Blum v. Yaretsky

LOCATION: Minnesota State Capitol Building

DOCKET NO.: 80-1952
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 457 US 991 (1982)
ARGUED: Mar 24, 1982
DECIDED: Jun 25, 1982

Judith A. Gordon - on behalf of Petitioners
John E. Kirklin - on behalf of the Respondents

Facts of the case


Media for Blum v. Yaretsky

Audio Transcription for Oral Argument - March 24, 1982 in Blum v. Yaretsky

Warren E. Burger:

We will hear arguments first in Barbara Plum, Commissioner of New York State Department of Social Services, v. Yaretsky.

Mrs. Gordon?

Judith A. Gordon:

Mr. Chief Justice, and may it please the Court.

New York's alleged involvement in medical decisions about nursing home care for Medicaid patients was found below to constitute state action in two kinds of circumstances.

A brief review of the kinds of circumstances in which state action was found to be present is necessary because that inquiry determines the additional question petitioners raise in this case; that is, the district court's jurisdiction under Article III to decide the claims that are now before you, and also, it aids the inquiry, the state action inquiry, in the event the court reaches that inquiry.

The first circumstance in which state action was found to be present occurs when a patient's outside physician, or a physician on the staff of a nursing home, decides to decrease or increase the level of the patient's care because his condition has become worse or because it has become better.

In our brief, we refer to the decision of the nursing home staff physician as a nursing home decision or transfer, and we refer to the decision of the outside physician as the decision of a private physician, albeit both of those decisions are private action within the constraints of the court of appeals' decision below.

The second circumstance in which state action was found to be present occurs when a utilization review committee or a physician member of that committee decides to increase a patient's level of care because his condition has become worse.

Parenthetically, it should be noted that utilization review is a federally-required peer review system, that a utilization review decision about a change in care for a patient who is already in a nursing home is made during a portion of that process called continued stay review, and the continued stay review is addressed to whether or not the patient needs nursing home care at all, and if he does, what kind of care he needs.

Two further points with respect to utilization review, and that is the utilization review physician's decision to change a level of care is final once made if it is not opposed by the patient's own physician, and that requirement is specific to the federal regulations which are found at 42 CFR 556.336, and 442 CFR 556.

436, and the state regulations track the federal regulations in that regard.

In addition, if the utilization review physician decides that the patient needs this upward change in level of care and his decision is opposed by the patient's private physician, if two utilization review physicians agree, then the decision of the utilization review committee becomes final, again, under the regulations that I just called to your attention.

Warren E. Burger:

How much time do these physicians spend in this process as compared with the time they spend taking care of the patients?

Judith A. Gordon:

Well, Your Honor, if you look at 42 CFR 456.330 following which describes these various utilization review procedures in quite tedious detail, I think you would have to conclude that he spends a great deal of time.

However, I can't, in fact, give you an exact estimate, but certainly we have no indication that the physicians who serve on these committees are not attending to the care of their patients, at least in this record.

Petitioners contend that the district court should never have reached the transfers that are at issue and that I just described with respect... in the circumstances I just described.

And that is because there was no plaintiff and no class representative before the district court who could have raised the issues.

Not only was there no one who had such a transfer or was threatened with such a transfer, there certainly was no one who had the reality or the prospect of the kind of distinct and palpable injury that Article III requires.

Byron R. White:

But there was a case or controversy of some kind at the time the case began?

Judith A. Gordon:

Absolutely, Your Honor.

There was a case or controversy with respect--

Byron R. White:

About some other kinds of movements.

Judith A. Gordon:


There was a case or controversy with respect to the claims of the name respondents and the named intervenors, and that case or controversy rested on their claims that you URC's had improperly transferred them to lower levels of care.

Not URC's--

Byron R. White:

And that dispute was settled?

Judith A. Gordon:

--That dispute was the initial predicate in this case, it was initially decided by a preliminary injunction back in January of 1978, it went up to the court of appeals in the first court of appeals in this case and it was ultimately resolved as you indicate on October 17, 1979 by the first partial final judgment in this case, which was entered--

Byron R. White:

In the district court?

Judith A. Gordon:

--Yes, it was resolved in the district court.

Byron R. White:

Then why didn't the case end there?