuals who discussed his medical issues with corrections officers and inmates. (Compl.3.)
However, HIPAA does not provide for a private right of action. See Warren Pearl Constr. Corp., et al. v. Guardian Life Ins. Co. of Am., 639 F.Supp.2d 371, 377 (S.D.N.Y.2009) (collecting cases across numerous circuits standing for that proposition). Rather, HIPAA enforcement actions are in the exclusive purview of the Department of Health and Human Services. See 42 U.S.C. § 300gg-22(a) (explaining that "the Secretary" shall enforce HIPAA); Shallow v. Scofield, 11 Civ. 6028(JMF), 2012 WL 4327388, at *4 (S.D.N.Y. Sep. 21, 2012) ("[O]nly the Secretary of HHS or authorized state authorities may bring a HIPAA enforcement action.").
Accordingly, plaintiffs HIPAA claim must be dismissed.
For the reasons set forth above, defendants' motion is GRANTED, and plaintiffs complaint is DISMISSED without prejudice for failure to state a cause of action pursuant to Fed.R.Civ.P. 12(b)(6).
The Court is mindful that a plaintiff should be granted leave to amend "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco, 222 F.3d at 112. Here, an amended complaint could in theory state a valid claim, if plaintiff made specific allegations as to the state of mind of the individual defendants and as to plaintiffs medical conditions.
Accordingly, the Court grants plaintiff leave to reopen the case within 60 days. Plaintiff may reopen the case by filing an amended complaint addressing the infirmities discussed in this Decision by
The Clerk of Court is hereby directed to close the motion at ECF No. 22 and to terminate this action.
SO ORDERED.
Paul Kenneth Stecker, Esq., Phillips Lytle LLP, New York, NY, for Defendant.
WILLIAM H. PAULEY III, District Judge:
Plaintiffs Warren Pearl Construction Corporation ("WPC"), Warren Pearl, Susan Pearl, and Warren Pearl and Susan Pearl as next friend of Ian Pearl (collectively "Plaintiffs"), bring this action pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. ("ERISA"), against Defendant Guardian Life Insurance Company of America ("Guardian") seeking to prevent Guardian from terminating coverage under a Guardian small group supplemental major medical insurance policy (the "WPC Policy"). On December 9, 2008, *374 2008 WL 5329962, this Court denied Plaintiffs a preliminary injunction on their ERISA, HIPAA, and estoppel claims (the "December 2008 Memorandum & Order"). Defendant moves for summary judgment dismissing this action. For the following reasons, Defendant's motion is granted.
From December 1, 1981 to December 1, 2008, the WPC Policy insured the major medical expense portion of the employee welfare benefit plan (the "Plan") of Swim Construction Company, its successor, Courbette Construction, and its successor, WPC. (Plaintiffs Local Rule 56.1 Counterstatement of Material Facts dated June 24, 2009 ("Pl. Counterstatement") ¶ 1.) The Certificate of Coverage outlines the Plan's insurance benefits. It provides that "coverage ends . . . on the date [eligible employees] stop being a member of a class of employees eligible for insurance under this plan, or when this plan ends for all employees." (Declaration of John W. Fried dated June 24, 2009 ("Fried Decl.") Ex. 12: Certificate of Coverage at WPC-0457.) (emphasis in original). It also defines "Plan" as "the Guardian plan of group insurance purchased by your employer." (Certificate of Coverage at WPC-0444.) (emphasis in original).
The WPC Policy covered Warren Pearl, his wife Susan Pearl, and their son Ian Pearl. (Pl. Counterstatement ¶ 4.) Ian Pearl suffers from Type II Spinal Muscular Atrophy, a form of muscular dystrophy. (Pl. Counterstatement ¶ 5.) In 1991, Ian Pearl suffered full respiratory arrest that left him entirely ventilator-dependent. (Pl. Counterstatement ¶ 6.) As a result, Ian Pearl receives 24—hour nursing care in his parents' home in Florida. (Pl. Counterstatement ¶ 6.) The WPC Policy has provided WPC employees and their dependents with nursing and home health care benefits without any lifetime or annual benefit limitations. (Pl. Counterstatement ¶ 7.)
The WPC Policy, designated form "RO," was the first medical contract sold by Guardian in New York. (Pl. Counterstatement ¶ 2.) As of August 1, 1987, Guardian stopped selling health insurance policies designated "RO" to new policyholders in the New York small group market,
In 2006, Guardian commenced an initiative referred to as "Moving Forward," which was designed to increase Guardian's competitive position by reducing what it paid out in claims. (P1. Counterstatement ¶ 29.) As part of its "Risk Management Initiative," Guardian sought to eliminate products or groups of products with high claims experience. (Deposition transcript
In November 2006, Guardian began studying its older policy forms in those states where Guardian's loss ratios were high. (Pl. Counterstatement ¶ 41.) Guardian examined specific plans and groups by claims experience. (Pl. Counterstatement ¶ 84.) That analysis identified incurred claims and loss ratios on a policy-by-policy basis. (Pl. Counterstatement ¶ 50.) Guardian considered such factors as to whether each policy's claims were based on an ongoing medical condition, which was likely to continue, or a terminal illness. (Pl. Counterstatement ¶ 55; Affidavit of Ariel Fernando dated June 10, 2009 ¶ 6.) The WPC Policy was identified as one with significant losses as part of that examination. (Pl. Counterstatement ¶ 58.) Guardian identified New York, New Jersey, and South Carolina as the states with the greatest losses. (Pl. Counterstatement ¶ 49.) Guardian determined that 29.9% of all medical claims paid in New York under the "R0" policy were for private duty nursing. In New Jersey, 53.3% of all medical claims paid under the "R0" policy were for private duty nursing. (Pl. Counterstatement ¶ 69.)
In January 2007, Guardian decided to discontinue the older policy forms in New York, New Jersey, and South Carolina because policyholders in those states were generating the highest claims. (Pl. Counterstatement ¶ 79.) Subsequently, Guardian also decided to discontinue those policies in Colorado. (Pl. Counterstatement ¶ 80.)
By letter dated July 2, 2007, Guardian alerted the New York State Insurance Department ("DOI") that it would discontinue all "R0" policies offered to small groups and "offer [them] the option to purchase one of our actively marketed plans under our R3 contract." (Fried Decl. Ex. 46: Guardian notice of intent of policy discontinuance to DOI dated July 2, 2007 ("Discontinuation Letter") at 1.) Guardian cited three "Reasons for Discontinuance": (1) "[t]hese plans were written under our oldest generation of contract under which the language is vague and obsolete"; (2) "these plans are complex to administer and we hope this discontinuation will reduce the amount of complexity in administering similar plans"; and (3) "the very high loss ratios we've experienced over the last two years." (Discontinuation Letter at 2-3.) In the Discontinuation Letter, Guardian also informed DOI that it "will offer these small employers affected by the discontinuation the option to purchase all other hospital, surgical and medical expense coverage currently being offered," and that "[a]ll new plans sold since 1992 has [sic] been under the R3 contract." (Discontinuation Letter at 1.) At the time, Guardian had approximately 54 "R0" policyholders in New York, including WPC. (Plaintiffs' Local Rule 56.1 Statement ¶ 3.) On September 13, 2007, DOI informed Guardian that "[t]he letters and supporting material regarding your company's product discontinuance are now acceptable." (Affidavit of Paul K. Stecker dated July 2, 2009 Ex. A at 330: E-mail from Stephen Rings to Ariel Fernando.)
By letter dated August 25, 2008, WPC lodged its objection to Guardian's discontinuation of the WPC Policy with DOI. (Pl. Counterstatement ¶ 114.) In September 2008, DOI responded, concluding that it "found no evidence that [Guardian] violated New York State Insurance Laws or Regulations." (Fried Decl. Ex. 56: DOI response to WPC complaint dated September 19, 2008.) DOI's State Health Bureau representative testified:
(Deposition transcript of Stephen Rings dated Jan. 23, 2009 at 38-39.)
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Davis v. Bilge, 505 F.3d 90, 97 (2d Cir.2007). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In determining whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505; Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir.2005).
Plaintiffs allege that Guardian violated the Health Insurance Portability and Accountability Act ("HIPAA") and its state law counterpart by terminating the WPC Policy based on Ian Pearl's adverse claims experience.
HIPAA provides that "if a health insurance issuer offers health insurance coverage in the small or large group market in connection with a group health plan, the issuer must renew or continue in force such coverage at the option of the sponsor of the plan." 42 U.S.C. § 300gg-12(a). One exception permits an insurer to terminate a particular type of coverage in the small group market where "the issuer acts uniformly without regard to the claims experience of those sponsors or any health status-related factor relating to any participants or beneficiaries covered. . . ." 42 U.S.C. § 300gg-12(c)(1)(C). HIPAA provides that only the Secretary of Health and Human Services or other authorized state authorities may bring a HIPAA enforcement action. See 42 U.S.C. § 300gg-22.
Section § 1182(a)(1) of ERISA provides, "Subject to paragraph (2), a group health plan, and a health insurance issuer offering group health insurance coverage in connection with a group health plan, may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan based on . . . [h]ealth status [and, or] . . . [c]laims experience." 29 U.S.C. § 1182(a)(1). Subsection (2) provides that (a)(1) shall not be construed "to require a group health plan, or group health insurance coverage, to provide particular benefits other than those provided under the terms of such plan or coverage." 29 U.S.C. § 1182(a)(2). Section 1182 "may be enforced by an ERISA participant's claim `to enjoin any act or practice which violates any provision of this subchapter.'" Werdehausen v. Benicorp Ins. Co., 487 F.3d 660, 668 (8th Cir.2007) (quoting 29 U.S.C. § 1132(a)); see also Stang v. Clifton Gunderson Health Care Plan, 71 F.Supp.2d 926, 933 (W.D.Wis.1999) (permitting plaintiff to bring an action under § 1182 based on the private right of action available under § 1132(a)).
No court has addressed the meaning of the phrase "establish rules for eligibility." Thus, the question—whether Guardian's decision to withdraw the "R0" form policy from the New York small group market "establish[ed] rules for eligibility" within the meaning of 29 U.S.C. § 1182(a)(1)— is an issue of first impression.
Construction of a statute begins with the words of the text. Mallard v. United States Dist. Court, 490 U.S. 296, 300, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989); Cat. Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 101 (2d Cir.2004) (quoting Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir.2003)). "Statutory construction . . . is a holistic endeavor."
The phrase "establish rules for eligibility" does not appear on its face to address an insurer's decision to withdraw a policy form from the market. The regulations promulgated under HIPAA interpreting the phrase provide examples of rules for eligibility that violate the statute. See 29 C.F.R. § 2590.702(b) (1)(iii); see also Ames v. Group Health Inc., 553 F.Supp.2d 187, 193 (E.D.N.Y.2008) (turning to the HIPAA regulations to determine whether Defendant's rules for eligibility violated § 1182(a)). In one example in the regulations, an employer sponsors a group health plan available to all employees who enroll within the first 30 days of employment, but those who enroll later are required to pass a physical examination. The HIPAA regulations instruct that "the requirement to pass a physical examination in order to enroll in the plan is a rule for eligibility that discriminates based on one or more health factors. . . ." 29 C.F.R. § 2590.702(b)(1)(iii). In another example, an employer's group health plan permits employees who enroll during the first 30 days of employment to choose between two benefit packages, while those who enroll later are offered only one option conditioned on their good health. Again, the regulations instruct that "the requirement to provide evidence of good health in order to be eligible for late enrollment . . . is a rule for eligibility that discriminates based on one or more health factors. . . ." 29 C.F.R. § 2590.702(b)(1)(iii). Two other examples in the HIPAA regulations describe similar scenarios.
The examples in the HIPAA regulations suggest that a "rule for eligibility" presupposes the existence of a policy and attendant coverage. In such circumstances, the statute prohibits insurers from establishing eligibility criteria based on health status or claims experience. However, rules for eligibility lose their raison d'etre when an insurer withdraws its policy from the market because eligibility determinations no longer need to be made. It would be counterintuitive to establish eligibility rules for a policy that no longer exists.
Second, interpreting "establish rules for eligibility" to apply to Guardian's decision to withdraw the "R0" policy from the market is at odds with the statute as a whole. Subsection (a)(2) provides that (a)(1) shall not be construed "to require a group health plan, or group health insurance coverage, to provide particular benefits other than those provided under the terms of such plan or coverage." 29 U.S.C. § 1182(a)(2) (A). Guardian is no longer providing any benefits under the "R0" policy, other than the one-year extension for disabled dependents. Thus, construing the phrase "establish rules for eligibility" as operating to prohibit withdrawal of the "R0" policy from the market would require Guardian to provide benefits it no longer offers.
H.R. Conf. Rep. No. 104-736, at 187 (1996), U.S.Code Cong. & Admin.News 1996, at 1865, 2000. This legislative history suggests that Congress was concerned with the disparate treatment of individuals
Plaintiffs point to C.F.R. § 2590.702(b)(1)(ii)(H) which provides that, "rules for eligibility include . . . rules relating to . . . [t]erminating coverage (including disenrollment) of any individual under the plan." However, consistent with 29 U.S.C. § 1182(a)(1), and its legislative history, the regulation specifically refers to terminating an individual's coverage, not an entire policy. Here, Guardian terminated all 54 employer groups in New York with plans covered by the "R0" policy.
Accordingly, Guardian's decision to withdraw the "R0" policy from the New York small group market did not "establish rules for eligibility" within the meaning of 29 U.S.C. § 1182(a)(1). Defendant's motion for summary judgment dismissing Plaintiffs' ERISA discrimination claim is granted.
ERISA provides that "[t]he administrator [of any employee benefit plan] shall furnish to each participant, and each beneficiary receiving benefits under the plan, a copy of the summary plan description [("SPD")]. . . ." 29 U.S.C. § 1024(b). The SPD "shall be written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." 29 U.S.C. § 1022(a). It shall set forth, inter alia, "circumstances which may result in disqualification, ineligibility, or denial or loss of benefits." 29 U.S.C. § 1022(b). "ERISA contemplates that the [SPD] will be an employee's primary source of information regarding employment benefits, and employees are entitled to rely on the descriptions contained in the summary." Layaou v. Xerox Corp., 238 F.3d 205, 209 (2d Cir.2001) (internal quotation marks and citation omitted).
The administrator is defined as "the person specifically so designated by the terms of the instrument under which the plan is operated" or, "if an administrator is not so designated, the plan sponsor." 29 U.S.C. §§ 1002(16)(A), (B). "Plan sponsor" is defined as "the employer in the case of an employee benefit plan established or maintained by a single employer." 29 U.S.C. § 1002(16)(B). To establish liability under 29 U.S.C. § 1132(a)(1)(B) for failure to provide an adequate SPD, Plaintiffs must demonstrate that Guardian was designated the plan administrator. See Lee v. Burkhart, *380 991 F.2d 1004, 1010 (2d Cir.1993) (obligation to furnish each participant with an SPD "is placed on the person designated under ERISA as the `administrator' of the plan, not every fiduciary."); Krauss v. Oxford Health Plans, Inc., 418 F.Supp.2d 416, 434 (S.D.N.Y.2005) ("Absent a specific declaration in Plan documents that an insurance company is the administrator, this Court cannot infer [administrator] status."), aff'd, 517 F.3d 614 (2d Cir.2008); see also Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 62 (4th Cir.1992) ("While it is true that an insurer will usually have administrative responsibilities with respect to the review of claims under the policy, that does not give this court license to ignore the statute's definition of plan administrator and to impose on [the insurer] the plan administrator's notification duties.").
Plaintiffs cannot point to any document designating Guardian as the plan administrator. Rather, relying on cases outside this circuit, Plaintiffs argue that Guardian may be treated as the de facto administrator because it controls all aspects of plan administration. However, the Second Circuit has rejected the holding by sister circuits "that under certain circumstances a party not designated as an administrator may be liable for failing to furnish a plan description." See Lee, 991 F.2d at 1010 n. 5; Law v. Ernst & Young, 956 F.2d 364, 372 (1st Cir.1992).
Plaintiffs' attempt to distinguish Lee is unavailing. While Lee involved a self-funded plan and an insurer's narrow responsibilities regarding claims administration, the Second Circuit's reasoning did not turn on those characteristics. See also Schnur v. CTC Comm'cns Corp. Group Disability Plan, 621 F.Supp.2d 96, 110-11 (S.D.N.Y.2008) (internal citations omitted). Rather, the Court of Appeals focused on the language of the statute, which defines an administrator as "the person specifically so designated by the terms of the instrument under which the plan is operated." 29 U.S.C. §§ 1002(16)(A) (emphasis added); Lee, 991 F.2d at 1010 n. 5; see also Schnur, 621 F.Supp.2d at 110-11. Accordingly, because Guardian was not specifically designated as the administrator, it may not be held liable for inadequate disclosures under 29 U.S.C. § 1132(a)(1)(B).
Nevertheless, to the extent Plaintiffs seek equitable relief under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), their claims remain viable. See Crocco v. Xerox Corp., 137 F.3d 105, 107 n. 2 (2d Cir.1998) (distinguishing between actions to recover benefits under § 502(a)(1)(B), which can be brought only against a plan or plan administrator, and claims for injunctive or other equitable relief under § 502(a)(3)). A plaintiff may pursue an equitable claim against a de facto administrator that failed to provide adequate disclosures.
The parties disagree over whether the Certificate of Coverage constituted an SPD. Assuming the Certificate of Coverage is an SPD, it adequately sets forth "circumstances which may result in disqualification, ineligibility, or denial or loss of benefits." 29 U.S.C. § 1022(b). "Section 1022(b) relates to an individual employee's eligibility under then existing, current terms of the Plan and not to the *381 possibility that those terms might later be changed, as ERISA undeniably permits." Wise v. El Paso Natural Gas Co., 986 F.2d 929, 935 (5th Cir.1993); Gable v. Sweetheart Cup Co., 35 F.3d 851, 858 (4th Cir.1994). Under the section titled "When Your Coverage Ends," the Certificate of Coverage clearly states, "Your coverage ends . . . when this plan ends for all employees. And it ends when this plan is changed so that benefits for the class of employees to which you belong ends." That provision is repeated several times throughout the Certificate of Coverage. "Plan" is defined on the first page of the Certificate to mean "the Guardian plan of group insurance purchased by your employer." Thus, the Certificate of Coverage sufficiently informed Plaintiffs that coverage would end when Guardian's WPC Policy no longer funded the Plan.
Plaintiffs argue that Guardian did not provide Plaintiffs with any document disclosing Guardian's ability to terminate the WPC Policy as opposed to the Plan. "A company may establish an employee welfare benefit plan merely by purchasing a group policy for its employees, and the plan may consist of nothing but the purchased policy document." Gable, 35 F.3d at 856. As a result, the reservation of the right to modify the Plan is equivalent to a reservation of the right to modify the WPC Policy. cf. Gable, 35 F.3d at 856 (reservation of right to modify the policy was tantamount to a reservation of rights to modify plan benefits generally, where the "master policy constituted the entirety of the company's welfare benefit plan"). That is exactly the situation here—the Plan operates entirely through the WPC Policy.
Accordingly, Defendant's motion for summary judgment dismissing Plaintiffs' SPD claim is granted.
An ERISA fiduciary must discharge its duties with "the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use." 29 U.S.C. § 1104(a) (1)(B); Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 87 (2d Cir.2001). The fiduciary should act "solely in the interest of the participants and beneficiaries," and its overarching purpose should be to "provid[e] benefits to the participants and their beneficiaries" and to "defray [] reasonable expenses of administering the plan." Beddall v. State Street Bank & Trust Co., 137 F.3d 12, 18 (1st Cir.1998) (alterations in original); see also 29 U.S.C. § 1104(a)(1).
N.Y. Ins. Law § 3221(p)(3)(A)(ii) provides that where an issuer decides to discontinue a particular type of group health insurance coverage, the issuer must offer to each policyholder "the option to purchase all . . . other hospital, surgical and medical expense coverage currently being offered by the insurer." (emphasis added). Plaintiffs argue that Guardian breached its fiduciary duty by failing to disclose the availability of, and to offer, its "R1" and "R2" form policies as options for replacement of the discontinued "R0" form coverage. Guardian argues that policies "currently being offered" do not include the "R1" and "R2" form policies because they were only available on a renewal basis to existing "R1" and "R2" policyholder groups.
Construction of the phrase "currently being offered" is an issue of first impression under New York law that affects the outcome of this case.
Section 3221(p)(3)(A)(ii), the statute at issue in this case, provides that where an issuer decides to discontinue a particular type of group health insurance coverage, the issuer must offer to each policyholder "the option to purchase all . . . other hospital, surgical and medical expense coverage currently being offered by the insurer." (emphasis added). Thus, section 3221(p)(3)(A)(ii) governs withdrawal from the New York market. Accordingly, the term "offered by the insurer" should be interpreted consistently. See Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir.2007) ("[T]he preferred meaning of a statutory provision is one that is consonant with the rest of the statute.") (quoting Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 144 (2d Cir.2002)); Schneider v. Feinberg, 345 F.3d 135, 146 (2d Cir.2003) ("The canons of statutory construction favor the consistent use of terms throughout a statute.").
DOI regulations under § 3231(a) were "designed to protect insurers writing policies from claim fluctuations and unexpected significant shifts in the number of persons insured." Colonial Life Ins. Co. of Am. v. Curiale, 205 A.D.2d 58, 617 N.Y.S.2d 377, 379 (3d Dep't 1994). Those regulations provide that "the department believes that insurers should be permitted to continue to serve certain previously issued policies without having to accept new applicants for older policies on an open enrollment basis," and "an insurer may continue to renew the policies without accepting any new applicants for such policies." 11 N.Y. Comp.Codes R. & Regs. tit. 11, § 360.4(a)(f)(1)-(2): see also Council of the City of N.Y. v. Pub. Serv. Comm'n of State of N.Y., 99 N.Y.2d 64, 74, 751 N.Y.S.2d 822, 781 N.E.2d 886 (2002) ("[T]he interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable.") (citation and internal quotation marks omitted).
DOI's interpretation of the term "offered by the insurer" is reasonable. It permits an insurer to "continue to renew
Because this Court concludes that the "R1" and "R2" policies were not "currently being offered" within the meaning of N.Y. Ins. Law § 3221(p)(3)(A)(ii), Guardian was not obliged to offer WPC its "R1" and "R2" form policies as replacement options. Accordingly, Guardian's motion for summary judgment dismissing Plaintiffs ERISA breach of fiduciary duty claim is granted.
"In any action under [ERISA], . . . the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g). "Although success on the merits is not, in theory, indispensable to an award of attorneys' fees under 29 U.S.C. § 1132(g)(1), rarely will a losing party . . . be entitled to fees." Krauss, 418 F.Supp.2d at 435 (quoting Miles v. N.Y. State Teamsters Conference Pension & Bet. Fund Employee Pension Ben. Plan, 698 F.2d 593, 602 (2d Cir.1983)) (alterations in original).
Since Plaintiffs have not prevailed on their claims and neither side has exhibited bad faith or culpability, this Court declines to award fees.
Plaintiffs also assert claims for promissory and equitable estoppel, breach of contract, and unconstitutional impairment of contract rights. Plaintiffs did not respond to Defendant's summary judgment motion seeking dismissal of these claims. Accordingly, they are deemed abandoned and Plaintiffs estoppel and contract claims are dismissed. See Babcock v. N.Y. State Office of Mental Health, No. 04 Civ. 2261(PGG), 2009 WL 1598796, at *1 n. 3 (S.D.N.Y. June 8, 2009) (citations omitted).
For the foregoing reasons, Defendant's motion for summary judgment dismissing Plaintiffs' claims in their entirety is granted. The Clerk of the Court is directed to terminate all motions pending and mark this case closed.
SO ORDERED.