Bellin v. McDonald

24-341
Bellin v. McDonald
In the
United States Court of Appeals
For the Second Circuit
August Term, 2024
(Argued: March 19, 2025 Decided: May 21, 2026)
Docket No. 24-341
R OSALIND BELLIN,
Plaintiff-Appellant,
–v.–
J AMES V. MCD ONALD, IN HIS OFFICIAL CAPACITY AS C OMMISSIONER , NEW
YORK STATE D EPARTMENT OF HEALTH, ELDER SERVE HEALTH, INC ., D.B .A .
R IVER SPRING AT HOME ,
Defendants-Appellees.*
B e f o r e :
C ALABRESI, C ARNEY, and KAHN, Circuit Judges.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the Clerk of Court is directed to
amend the caption as reflected above. The originally named State Defendant was Howard A.
Zucker, the former Commissioner of the New York State Department of Health. James V.
McDonald is the current Commissioner.

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Plaintiff-Appellant Rosalind Bellin appeals from a judgment of the United States
District Court for the Southern District of New York (Hellerstein, J.) entered for
Defendants-Appellees James McDonald, the Commissioner of the New York State
Department of Health, and ElderServe Health, Inc., in Bellin’s challenge to the appeals
procedures afforded to those seeking 24-hour at-home, long-term care covered by New
York State’s Medicaid program.
New York covers the cost of in-home personal care services for Medicaid
recipients who need assistance with everyday activities like bathing, preparing food,
and walking. Some New Yorkers require only a few hours of assistance a day while
others need around-the-clock care. To provide assistance, the State partners with
private entities to evaluate the personal care needs of Medicaid recipients and offer
them a plan of care that matches their needs. Under the State’s rules, offerees have no
immediate right to appeal the particular level of personal care services that they are
initially offered. Instead, they must first enroll in the offered plan and then request a
change in services. If the request is denied, the enrollee may appeal.
Bellin, who sought 24-hour care, was barred by these rules from appealing the
initial offer she received of eight hours of daily care. She then brought this suit,
challenging the State’s procedures under the Fourteenth Amendment’s Due Process
Clause. At summary judgment, the District Court concluded that she had no cognizable
property interest in 24-hour long-term care services and that, without such a property
right, she was not entitled to the procedural due process protections she claimed. On de
novo review, we disagree with the District Court that Bellin lacked a protected property
interest. The laws, regulations, policies, and practices governing the determination
whether a Medicaid recipient requires 24-hour personal care services substantially
channel the assessor’s discretion, so as to generate a property interest for qualifying
recipients. That property interest, in turn, triggers procedural due process protections
for the recipients. We nonetheless conclude, however, that as a matter of constitutional
due process, New York’s appeals procedures adequately protect that property right. We
therefore affirm the District Court’s grant of summary judgment to Defendants on this
alternative ground.
A FFIRMED.
A YTAN Y. B ELLIN, Katsky Korins LLP, New York, NY (Nina
Keilin, New York, NY, on the brief), for Plaintiff-
Appellant Rosalind Bellin.

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MARK S. GRUBE , Senior Assistant Solicitor General (Barbara
D. Underwood, Solicitor General, Ester
Murdukhayeva, Deputy Solicitor General, on the brief),
for Letitia James, Attorney General of the State of New
York, for Defendant-Appellee James V. McDonald.
Sarah Michelle Gilbert, Mara R. Lieber, Crowell & Moring
LLP, New York, NY, for Defendant-Appellee ElderServe
Health, Inc.
C ARNEY, Circuit Judge:
Plaintiff-Appellant Rosalind Bellin appeals from a judgment of the United States
District Court for the Southern District of New York (Hellerstein, J.) entered for
Defendants-Appellees James McDonald, the Commissioner of the New York State
Department of Health, and ElderServe Health, Inc., d/b/a RiverSpring at Home
(RiverSpring), in Bellin’s challenge to the appeals procedures afforded to those seeking
24-hour at-home, long-term care covered by New York State’s Medicaid program.
New York covers the cost of in-home personal care services for Medicaid
recipients who need assistance with everyday activities like bathing, preparing food,
and walking. Some New Yorkers require only a few hours of assistance a day while
others need around-the-clock care. To provide assistance, the State partners with
private entities to evaluate the personal care needs of Medicaid recipients and offer
them a plan of care that matches their needs. Under the State’s rules, offerees have no
immediate right to appeal the particular level of personal care services that they are
initially offered. Instead, they must first enroll in the offered plan and then request a
change in services. If the request is denied, the enrollee may appeal.
Bellin, who sought 24-hour care, was barred by these rules from appealing the
initial offer she received of eight hours of daily care. She then brought this suit,

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challenging the State’s procedures under the Fourteenth Amendment’s Due Process
Clause. At summary judgment, the District Court concluded that she had no cognizable
property interest in 24-hour long-term care services and that, without such a property
right, she was not entitled to the procedural due process protections she claimed. On de
novo review, we disagree with the District Court that Bellin lacked a protected property
interest. The laws, regulations, policies, and practices governing the determination
whether a Medicaid recipient requires 24-hour personal care services substantially
channel the assessor’s discretion, so as to generate a property interest for qualifying
recipients. That property interest, in turn, triggers procedural due process protections
for the recipients. We nonetheless conclude, however, that as a matter of constitutional
due process, New York’s appeals procedures adequately protect that property right.
The delay introduced by the existing procedures is modest, and the State provides
expedited appeals and emergency care to individuals with acute and immediate needs,
which limit the private interests at stake. We therefore affirm the District Court’s grant
of summary judgment to Defendants on this alternative ground.1
AFFIRMED.
BACKGROUND
I. New York’s Medicaid program
A complex web of federal and state laws, regulations, and policy directives
governs the provision of long-term, at-home health care under Medicaid. We first
supply an overview of how New York’s Medicaid program delivers at-home care
services to eligible New Yorkers. To provide a framework for our later analysis of
whether qualifying Medicaid recipients in New York have a property interest in 24-
1 Bellin’s related appeal of the District Court’s order denying her motion for class certification is
dismissed as moot.

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hour at-home care, we then explain the State’s process for determining whether a
Medicaid recipient is eligible for at-home care and, if so, what level of care they require.
Finally, we canvass the State’s existing procedures for appealing plan-of-care decisions
to ground our discussion of the adequacy of those procedures.
A. Overview of covered at-home care services
The State covers the cost of at-home care for Medicaid recipients who require
assistance with the tasks of daily living. N.Y. Soc. Serv. Law § 365-a(2)(e). New York law
broadly defines covered at-home care, which it terms “personal care services,” as
“assistance with nutritional and environmental support functions and personal care
functions” that are “medically necessary for maintaining an individual’s health and
safety in his or her own home.” N.Y. Comp. Codes R. & Regs. (N.Y.C.R.R.) tit. 18,
§ 505.14(a)(1).2
Covered personal care services take a variety of forms depending on an
individual’s needs. As relevant here, New York regulations authorize the provision of
two broad categories of personal care services. First, they authorize the provision of
part-time personal care services for individuals who require help with scheduled tasks
such as meal preparation or bathing. Second, they authorize the provision of 24-hour
personal care services for individuals who require around-the-clock assistance with
scheduled tasks or with unscheduled needs like toileting. § 505.14(a)(2), (a)(4). The latter
category of care entails either a 24-hour live-in aide or multiple aides working in shifts
over a 24-hour period. Id.
New York’s Medicaid program covers the cost of delivering personal care
services, but State employees do not generally provide those services directly. Instead,
2 For legibility, we omit the reference to Title 18 of the New York Codes, Rules and Regulations
in our many later citations to Section 505.14.

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New York contracts with entities known as managed long-term care plans (MLTCPs),
which provide these services to Medicaid beneficiaries. See N.Y. Pub. Health Law
§ 4403-f(1)(a). MLTCPs, in turn, often enlist their own network of home-care providers
to fulfill their enrollees’ care needs. Thus, MLTCPs, although known as “plans,” are
private entities responsible for coordinating and delivering personal care services for
enrollees.
New York reimburses MLTCPs at a capitated rate: an MLTCP receives a fixed
monthly payment for each enrollee regardless of the level of services that a particular
enrollee receives. The State is also charged, under federal regulations, with providing
close supervision of MLTCPs. See, e.g., 42 C.F.R. §§ 438.66 (monitoring system
requirements), 438.228 (grievance and appeal process requirements).
B. Eligibility and enrollment
The process that an individual must follow to enroll in personal care services is
governed primarily by Section 505.14 of Title 18 of the N.Y.C.R.R.3 Section 505.14 is a
voluminous, detailed regulation, totaling nearly 25,000 words, and we provide only a
summary of its most salient provisions in this Section and throughout the opinion. In
short, under that regulation, the enrollment process involves two basic steps. First, the
State determines whether a Medicaid recipient is eligible for personal care services at
all. See § 505.14(b)(2)(iii)(a)–(b), (b)(4)(i). Second, if the recipient is eligible, the MLTCP
3 The version of Section 505.14 in effect during Bellin’s enrollment and subsequent appeals was
enacted in 2016, but in 2021 (after Bellin filed suit), New York adopted an amended regulation.
The 2021 regulation, which is currently in effect, governs Bellin’s allegations of ongoing
violations of federal law and her broader claims on behalf of a putative class of similarly
situated individuals. See Ex parte Young, 209 U.S. 123, 159 (1908). We therefore cite and discuss
the 2021 version of Section 505.14.

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determines the level of personal care services that is appropriate for her needs. See
§ 505.14(b)(2)(iii)(e).
1. Initial authorization of home-based personal care services
For a Medicaid recipient to be eligible to receive personal care services, that care
must be “medically necessary for maintaining [the] individual’s health and safety in his
or her own home.” § 505.14(a)(1). Beyond this primary medical necessity requirement,
beneficiaries must satisfy several other conditions. The beneficiary’s health status must
be “stable,” and she must be “capable of making choices about [her] activities of daily
living.” § 505.14(a)(3)(i)–(ii) (emphasis removed). More cost-effective alternatives to at-
home personal care services must also be insufficient to meet the beneficiary’s needs.
§ 505.14(a)(3)(iii). Finally, as of the 2021 amendment to Section 505.14, beneficiaries
must satisfy a “minimum needs requirement[]” to be eligible for personal care services:
they must generally require physical assistance with more than two daily activities.
§ 505.14(a)(3)(iv).
To determine whether these threshold eligibility requirements are met,
prospective enrollees must undergo a “comprehensive assessment” of their “medical,
social, cognitive, and environmental needs.” N.Y. Pub. Health Law § 4403-f(7)(g)(i). An
independent assessor, and not the MLTCPs themselves, conducts the comprehensive
assessment. This wide-ranging evaluation forms the basis for both the State’s
determination that a Medicaid recipient is (or is not) eligible for personal care services
generally and also for the MLTCP’s later “development and provision of an appropriate
plan of care” for beneficiaries who are determined to be eligible. Id.
The assessment has two primary components. First, a registered nurse
independently evaluates the individual’s circumstances and needs. § 505.14(b)(2)(i)(a)–
(b). To do so, nurse assessors use a tool known as the Community Health Assessment

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(CHA). The CHA is a detailed questionnaire that, among other things, is designed to
ensure the assessor reviews the individual’s health condition in a consistent fashion
with other assessors, see J. App’x 2507–24, and to score the individual’s capacity to
perform basic tasks—walking, bathing, managing medications, and so on—using a
numerical rubric, see id. at 2516–17. Based on the results of the CHA, as well as on a
review of the individual’s medical records, discussions with family members, and the
nurse’s own observations, the nurse assessor determines whether the individual will
require community-based long-term care services continuously for more than 120 days.
See N.Y. Pub. Health Law § 4403-f(7)(b)(i).
Second, a physician, physician assistant, or nurse practitioner conducts an
“[i]ndependent medical examination” of the applicant: the medical professional
examines the individual, reviews the results of the independent assessment, and writes
a “practitioner order” that summarizes the individual’s medical condition and
“indicate[s] whether the individual is self-directing and . . . medically stable.”
§ 505.14(b)(2)(ii). If the assessor concludes that the applicant requires more than 120
days of community-based long term care services and is otherwise eligible for personal
care services, the applicant is considered a “potential enrollee,” and may solicit
proposed plans of care from MLTCPs. N.Y. State Dep’t of Health, Off. of Health Ins.
Programs (DOH), MLTC Policy 14.04 (May 22, 2014), https://perma.cc/SZE3-7PA6.
2. Development of a plan of care
A potential enrollee may contact one or more MLTCPs and request that each
develop a proposed plan of care. The starting point for developing such a plan is the
CHA. As noted above, one section of the CHA is used to evaluate on a numerical scale
the individual’s capacity to perform “activities of daily living” such as getting dressed
and bathing, as well as “instrumental activities of daily living,” such as cleaning and

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preparing meals.4 DOH MLTC Policy 16.07 (Nov. 17, 2016), https://perma.cc/QHG4-
FCAK; see J. App’x at 2516–17. Based on the results of the CHA, the practitioner order,
the results of any approved task-based assessment tools, the potential enrollee’s medical
records, and other sources of information, the MLTCP prepares and proposes a plan of
care.
The more extensive the contemplated care, the more constraints on care
authorization the State imposes. For example, before an MLTCP may authorize more
than 12 hours of services per day, it must first refer the case to an “independent medical
review” panel composed of medical professionals and other clinicians. § 505.14(b)(2)(v).
Such a panel reviews the assessments and documentation of the potential enrollee and
may request additional information or conduct an additional evaluation.
§ 505.14(b)(2)(v)(a)–(e). It then prepares a nonbinding recommendation for the MLTCP
on the “reasonableness and appropriateness” of the MLTCP’s proposed plan of care.
§ 505.14(b)(2)(v)(f). The MLTCP must consider this recommendation before offering to
provide an enrollee with more than 12 hours of daily care on average.
§ 505.14(a)(5)(ii)(b). Authorization of 24-hour personal care services such as those Bellin
sought is subject to additional regulations, as described in more detail below. See
§ 505.14(a)(2), (a)(4).
4 MLTCPs are permitted, but not required, to supplement the CHA’s findings with findings
from task-based assessment tools of their choosing in developing a proposed plan of care. See
DOH MLTC Policy 16.07. These tools are designed to help an MLTCP quantify the number of
hours of care a potential enrollee will likely require, not simply assess task-level performance
like the CHA. These tools must comply with New York State Department of Health guidance,
and their use requires the Department’s formal approval. Importantly, the tools cannot set “‘one
size fits all’ limits” and must allow for “individualized assessment.” Id. The Department
explains that its policies bar MLTCPs from relying on task-based assessment tools to authorize
24-hour care because these tools are not designed to quantify “assistance that may be needed on
a more continuous or ‘as needed’ basis.” Id. For that reason, they are of limited relevance to this
appeal.

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After one or more MLTCPs have offered the prospective enrollee a plan of care,
the enrollee then selects and enrolls in one of those plans. See N.Y. Pub. Health Law
§ 4403-f(7)(b)(vi). That plan of care becomes effective, and the enrollee begins receiving
services, on the first day of the month following the date on which she enrolls or, if she
enrolls after the 20th of the month, on the first day of the second month following her
date of enrollment. See J. App’x at 45 n.1, 523–24.
C. Appeals
New York regulations afford Medicaid beneficiaries the right to appeal some
personal care services determinations, but not others. Before enrollment, if the initial
assessment results in a determination that an individual is altogether ineligible for
personal care services, she has the right to a “fair hearing”—essentially, an
administrative appeal—to contest that determination. N.Y.C.R.R. tit. 18, § 360-10.8(b)(2).
If, however, an individual is determined to be eligible for personal care services but is
not satisfied with the plan of care offered by an MLTCP, she has no right to contest that
initial offer in any respect. In other words, only the binary eligibility determination—
and not the terms of the offered plan of care itself—is at this point subject to challenge.
After enrollment, and once a beneficiary starts receiving care, her appeal options
expand. As most relevant here, she may at any time request an increase in care, and if
the request is denied, she may immediately appeal that denial. N.Y.C.R.R. tit. 18, §§ 360-
10.3(a)(1) (defining appealable actions to include “denial or limited authorization of a
requested service, including type or level of service”), 360-10.8(b)(5). The initial offer is
not a similarly appealable action under Section 360-10.3(a)(1), however, because that
offer reflects an assessment of the “appropriate services the MLTCP can offer a potential
enrollee” rather than a decision on “a particular service request”—even if the
prospective enrollee has declared that she would prefer more coverage than the MLTCP
offered. J. App’x at 47.

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Federal regulations set deadlines for the adjudication of requests for increased
care and appeals of denials of such requests. They generally require MLTCPs to provide
a decision within seven days of receiving a post-enrollment request for increased
services. 42 C.F.R. § 438.210(d)(1)(i)(A). Until 2026, that period was 14 days, and it was
this longer decision window that governed the proceedings giving rise to Bellin’s suit.
See id. § 438.210(d)(1)(i)(B). Federal regulations permit extensions of the decision
timeframe if an MLTCP submits a request to the Department of Health and “justifies . . .
a need for additional information and how the extension is in the enrollee’s interest.” Id.
§ 438.210(d)(1)(ii)(B). Further, federal regulations compress the decision timeframe if the
standard timeline “could seriously jeopardize the enrollee’s life or health or ability to
attain, maintain, or regain maximum function.” Id. § 438.210(d)(2)(i). In such emergency
cases, the MLTCP must provide a decision “as expeditiously as the enrollee’s health
condition requires and no later than 72 hours after receipt of the request for service.” Id.
Under any of these decisions timelines, the applicant may appeal any adverse
benefit determination internally to the MLTCP once the MLTCP provides a decision. Id.
§ 438.402(c)(1)(i); see also 42 U.S.C. § 1396u-2(b)(4); 42 C.F.R. § 438.402(c)(2)(ii). MLTCPs
must generally resolve these internal appeals within 30 days. 42 C.F.R. § 438.408(b)(2).
Just as with the initial decision, they may extend this timeframe by “show[ing] . . . that
there is need for additional information and how the delay is in the enrollee’s interest.”
Id. § 438.408(c)(1)(ii). In expedited appeals, MLTCPs must provide a decision within 72
hours. Id. § 438.408(b)(3).
If the enrollee’s internal appeal affirms the adverse benefit determination, she
may request an external appeal: a State-administered “fair hearing.” Id. § 438.408(f)(1);
see N.Y.C.R.R. tit. 18, §§ 358-3.1, 360-10.8(a)–(b). At the fair hearing, the parties may
present evidence, and the MLTCP must justify its adverse determination. N.Y.C.R.R.
tit. 18, § 360-10.8(e)(2)(i)(f)(6), (f)(3). An administrative law judge then prepares a report

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and recommendation for the Commissioner of the Department of Health (or a
designee), who issues a final decision confirming or reversing the MLTCP’s adverse
benefit determination based on the fair hearing record. See id. §§ 358-5.6(b)(9), 358-6.1.
This administrative decision is itself then subject to judicial review in New York state
court. See id. § 358-6.1(c); N.Y. C.P.L.R. § 7801 et seq.
If an enrollee’s appeal is successful (whether through the internal appeal process,
the fair-hearing process, or judicial review), the effective date of the higher level of
services will be made retroactive, potentially allowing for reimbursement of costs
incurred by the enrollee while an appeal was pending. But the retroactivity will extend
only to the date of the MLTCP’s initial denial of the request—not to the date of the
request itself or to the date of enrollment with the MLTCP. See J. App’x at 1533–36. As a
result, an enrollee cannot recover costs she incurred during the period that her request
for increased services was being adjudicated by the MLTCP. And while an enrollee
challenging a reduction to her personal care services (or her disenrollment) may be able
to continue receiving her existing level of services while the fair hearing process is
underway, federal and state regulations appear to offer no analogous mechanism by
which an enrollee seeking an increase in care may receive that higher level of care while
her appeal is pending. See N.Y.C.R.R. tit. 18, § 360-10.8(g); see also 42 C.F.R. § 438.420;
N.Y. Soc. Serv. Law § 365-a(8).
II. Factual background
The following factual statements are drawn from the parties’ submissions
pursuant to Rule 56.1 of the Local Rules for the Southern District of New York. Except
as otherwise noted, the facts are not in dispute.
Rosalind Bellin, a Medicaid recipient currently in her late 80s who resides in the
Bronx, suffers from several serious illnesses that limit her ability to care for herself

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independently. In April 2019, Bellin applied to enroll in a personal care services plan
with three MLTCPs, including RiverSpring. In May, RiverSpring conducted an
assessment of Bellin and determined that she required eight hours of personal care
services, seven days a week. Neither of the other two MLTCPs offered Bellin more than
eight hours of daily care.
Through her attorney and her daughter, Bellin notified RiverSpring that eight
hours of daily care would be insufficient and that she required additional care. She
nonetheless elected to enroll, on May 15, 2019, in RiverSpring’s proposed plan, which
would become effective (i.e., her at-home care would begin) on June 1. On May 22,
Bellin, through her attorney, sought to internally appeal RiverSpring’s eight-hour
determination. RiverSpring informed her, however, that she had no right to appeal
before the June 1 effective date. So, on June 3, two days after her enrollment became
effective, Bellin again appealed the eight-hour determination to RiverSpring. On June 4,
RiverSpring advised her that its initial enrollment offer was not appealable. It further
advised her, though, that it would treat her appeal as a request for an increase in care.
Accordingly, RiverSpring conducted another assessment of Bellin on June 15.
\That evaluation led to essentially the same conclusion as the first: the assessor
concluded that Bellin’s condition had not changed and estimated that she required 8.7
hours of at-home care daily, seven days a week. Days later, Bellin’s daughter reported
to RiverSpring that Bellin’s condition had deteriorated further and that she required
additional personal care services. Thus, on July 10, RiverSpring conducted a third
assessment of Bellin. That assessment concluded that Bellin’s condition had in fact
deteriorated and that she now required 24-hour care. Based on that assessment,
RiverSpring authorized an increase to 24-hour personal care services, effective July 13.
Bellin has been receiving 24-hour care since that authorization—though the parties
dispute whether her increased level of care began on July 13 or July 15.

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On July 5, while RiverSpring was determining whether an increase in care level
was warranted, Bellin sought a fair hearing from the State to challenge RiverSpring’s
failure to process her May appeal of the initial eight-hour determination. In a September
2019 decision, the State initially reversed RiverSpring’s determination and authorized
24-hour care for Bellin retroactive to June 1. But after the Department of Health moved
for reconsideration, the State amended its decision in March 2020, and pared back
Bellin’s victory on procedural grounds. In the amended decision, the Commissioner’s
designee agreed with RiverSpring that its initial offer (of eight hours of daily care) was
not appealable. The designee also found, however, that Bellin’s June 3 post-enrollment
request for 24-hour care was “supported by credible medical evidence” and that federal
regulations had required RiverSpring to issue a decision on that request within 14 days.
J. App’x at 125; see 42 C.F.R. § 438.210(d)(1). Based on those conclusions, the
Commissioner’s designee awarded Bellin 24-hour personal care services retroactive to
June 18, 2019 (four weeks earlier than the July 13 date authorized by RiverSpring).5
Thus, the State’s procedures resulted in two gaps for Bellin: a gap in State-
authorized care and a gap in financial reimbursement. First, in part because she could
not appeal her plan of care until after that plan had gone into effect on June 1, she did
not actually begin to receive 24-hour care through RiverSpring, she contends, until
July 15—a period without receiving State-authorized, 24-hour care that was prolonged
by her inability to lodge an earlier appeal. Second, because the State made her 24-hour
care authorization retroactive to June 18 and not to June 1, Bellin has not been able to
seek reimbursement for any costs that she incurred between June 1 and June 17 to
5 The State’s amended fair hearing decision treated RiverSpring’s June 4 notice letter, which
stated that RiverSpring would treat Bellin’s June 3 appeal of RiverSpring’s initial offer as a
request for an increase in care, as the start of the 14-day clock, therefore producing a June 18
effective date. See J. App’x at 125.

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secure the additional 16 hours of daily personal care services that brought her care to
the around-the-clock level. These gaps in 24-hour care authorization—and the
procedures that produce them—are the focus of this litigation.
III. Procedural history
On June 18, 2019, while Bellin pursued the administrative appeals procedures
available to her, she filed suit in the Southern District of New York to challenge the
adequacy of those procedures. Her complaint alleged that the Medicaid Act and its
implementing regulations, as well as the Due Process Clause of the Fourteenth
Amendment, require New York to provide Medicaid recipients with an opportunity to
bring an immediate appeal of an MLTCP’s initial offer of personal care services. She
also sought to assert those claims on behalf of a class of similarly situated individuals.
She requested class-wide injunctive and declaratory relief.6
In April 2020, the District Court (Hellerstein, J.) dismissed Bellin’s complaint for
failure to state a claim for relief. Bellin v. Zucker, 457 F. Supp. 3d 414, 424 (S.D.N.Y. 2020).
As to Bellin’s Medicaid Act claims, the court found that “nothing in these statutes or
regulations requires Defendants to provide potential enrollees with the opportunity to
appeal initial determinations regarding their level of in-home personal care services.”
Id. at 420. As to her constitutional claim, the court held that the protections of the Due
6 Bellin does not seek a retroactive award of payment for any costs she incurred in securing
additional personal care hours between June 1 and June 17. Nor could she do so under the
constraints of the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 677 (1974). Any
compensation she may receive, were she to prevail on her due process claim and avail herself of
the appeals procedures she seeks, would be pursuant to other “administrative procedures [that]
may already be available under state law,” not pursuant to a federal court order. Quern v.
Jordan, 440 U.S. 332, 347–48 (1979); see id. at 348 (finding no Eleventh Amendment barrier to
relief where decision to authorize “retroactive benefits rests entirely with the State, its agencies,
courts, and legislature, not with the federal court”); see also Morenz v. Wilson-Coker, 415 F.3d 230,
237 (2d Cir. 2005).

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Process Clause did not apply because, it concluded, Bellin “did not have a property
interest in a particular level of care.” Id. at 422. In the court’s view, Bellin had not
sufficiently alleged that New York’s personal care services eligibility regulations “cabin
[the State’s] discretion in a way that mandates a particular outcome” and thereby give
rise to a property interest. Id. at 423.
Bellin appealed that decision to this Court. We affirmed the dismissal of her
statutory and regulatory claims, finding that the Medicaid Act and its implementing
regulations require a right to appeal only an “‘adverse benefit determination’” and that
“MLTC[P]s’ initial personal care hours determinations cannot constitute adverse benefit
determinations.” Bellin v. Zucker (Bellin I), 6 F.4th 463, 483–84 (2d Cir. 2021) (first excerpt
quoting 42 C.F.R. § 438.404(b)). But we vacated the dismissal of Bellin’s due process
claim and remanded for further proceedings, concluding that Bellin had carried her
burden at the pleading stage of “plausibl[y] alleg[ing] that MLTC[P]s’ discretion is
channeled so as to create a property interest in initial hours determinations.” Id. at 481.
With her due process claim revived, Bellin then moved the District Court to
certify a Rule 23(b)(2) class of “[a]ll past, present and future New York State Medicaid
recipients who . . . have applied or will apply for Medicaid-funded personal care
services from MTLC[P]s,” as well as three related subclasses. J. App’x at 49; see Fed. R.
Civ. P. 23(b)(2). The District Court denied the motion. Bellin v. Zucker, No. 19-CV-5694,
2022 WL 4592581, at *6 (S.D.N.Y. Sept. 30, 2022). It found Bellin’s proposed class
definition “overbroad,” and, even though the court then supplied and considered its
own “narrow[er]” class definition, it still found that “a class cannot be defined to satisfy
the implied requirement of ascertainability.” Id. at *2. It reasoned that the class
definition is “based on subjective criteria” and that “identifying class members would
require a mini-hearing on the merits of [each] potential class member’s claim.” Id. at *6.

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After the close of discovery, the parties cross-moved for summary judgment. In
February 2024, the District Court granted summary judgment to Defendants. Bellin v.
Zucker (Bellin II), No. 19-CV-5694, 2024 WL 381022, at *4 (S.D.N.Y. Feb. 1, 2024). As it
had during the motion to dismiss proceedings, the court concluded that the State’s
standards for determining the appropriate level of personal care services “do[] not
meaningfully channel the discretion” of assessors. Id. As a result, the court held, Bellin
had no property right in a particular level of care and could not claim any related due
process protections. Id.
Bellin timely appealed. She challenges the grant of Defendants’ summary
judgment motion, the denial of her own, and the earlier denial of her motion for class
certification.
DISCUSSION
We review de novo a district court’s grant of summary judgment, construing “the
evidence in the light most favorable to the nonmoving party and draw[ing] all
reasonable inferences in that party’s favor.” Ketcham v. City of Mount Vernon, 992 F.3d
144, 148 (2d Cir. 2021). A court may grant summary judgment only when there is “no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
To determine whether a state’s procedures violate the Due Process Clause of the
Fourteenth Amendment, we must assess, first, whether the state has deprived the
plaintiff of a liberty or property interest, and if so, second, whether the state’s existing
procedures are “constitutionally adequate” for protecting that interest. Kapps v. Wing,
404 F.3d 105, 112 (2d Cir. 2005); see Barrows v. Burwell, 777 F.3d 106, 113 (2d Cir. 2015).
For the reasons discussed below, we decide in Bellin’s favor on the first question and in
Defendants’ favor on the second.

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I. Qualifying Medicaid recipients have a property interest in receiving 24-hour
personal care services under New York law
As the Supreme Court established in Goldberg v. Kelly, public assistance benefits
may qualify for constitutional due process protections as a type of property. 397 U.S.
254, 262 & n.8 (1970). For a benefits program to generate a constitutionally protected
property right rather than merely a privilege, the prospective recipient must
demonstrate a “legitimate claim of entitlement” to benefits—not just an “abstract need”
for them or a “unilateral expectation” of receiving them. Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972). In differentiating between the two, we ask “whether the
state statute or regulation at issue meaningfully channels official discretion by
mandating a defined administrative outcome.” Sealed v. Sealed, 332 F.3d 51, 56 (2d Cir.
2003); see Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (considering whether the state has
“plac[ed] substantive limitations on official discretion.”).
A regulatory scheme can structure a state decisionmaker’s benefits determination
in two basic ways. First, it might afford a decisionmaker unguided discretion—that is, it
might give the decisionmaker “the power to grant or deny a benefit regardless of
whether particular criteria are met.” Bellin I, 6 F.4th at 476. For example, a scheme might
“merely authorize[] particular actions and remedies” rather than “require a certain
outcome.” Sealed, 332 F.3d at 56. Where an official is authorized to take an action but “is
simply not bound by standards” in arriving at a decision, it cannot be said, for due
process purposes, that a beneficiary has an entitlement to benefits and an attendant
property interest in them. Bd. of Pardons v. Allen, 482 U.S. 369, 375 (1987) (internal
quotation marks omitted).
Second, a regulatory scheme might afford a decisionmaker a narrower form of
discretion in awarding benefits: if a scheme imposes standards that constrain decision-
making, but the official “must use judgment in applying the standards,” a property

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interest in the benefits may be cognizable. Id. (internal quotation marks omitted). This
narrower range of discretion “is not incompatible with the existence of a [protected]
interest” so long as a particular outcome is “required” after the decision-making
authority “determines (in its broad discretion) that the necessary prerequisites exist.” Id.
at 376 (emphasis removed); see also Barrows v. Becerra, 24 F.4th 116, 139 (2d Cir. 2022)
(“[E]ven though an official may have to ‘use judgment in applying’ a standard, that
does not preclude the existence of a protected interest.” (quoting Allen, 482 U.S. at 375)).
In such cases, the critical inquiry is “whether the prescribed criteria are open-ended and
subjective, or determinate and well-defined.” Bellin I, 6 F.4th at 476. The latter
“meaningfully channel[] official discretion,” thereby generating a property interest.
Sealed, 332 F.3d at 56.
We first consider whether the regulatory scheme that governs Bellin’s asserted
property interest affords the State unguided discretion to determine whether 24-hour
personal care services are appropriate and conclude it does not. We then consider
whether the narrower guided discretion that the scheme affords the State in making this
determination is meaningfully channeled, and conclude that it is.
A. The State does not have unguided discretion in authorizing 24-hour
personal care services
The regulatory scheme governing Medicaid-funded, at-home personal care
services is designed (1) to assess a beneficiary’s needs and (2), if she requires personal
care services, to provide her with a plan of care that meets those needs. For that reason,
Section 505.14 first requires a comprehensive, independent assessment of the assistance
an individual requires. See § 505.14(b)(2)(i)(a)–(b). It then ties the MLTCP’s
“authorization . . . of personal care services, including the level, amount, frequency and
duration of services,” directly to the results of that assessment: the authorization “must
be based on and reflect the outcome of [the independent assessment].” § 505.14(b)(4)(iii)

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(emphasis added); see also N.Y. Pub. Health Law § 4403-f(7)(g)(i) (requiring that “[t]his
assessment shall also serve as the basis for the development and provision of an
appropriate plan of care for the enrollee”). To implement that linkage requirement,
other provisions of Section 505.14 direct that the plan of care “must identify” both the
“personal care service functions or tasks with which the individual needs assistance,” as
well as the “amount, frequency and duration of services” that are necessary “to meet
these needs.” § 505.14(b)(2)(iii)(e)(1)–(2). Section 505.14 thus entitles eligible
beneficiaries to a plan of care that meets their identified needs.
The State’s published policy guidance reflects the mandatory nature of personal
care services authorizations for Medicaid recipients once the prerequisites for those
services have been met—including, and especially, for 24-hour care. For example, one
Department of Health policy provides, “[a]ll [MLTCPs] must assure that the plan of
care that is developed can meet any unscheduled or recurring daytime or nighttime
needs that the enrollee may have for assistance.” DOH MLTC Policy 16.07. Another
similarly mandates that the plan of care the MLTCP develops “must . . . meet[] the
patient’s scheduled and unscheduled day and nighttime personal care needs.” DOH
Policy Directive GIS 03 MA/003 (Jan. 24, 2003), https://perma.cc/7VPA-69NM. Indeed,
the State agreed in the district court proceedings that “a plan of care must be able to
meet any unscheduled or recurring daytime or nighttime needs that the enrollee may
have for assistance.” J. App’x at 2155 (State Defendant’s response to Bellin’s Rule 56.1
statement).
The mandatory nature of personal care services authorizations is also reflected in
the State’s own contracts with MLTCPs. For example, the State’s model contract directs
that MLTCPs “will use the assessment instrument specified by the Department . . . to
assess each Applicant for MLTC[P] enrollment” and directs that a plan of care “must be
developed based on the findings of this assessment.” J. App’x at 1139; see also id. at 1296

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(model contract stating that enrollees have “the Right to receive medically necessary
care”). Both the Department of Health and RiverSpring confirmed that understanding.
J. App’x at 2040 (Department of Health declarant stating that, pursuant to the model
contract, the “proposed plan must address, among other things, the enrollee’s assessed
needs”); id. at 3138 (senior RiverSpring executive agreeing that if an individual requires
“a particular number of hours” of care, “that [level of] service . . . must be given”).
The mandatory linkage between assessed needs and services offered is also
required by federal regulations, which provide that the State’s contract with MLTCPs
“[m]ust ensure that the [MLTCP’s] services are sufficient in amount, duration, or scope
to reasonably achieve the purpose for which the services are furnished.” 42 C.F.R.
§ 438.210(a)(3)(i). As a result, an MLTCP’s failure to provide medically necessary
services may result in the State’s denying it reimbursement or imposing sanctions. See,
e.g., J. App’x at 1179 (model contract providing that capitation payments may be denied
if an MLTCP has “failed substantially to provide medically necessary . . . services”); id.
at 1223 (model contract listing “[f]ailing substantially to provide medically necessary
services that the Contractor is required to provide” as an “[u]nacceptable practice[]”
that is subject to sanctions).
The State argues that the relevant laws and regulations “‘merely authorize[]’” the
provision of personal care services and leave the fundamental decision whether to
provide authorized services to the State’s discretion. Appellee’s Br. at 36 (quoting Sealed,
332 F.3d at 56). In support of that view, the State notes that state law provides that an
MLTCP “may enroll eligible persons . . . upon the completion of a comprehensive
assessment.” N.Y. Pub. Health Law § 4403-f(7)(g)(i) (emphasis added). It observes
further that Section 505.14 provides only that “[b]efore more than 12 hours of personal
care services per day . . . may be authorized, additional requirements . . . must be
satisfied.” § 505.14(a)(5)(ii)(b) (emphasis added); see also § 505.14(b)(4)(iv) (providing

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that an MLTCP “may authorize only the hours or frequency of services actually required
by the individual” (emphasis added)).
We draw a different conclusion from these provisions. The relevant statutory and
regulatory provisions set out a clear, two-step process: first, determining an individual’s
needs and, second, developing a plan of care that meets those needs. The State’s
proposed reading would untether the careful assessment of an individual’s needs from
the care an MLTCP is required to authorize, and in so doing make the regulatory
scheme self-defeating. In context, the “may” language in the provisions the State cites is
more persuasively read as establishing a necessary prerequisite—e.g., “may enroll
eligible persons . . . [only] upon the completion of a comprehensive assessment,” N.Y.
Pub. Health Law § 4403-f(7)(g)(i)—rather than as conferring unguided discretion at the
enrollment phase. So understood, these provisions sensibly reinforce, rather than
undermine, the critical linkage between the level of assistance required and the level of
assistance authorized that undergirds the structure of the regulatory scheme.
Thus, we have no difficulty in concluding that New York has not committed to
the unguided discretion of the State (and the MLTCPs, which act on the State’s behalf)
the determination of what particular level of personal care services an enrollee requires.
B. Statutes, regulations, policies, and practices meaningfully channel
discretion in authorizing 24-hour personal care services
We next consider whether the relevant regulatory criteria “meaningfully
channel[] official discretion” as to whether or not to authorize 24-hour services. Sealed,
332 F.3d at 56. In answering that question, “we must consider the regulatory scheme as
a whole,” including the “relevant statutes and regulations,” as well as “informal rules
or institutional practices.” Bellin I, 6 F.4th at 475. We conclude that the relevant
regulatory criteria adequately cabin discretion in both theory and practice, supporting
Bellin’s property interest in 24-hour care.

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We emphasize, though, that this case does not present, and Bellin does not pose,
the question whether a qualifying Medicaid recipient has a property interest in
receiving any particular number of daily personal care hours—for example, in 14 hours
of daily care rather than eight. Bellin asks us only to recognize her property interest in
receiving 24-hour personal care services as opposed to some level of part-time personal
care services: a binary determination. See Appellant’s Br. at 3. To be sure, New York’s
Medicaid regulations define two subtypes of 24-hour personal care services, “[l]ive-in
24-hour personal care services” and “[c]ontinuous personal care services.”7
§ 505.14(a)(2), (a)(4) (emphases removed). But we also need not decide whether
qualifying Medicaid recipients have a property interest in receiving one form of 24-hour
care or the other. Our analysis is limited to determining whether, in light of applicable
state and federal law, qualifying beneficiaries have a constitutional property interest in
receiving 24-hour care (of some kind) rather than part-time care (of some kind)—not
whether that entitlement also reaches particular levels of part-time care or a particular
type of 24-hour care.
To answer that question, we first consider the regulatory criteria governing 24-
hour-care authorization decisions. We then examine how those criteria are applied by
7 The former type entails a “live-in 24-hour personal care aide” and is appropriate when the
individual’s needs for assistance are “sufficiently infrequent” that the aide “would be likely to
obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour
period of sleep.” § 505.14(a)(4). If an individual’s needs are so frequent that even a live-in aide
cannot meet them without unduly sacrificing sleep, she may be eligible for “[c]ontinuous
personal care services,” a level of care that entails multiple aides working in shifts. § 505.14(a)(2)
(emphasis removed); see also § 505.14(b)(2)(iii)(c). Both “[l]ive-in 24-hour personal care services”
and “[c]ontinuous personal care services” require that the recipient need assistance “with
toileting, walking, transferring, turning and positioning, or feeding” throughout the day.
§ 505.14(a)(2), (a)(4) (emphasis removed). Because the distinction between these two forms of
24-hour care is not directly relevant to this appeal, we use “24-hour personal care services” to
encompass both types.

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the State in its fair hearing decisions. We conclude that the criteria themselves and the
State’s historical application of them establish the existence of a property interest in 24-
hour care for qualifying Medicaid recipients in New York State.
1. The State’s personal care services criteria meaningfully channel discretion
As previewed, we conclude that the personal care services criteria set forth in the
State’s regulations and policies meaningfully channel official discretion as to whether
the MLTCP must authorize 24-hour personal care services. Recall that, to qualify for any
level of personal care services (whether part-time care or 24-hour care), potential
enrollees must satisfy five baseline requirements: medical necessity, stability, self-
direction, cost-effectiveness, and minimum needs. To receive 24-hour care, they must
also require assistance with “toileting, walking, transferring, turning and positioning, or
feeding” throughout a “calendar day.” § 505.14(a)(2), (a)(4). If an individual satisfies
both sets of criteria—the baseline requirements and the 24-hour-care-specific
requirements—they are entitled to 24-hour personal care services. Together, these
criteria meaningfully channel MLTCPs’ discretion in authorizing 24-hour care.
a. Criteria for authorizing personal care services of any kind
Consider first the five primary prerequisites to eligibility for any level of
personal care services.
(i) Medical necessity. Personal care services must be “medically necessary for
maintaining an individual’s health and safety in his or her own home.” § 505.14(a)(1).
Consideration of the medical necessity requirement is guided by the CHA and the
initial assessment process. As the State’s own evidence demonstrates, that process is
“designed for reliability and uniformity across potential enrollees.” J. App’x at 47
(declaration of Department of Health official). In the proceedings here, a Department of
Health official testified on behalf of the State that the nurses who conduct the

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assessment “are trained to be objective in collecting facts and doing evaluations and
assessments.” J. App’x at 2634. The starting point for the assessment is the CHA, which
requires a detailed evaluation of an individual’s condition and needs. See J. App’x at
971, 1730, 2001–02, 2099, 2147, 2516–17. The “purpose of the CHA,” as the Department
of Health official testified, is to have a “standardized tool and to be as objective as
possible.” J. App’x at 2634. The CHA enables objective assessment in part by orienting
the assessor’s analysis around an individual’s performance in conducting a specified list
of “activities of daily living,” like dressing and bathing, and “instrumental activities of
daily living,” like preparing meals and cleaning, all according to a defined numerical
rubric. DOH MLTC Policy 16.07; see J. App’x at 2516–17. Proper application of the CHA
is further restricted by the CHA reference manual, which provides detailed guidance on
how nurse assessors must code CHA assessment items.
(ii) Stability and (iii) self-direction. Each of the next two prerequisites—that the
individual be “stable” and “self-directing”—is clearly defined by regulation. An
individual is considered “stable” if a “sudden deterioration or improvement” of her
condition is unlikely and her plan of care will not require frequent adjustment.
§ 505.14(a)(3)(i) (emphasis removed). An individual is “self-directing” if she is “capable
of making choices about [her] activities of daily living” or if another individual or
agency is able to play that decision-making role on her behalf. § 505.14(a)(3)(ii). These
requirements constrain MLTCPs’ discretion by calling for specific, narrow medical
judgments assessing defined characteristics of the applicant.
(iv) Cost-effectiveness. The individual must have no cost-effective alternatives to
in-home personal care services available to meet her needs—for example, receiving
voluntary assistance from family members or obtaining services through other medical
assistance programs. § 505.14(a)(3)(iii), (b)(2)(iii)(a)(12)–(13). This requirement is
undergirded by an enumerated list of objective considerations. See, e.g.,

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§ 505.14(b)(2)(iii)(a)(8) (whether the individual’s needs can be met “more cost-effectively
by other long-term care services,” such as “the assisted living program or the enriched
housing program”), (b)(2)(iii)(a)(9) (whether the individual’s needs can be met “more
cost-effectively . . . in cooperation with an adult day health or social adult day care
program”), (b)(2)(iii)(a)(10) (whether the individual’s needs can be met “through the use
of telehealth services”). As we observed in Bellin I, the regulation “does not just leave
the assessment of cost-effectiveness to the MLTC[P]s without providing any substantive
guidance”; rather, it “delineates the considerations and alternatives that should be
taken into consideration.” 6 F.4th at 478. These objective considerations are hallmarks of
channeled discretion.
(v) Minimum needs. Finally, the minimum-needs criterion simply requires
ascertaining whether the individual has been diagnosed with dementia or Alzheimer’s
disease, tallying up the raw number of activities of daily living with which an
individual needs assistance, and assessing whether the assistance required is merely
supervision or something more. See § 505.14(a)(3)(iv). An assessor’s task is then merely
to determine whether the individual meets the minimum-needs threshold: for
individuals with dementia or Alzheimer’s disease, whether they require “at least
supervision with more than one activity of daily living,” and for all others, whether
they require “at least limited assistance with physical maneuvering with more than two
activities of daily living.” Id. Thus, this requirement, too, rests on objective criteria and
specific, narrow medical judgments.
b. Criteria for authorizing 24-hour personal care services
Once the five threshold criteria for receiving any level of personal care services
are satisfied, the determination whether to authorize 24-hour personal care services is
even more constrained. New York regulations expressly define the needs that trigger an
entitlement to 24-hour personal care services: to be eligible for 24-hour care, a

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qualifying Medicaid recipient must have frequent needs for “assistance during a
calendar day with toileting, walking, transferring, turning and positioning, or feeding.”
§ 505.14(a)(2), (a)(4). In other words, assessors must evaluate whether an individual
requires assistance with a specified list of activities—“toileting, walking, transferring,
turning and positioning, or feeding”—and then estimate the likely frequency of those
needs during the day and night. § 505.14(a)(2), (a)(4).
Those evaluations are further constrained by additional State guidance. To guide
assessors’ evaluation of whether an individual has the specified needs for assistance, the
regulations require them to determine “whether the practitioner order indicated a
medical condition that causes” those specified needs. § 505.14(b)(2)(iii)(d)(1). To guide
assessors’ evaluation of the timing of those needs, the regulations require them to
determine the “frequency at which the individual needs” such assistance,
§ 505.14(b)(2)(iii)(d)(3), whether the required assistance is needed “during the
individual’s waking and sleeping hours and, if not, why not,” § 505.14(b)(2)(iii)(d)(4),
and whether the required assistance “can be scheduled or may occur at unpredictable
times,” DOH MLTC Policy 16.07; see also J. App’x at 2155. The CHA is used to inform
these judgments. See J. App’x at 2689–90 (Department of Health official testifying that
the CHA is used to document the frequency of needs for assistance). Other Department
of Health policy directives provide additional guidance on the “definitions and
eligibility requirements” pertaining to the two types of 24-hour personal care services.
DOH MLTC Policy 15.09 (Dec. 30, 2015), https://perma.cc/TKS7-RH65.
Thus, the State’s regulations expressly describe a threshold between part-time
and 24-hour care and disaggregate the 24-hour-care authorization decision into specific
assessments of the frequency, timing, and predictability of an individual’s specified
needs for assistance. Each of these determinations is, in turn, reviewed by an
“independent medical review” panel, as is the proposed plan of care. § 505.14(b)(2)(v).

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These aspects of the regulatory program meaningfully channel MLTCPs’ discretion in
determining whether to authorize 24-hour care.
2. The State’s fair hearing decisions further demonstrate meaningful channeling
In addition to statutes, regulations, and policies, a “constant, consistent pattern
of [administrative] decisions” can also be “sufficient to create a property interest.”
Furlong v. Shalala, 156 F.3d 384, 395 (2d Cir. 1998). In pressing the additional argument
that the State’s treatment of 24-hour-care appeals presents such a pattern here, Bellin
has produced a compilation of 108 fair hearing decisions issued in personal care
services appeals from January 2016 through March 2022. See J. App’x at 3938–4029. We
may also take judicial notice of State fair hearing decisions that are not in the record.8
See Off. of Temp. & Disability Assistance, Fair Hearing Decision Archive,
https://otda.ny.gov/hearings/search. The State, for its part, has not called any additional
fair hearing decisions to our attention. It is our assessment that the fair hearing
decisions readily reinforce our conclusion that qualifying Medicaid recipients in New
York have a property interest in receiving 24-hour personal care services: they
demonstrate that the State itself, through its adjudication of personal care services
appeals, has long recognized the closely circumscribed nature of the discretion MLTCPs
are afforded in determining whether to authorize 24-hour care.
To start, the fair hearing decisions in the record—reviewing MLTCPs’ denials of
requests for an increase to 24-hour care—consistently frame the issue, analysis, and
conclusion in objective terms: whether the MLTCP’s determination that an increase to
8 We do so only to establish the fact of the decisions and their stated reasoning—not for the
truth of the matters asserted within those decisions. Bellin I, 6 F.4th at 471 n.10 (finding that fair
hearing decisions are “are public records properly subject to judicial notice under Federal Rule
of Evidence 201(b),” though not “for the ‘truth of the matters asserted’” (quoting Staehr v.
Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008))).

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24-hour care is not medically necessary is “correct” or “not correct.”9 Additional
reported fair hearing decisions refer to the requirements of Section 505.14 and related
policies as eligibility “criteria” that the MLTCP must correctly determine and that the
appellant must prove.10 These decisions do not frame the inquiry as a review of an
MLTCP’s exercise of open-ended discretion.
These decisions’ focus on objective review in framing their analyses carries
through to the analyses themselves. The decisions in the record nearly always turn on
whether a party has established the objective criteria that govern eligibility for 24-hour
care, and the decisions consistently treat those criteria as susceptible to evidence-based
review. For example, in one fair hearing, an applicant challenged the MLTCP’s
determination that he was entitled to only 12 hours of daily care, when he claimed to
qualify for 24-hour care. See Fair Hearing No. 7509330L (Apr. 5, 2017), at 12–13. After
considering several CHAs, the testimony of the applicant’s friends and family members,
9 See, e.g., Fair Hearing No. 7292450H (Apr. 29, 2016), at 18 (denial of request to increase from 12
hours of daily care to 24-hour personal care was “not correct”); Fair Hearing No. 7603418Q
(Sept. 6, 2017), at 11 (denial of request to increase from six hours of daily care to 24-hour
personal care was “not correct”); Fair Hearing No. 7965956Q (May 22, 2019), at 13 (denial of
request to increase from eight hours of daily care to 24-hour personal care was “not correct”);
Fair Hearing No. 8276185M (Mar. 12, 2021), at 16 (denial of request to increase from 12 hours of
daily care to 24-hour personal care was “not correct”); Fair Hearing No. 8316051Y (July 1, 2021),
at 17 (denial of request to increase from seven hours of daily care to 24-hour personal care was
“not correct”).
10 See, e.g., Fair Hearing No. 8495091H (Aug. 29, 2022), at 13 (finding that the appellant’s
evidence was “not sufficient to justify or meet the criteria for an increase in Personal care
assistance services hours”); Fair Hearing No. 8562620H (Feb. 3, 2023), at 21 (finding that the
appellant “has met the criteria for [one type of 24-hour personal care]”); Fair Hearing No.
8633543N (July 20, 2023), at 21 (finding that the appellant “has met the criteria for the provision
of 24 hours, 7 days weekly continuous care”); Fair Hearing No. 8815271K (July 9, 2024), at 25
(finding that the appellant “failed to establish that they met the eligibility criteria for 24-hour
split-shift care.”); Fair Hearing No. 9035045P (Aug. 27, 2025), at 20 (discussing the “specific and
strict criteria for 24/7 [personal care services] authorization” under Section 505.14).

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and other agency documents, the Commissioner’s designee concluded that (1) the
appellant needed unscheduled “assistance with toileting, walking, transferring, turning,
and positioning, during the day, as well as at night,” and (2) her overnight needs could
not be met by friends and family members or with adaptive equipment. Id. at 15. It
accordingly directed the MLTCP to authorize 24-hour care. Id. Other reported fair
hearing decisions reversing an MLTCP’s denial of a 24-hour care request turn on
similarly objective considerations.11
The State protests that the fair hearing decisions Bellin presents simply
demonstrate that “the State takes seriously its obligation . . . to ensure that [MLTCPs’]
determinations are supported by evidence and do not violate rules governing their
exercise of discretion.” Appellee’s Br. at 44. But that is exactly the point. MLTCPs’
determinations whether to provide 24-hour care are rooted in predicate factual findings
that are subject to evidentiary review and in exercises of limited discretion that the State
reviews to ensure conformity with the rules channeling this discretion. That MLTCPs’
decisions are susceptible to such administrative review by the State—whose rulings are,
in turn, subject to judicial review by state courts, see N.Y.C.R.R. tit. 18, § 358-6.1(c)—
provides a fair corroboration that the State has meaningfully channeled MLTCPs’
11 See, e.g., Fair Hearing No. 7517997K (Apr. 20, 2017), at 17 (finding that the appellant is
“extremely weak,” “cannot ambulate without a great deal of assistance,” and “is in danger of
falling at night when she attempts to use the commode”); Fair Hearing No. 7603418Q (Sept. 6,
2017), at 11 (finding that “[t]he record establishes that the Appellant requires assistance at all
hours of the day and a few times during the over-night hours”); Fair Hearing No. 7609514H
(Sept. 15, 2017), at 6 (finding that the “evidence establishes the Appellant’s total incontinence
and greater than assistance-level need . . . with at least ambulation and incontinent care”); Fair
Hearing No. 7641666R (Nov. 3, 2017), at 20 (finding that the appellant “has unscheduled
toileting and incontinence needs and requires related human assistance”); Fair Hearing No.
7758346J (May 16, 2018), at 10 (finding that the appellant “requires extensive scheduled and
unscheduled assistance during a calendar day, with tasks such as toileting, walking and
transferring”).

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discretion with respect to 24-hour-care authorization, as we have explained. See Bellin I,
6 F.4th at 480 (finding that “[t]he fact that administrative review is possible for such
similar claims supports Bellin’s claim [to a property interest]”); see also Allen, 482 U.S. at
381 (finding that the availability of “judicial review” is an “indication of a legislative
intent to cabin . . . discretion”). For the same reason, the district court’s observations
that fair hearing decisions are “fact-intensive” and that the State often affirms the
MLTCP’s decision support, not undermine, identifying the proposed property interest.
Bellin II, 2024 WL 381022, at *4.
In attempting to minimize the significance of the 108 fair hearing decisions Bellin
has compiled, the State correctly points out that these decisions represent only a small
fraction of the universe of potentially relevant fair hearing decisions, which number in
the thousands. But the State does not point to any fair hearing decisions that treat
MLTCPs’ discretion in authorizing 24-hour care as the kind of open-ended discretion
that the State urges us to find here. Thus, the record evidence, as well as this Court’s
review of an additional sampling of fair hearing decisions, tends to confirm the
ultimately objective nature of 24-hour care authorization decisions.
3. The State’s arguments to the contrary fail to persuade
The State argues that, because the assessors charged with making care-
authorization decisions are afforded a degree of discretion in applying and weighing
the criteria outlined above, the regulatory scheme cannot generate a property
entitlement. To be sure, and as Bellin concedes, the assessment process requires
clinicians to exercise their own professional judgment in determining exactly which
services are medically necessary. See J. App’x at 465, 2171. As with any complex medical
judgment, the determination whether 24-hour care is medically necessary for an
individual requires a degree of assessor discretion—even in the context of such detailed
criteria informing that determination. See J. App’x at 2634 (Department of Health official

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testifying that “I’m not sure . . . anything is 100 percent [objective]” because “[w]e’re
dealing with human beings,” but that “the CHA is intended to be as objective as
possible.”); id. at 3138 (senior RiverSpring executive explaining that not every aspect of
the CHA is “a hundred percent an objective observation” because assessors rely in part
on information given by the beneficiary and caregivers). For example, in completing the
CHA, a nurse assessor may need to determine whether an individual requires
“[l]imited assistance” with bed mobility (defined as “guided maneuvering of limbs,
physical guidance without taking weight”) or, instead, “[e]xtensive assistance” (defined
as “weight-bearing support . . . by 1 helper where person still performs 50% or more of
subtasks”). J. App’x at 2517. Two nurses evaluating the same individual might
sometimes reach modestly different conclusions.
Assessors may also weigh the evidence collected—from the CHA, medical
records, and so on—differently and in ways that reflect their own individual
experiences and observations. See J. App’x at 3139–40. In conducting their evaluations,
they must also account for “the individual’s preferences,” as well as “social and cultural
considerations.” § 505.14(b)(2)(iii)(a)(3). Further, in high-needs cases, the independent
medical review panel may expand the record by “request[ing] additional information or
documentation, including medical records, case notes, and any other material the lead
physician deems important to assist the panel’s review and recommendation.”
§ 505.14(b)(2)(v)(e). These aspects of the assessment process, no doubt, introduce a
degree of subjectivity and discretion into the result.
But courts have long distinguished criteria that are so “open-ended and
subjective” as to untether them entirely from substantive guidance from those that are
“determinate and well-defined,” even though they may still require judgment to apply.
Bellin I, 6 F.4th at 476 (citing cases). Two of our precedential cases in particular help to
illustrate this critical distinction.

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First, in Barrows v. Becerra, this Court recently considered the claims of
hospitalized patients asserting a property interest in maintaining their inpatient status.
24 F.4th at 123–24 [2022]. That status would make them eligible for Medicare Part A
coverage, whereas outpatient status would result in less generous Medicare Part B
coverage. Id. To draw a line between the two, the federal government promulgated the
“Two Midnight Rule,” id. at 125, providing that “inpatient admission is generally
appropriate for payment under Medicare Part A when the admitting physician expects
the patient to require hospital care that crosses two midnights,” 42 C.F.R. § 412.3(d)(1).
Under the rule, the treating physician must make an initial determination “based on
such complex medical factors as patient history and comorbidities, the severity of signs
and symptoms, current medical needs, and the risk of an adverse event.” Id.
§ 412.3(d)(1)(i). A committee of physicians then reviews that initial determination and
decides whether inpatient care is medically necessary. Barrows, 24 F.4th at 125–26, 140 &
n.132.
This Court held that the Two Midnight Rule “adequately channels official
discretion” so as to create a property interest in Part A coverage. Id. at 139. The
reviewers’ “use of judgment” to “determine whether they expect[ed] a patient to
require hospital care that crosse[d] two midnights” did not mean that “their discretion
[was] not adequately channeled for purposes of discerning a property interest.” Id. at
140. We explained that, “[w]hen a [reviewer] uses judgment in applying the standards
set by the state, so long as an administrative action is ‘required after the [reviewer]
determines (in its broad discretion) that the necessary prerequisites exist,’ a property
interest exists in the benefits regime.” Id. (quoting Allen, 482 U.S. at 376) (emphasis
removed).
Second, in Board of Pardons v. Allen, the Supreme Court examined whether an
inmate had a constitutionally protected liberty interest in parole release. 482 U.S. at 381

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[1987]. A Montana statute required the parole board to grant parole “when in its
opinion there [was] a reasonable probability that the prisoner c[ould] be released
without detriment to the prisoner or to the community” and the prisoner was “able and
willing to fulfill the obligations of a law-abiding citizen.” Id. at 376–77. Drawing on its
earlier decision in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442
U.S. 1 (1979), the Court held that the state statute created a protected liberty interest
even though the release decision was “‘necessarily subjective . . . and predictive,’” and
the “discretion of the Board [was] ‘very broad.’” Allen, 482 U.S. at 381 (quoting
Greenholtz, 442 U.S. at 13). In Allen, as in Greenholtz, what was most critical was that
“release [was] required after the Board determine[d] (in its broad discretion) that the
necessary prerequisites exist[ed].” Allen, 482 U.S. at 376; see id. at 380–81.
The personal care services criteria described above are no more open-ended or
subjective than the ones found compatible with a property interest in Barrows, Allen,
and Greenholtz. For example, we see a degree of subjectivity in all of the following
determinations: whether a patient will “require hospital care that crosses two
midnights,” a patient’s “current medical needs,” and “the risk of an adverse event,” 42
C.F.R. § 412.3(d)(1) (Barrows); whether “there is reasonable probability that the prisoner
can be released without detriment to the prisoner or to the community,” whether parole
is in “the best interests of society,” and whether a prisoner “is able and willing to fulfill
the obligations of a law-abiding citizen,” Mont. Code Ann. § 46-23-201(1)–(2) (1985)
(Allen); whether “[t]here is a substantial risk that [a prisoner] will not conform to the
conditions of parole,” whether a prisoner’s “release would depreciate the seriousness of
his crime or promote disrespect for law,” whether a prisoner’s “release would have a
substantially adverse effect on institutional discipline,” “[t]he adequacy of the
offender’s parole plan,” and upon considering 13 other factors, “[a]ny other factors the

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board determines to be relevant,” Neb. Rev. Stat. § 83-1,114(1)(a)–(c), (2)(b), (2)(n) (1976)
(Greenholtz). None is fully objective.
In reasoning otherwise, the District Court and the State make the same
fundamental error: in essence, they read our “mandating a defined administrative
outcome” language in Kapps, Sealed, and Bellin I to mean that, in applying the required
standards, no two decisionmakers could come to different conclusions. Sealed, 332 F.3d
at 56. But that is not the import of that phrase. As both this Court and the Supreme
Court have explained, the proper inquiry is whether, after the decision-making
authority “determines (in its broad discretion) that the necessary prerequisites exist,” a
particular outcome is “required.” Allen, 482 U.S. at 376; see also Barrows, 24 F.4th at 140.
The State has no discretion—none—to deny a Medicaid beneficiary 24-hour personal
care services if the “necessary prerequisites” to those services have been found to be
satisfied. Allen, 482 U.S. at 376; see above Discussion Section I.A. That is the sense in
which the scheme “mandat[es] a defined administrative outcome.” Sealed, 332 F.3d at
56. Nonetheless, even “broad discretion” in determining whether those “necessary
prerequisites” are satisfied can be compatible with the existence of a property interest.
Allen, 482 U.S. at 376. Here, to be sure, New York law affords decisionmakers a degree
of discretion in making 24-hour-care authorization decisions. But this discretion is
carefully and sufficiently bounded to create a property interest under Allen and its
progeny. That is the sense in which the scheme “meaningfully channels official
discretion.” Sealed, 332 F.3d at 56.
The District Court’s primary basis for finding that Bellin had no property interest
in 24-hour care was its view that, unlike in Barrows (where, it said, the Two Midnight
Rule “mandated” an outcome based on “[o]ne simple input—whether or not a patient
had to spend two nights at the hospital”), the CHA “gathers many inputs, all filtered
through the nurse assessor’s perspective,” a process that the court thought “require[d]

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subjective evaluation with no predictable result.” Bellin II, 2024 WL 381022, at *3. That
analysis misunderstands the reasoning of Barrows by coupling the two distinct
questions identified above. If it is determined that a patient will have to spend two
nights at the hospital, it is mandatory to designate her status as “inpatient” for
Medicare Part A purposes, as the District Court correctly observed. Barrows, 24 F.4th at
140. But the determination whether the Two Midnight Rule was satisfied was itself a
distillation of “complex medical factors,” such as “the severity of signs and symptoms”
and the patient’s “current medical needs.” 42 C.F.R. § 412.3(d)(1)(i). And these complex
factors were filtered through the “medical judgment” of evaluators. Barrows, 24 F.4th at
140; cf. Greenholtz, 442 U.S. at 8 (observing that parole decisions “involve[] a synthesis of
record facts and personal observation filtered through the experience of the
decisionmaker”). In other words, the determination in Barrows involved the same kind
of guided discretion that is present here.
The State similarly argues that its personal care services regulatory scheme does
not meaningfully channel discretion as to 24-hour-care authorizations because “the
number of hours of personal care services . . . cannot be mandated or predicted in
advance by rote calculations or formulas.” Appellee’s Br. at 34. But, as we have stressed,
that is not the test. Like the District Court, the State misunderstands where discretion is
permitted (in applying criteria for decision-making) and where it is not (in departing
from those criteria). The question is not whether these tools eliminate all discretion; it is
whether they “meaningfully channel[]” that discretion. Sealed, 332 F.3d at 56. In
Greenholtz, for example, the parole board was permitted to consider “[a]ny other factors
the board determines to be relevant.” Neb. Rev. Stat. § 83-1,114(2)(n) (1976) (emphasis
added); see also Allen, 482 U.S. at 374 (noting this “catchall factor” in Greenholtz). But the
existence of that residual discretion upon evaluating other enumerated, detailed,
mandatory criteria did not defeat the existence of a property interest in that case,

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Greenholtz, 442 U.S. at 13, and neither does it do so in this one. As we explained in
resolving Bellin’s first appeal, “[a]lthough the criteria involve professional and
subjective determinations, many of the criteria are also objective and fixed.” Bellin I, 6
F.4th at 478. The fixed criteria outlined in Section 505.14 and the State’s related policies
“place substantive limitations on the MLTC[P]s’ decision-making.” Id. at 479.
As the State observes, the ultimate decision at issue in Barrows was a binary
one—whether or not to classify a patient’s status as inpatient. See Appellee’s Br. at 39–
41. The same is true of the decisions at issue in Allen and Greenholtz—whether or not to
grant parole. Additional considerations might bear on an individual’s property interests
in non-binary determinations, such as the precise number of personal care hours that is
appropriate for a given individual who does not require around-the-clock care. But, as
explained above, the question we decide here—whether a qualifying Medicaid recipient
has a property interest in 24-hour personal care services rather than part-time personal
care services under New York law—involves a determination that may fairly be
characterized as binary, we think, and one that is carefully delimited by New York
regulations. See, e.g., § 505.14(a)(2), (a)(4). Thus, the cases discussed above are squarely
on point, and the State’s argument fails.
* * *
Because New York’s laws, regulations, policies, and practices establish that
qualifying Medicaid recipients in the State have a property interest in 24-hour personal
care services, and because the State does not identify persuasive record evidence to the
contrary, we conclude that the District Court erred in holding that due process
protections do not attach and in granting summary judgment to Defendants on that
basis.

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II. On this record, New York’s procedures are constitutionally adequate for
protecting qualifying beneficiaries’ interest in 24-hour care
Having concluded that qualifying Medicaid recipients have a property interest in
24-hour personal care services, we next must examine New York’s procedures and ask
whether they adequately protect that interest. That inquiry requires balancing three
considerations: (1) the importance of the “private interest” at stake; (2) the “risk of an
erroneous deprivation of such interest” under the existing procedures, along with the
“probable value, if any, of additional or substitute procedural safeguards”; and (3) the
weight to afford the “Government’s interest,” including the “fiscal and administrative
burdens” that additional procedures would impose. Mathews v. Eldridge, 424 U.S. 319,
335 (1976). In our view, and based on the factual record here, the private interests at
stake are meaningful to the affected individual but nevertheless limited; the procedures
Bellin proposes would likely have little or no effect on the risk of erroneous deprivation
and would only slightly expedite the correction of erroneous deprivations that do occur;
and the burden on the government arising from the new procedures is modest but not
insubstantial. Balancing these considerations, we conclude that New York’s procedures
adequately protect qualifying Medicaid recipients’ interest in timely receiving 24-hour
personal care services.
Because the District Court concluded that Bellin had no property interest at all in
receiving 24-hour at-home care, it did not reach the question whether New York’s
procedures are constitutionally adequate. We similarly declined to reach this issue in
Bellin’s first appeal. Bellin I, 6 F.4th at 483. We reach it here, however, because the
parties have since had an opportunity to develop the evidentiary record and have
briefed the issue both before the District Court and in this appeal.

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A. The private interests at stake are meaningful but limited
The primary private interest in this case is an enrollee’s interest in promptly
obtaining 24-hour (rather than part-time) at-home care when a need for that care
develops. Current procedures preclude an immediate appeal of the authorization of
care. The risk is that an enrollee in need of around-the-clock personal care may go
several additional weeks before she begins to receive it.
This interest, while meaningful, is narrow because New York’s current
procedures already mitigate the effect of a possible deprivation in three ways. First, a
Medicaid recipient may immediately appeal outright denials of personal care services.
N.Y.C.R.R. tit. 18, § 360-10.8(b)(2); 42 C.F.R. § 438.402(c)(2)(ii). For that reason, the
private interest we consider here affects only those individuals who, like Bellin, have
been authorized to receive part-time but not full-time care, not those who have been
denied personal care services altogether.
Second, Medicaid recipients with urgent needs may pursue expedited pathways
to obtaining the care they require. If a beneficiary has immediate needs for personal
care services before enrolling in a plan of care, state regulations direct the State to
“arrange for the provision of” the necessary services “as expeditiously as possible.”
§ 505.14(b)(7)(i)–(ii). And if, after enrollment, the “standard timeframe” for adjudicating
requests for increased services “could seriously jeopardize the enrollee’s life or health,”
the enrollee is entitled by federal law to receive a decision on her request for increased
services within 72 hours. 42 C.F.R. § 438.210(d)(2)(i). If the request is denied, the MLTCP
must also resolve any internal appeal within 72 hours. Id. § 438.408(b)(3).
The availability of these pathways further reduces the risk of adverse effects for
those with an acute need for immediate care. Here, Bellin never sought relief through

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these urgent-needs routes and does not seek to represent the more accentuated interests
of the narrower class of individuals who have such urgent needs.
Third, the delay introduced by New York’s procedural bar on appeals of initial
offers is relatively short.12 See Fusari v. Steinberg, 419 U.S. 379, 389 (1975) (“[T]he possible
length of wrongful deprivation of . . . benefits is an important factor in assessing the
impact of official action on the private interests.”). In practice, MLTCPs may in some
cases fail to meet the applicable legal deadlines, as occurred in Bellin’s own case. But
Bellin points to no record evidence of significant systematic delays by MLTCPs or the
State that regularly stretch the period an enrollee goes without 24-hour care to lengths
of arguably constitutional significance.
Thus, while we have recognized a “substantial” private interest in obtaining
healthcare coverage when, absent the receipt of public assistance, “patients may have to
endure lower-quality medical care or even forgo it altogether,” the interests in this case
are much narrower. Barrows, 24 F.4th at 141. We consider only the private interest in
modestly expedited access to 24-hour services for individuals who are seeking at-home
personal care (not medical treatment in a clinical setting), who already receive part-time
personal care, and who have not claimed an urgent need for the care they seek.
The financial interests at stake for the enrollee are also limited. In weighing the
significance of the private interest, we have distinguished between the “complete
12 Under existing procedures, an enrollee seeking to appeal her plan of care must first wait until
the plan goes into effect before requesting more care. That delay between enrollment and the
start of care is approximately 10 to 40 days under the State’s existing contracts, depending on
the proximity of the date of enrollment to the end of the month. If she requests more care on the
first day that she begins receiving services under the initial plan, she must then wait up to seven
days for the MLTCP to provide a decision on her request. See 42 C.F.R. § 438.210(d)(1)(i)(A).
Thus, in theory, the combined delay allowed by the existing procedures and regulations is
approximately two to seven weeks. The record is silent on the average length of that delay in
practice.

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termination” of benefits, on the one hand, and rules that “merely impose[] a set-off
against future reimbursements,” on the other. Oberlander v. Perales, 740 F.2d 116, 121 (2d
Cir. 1984). Enrollees’ financial interests here more closely resemble the latter. An
enrollee who ultimately prevails in her appeal of a denied request for increased services
may receive a retroactive adjustment of her plan’s effective date and may receive
reimbursement for qualifying out-of-pocket costs incurred after that effective date.
True, under the State’s practice, that retroactive authorization goes back only to
the date of the MLTCP’s decision on her request, not to the date of the request itself. See
J. App’x at 1533–36. And as a result, applicants like Bellin, who pay out-of-pocket for
additional services while their appeals are pending, may be eligible for reimbursement
of some, but not all, of their costs to procure additional personal care services while
their appeal is pending. But any remaining short-term cost obligations arising from
State-imposed limits on retroactive reimbursement—for Bellin, two weeks’ worth of
non-reimbursable costs—are surely different in kind than the “brutal need,” as
described in Goldberg, that is inflicted when “a welfare recipient” who is otherwise
“destitute, without funds or assets,” faces the complete termination of benefits. 397 U.S.
at 261. And even during that non-reimbursable period, enrollees like Bellin still receive
Medicaid-funded, part-time personal care services—they are deprived only of around-
the-clock care.
We conclude, then, that the private interests that Bellin has shown to be at stake
in this case are meaningful, but limited in both time and cost. The State represents,
without objection from Bellin, that the “immediate needs” assessment, expedited
authorization, and expedited appeal pathways are readily available. See Appellee Br. at
48; J. App’x at 977, 1496–97, 2048–50. Were these safety valves for individuals with
acute, immediate needs difficult to obtain, available only in theory, or subject to severe
and systematic delays, the private interests at stake would be significantly weightier.

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B. The proposed procedures would not reduce the risk and only modestly
reduce the length of erroneous deprivation
The procedures Bellin seeks to have imposed could theoretically decrease the
risk of erroneous deprivation in two ways: first, by reducing the likelihood that an
enrollee is incorrectly authorized to receive only part-time (instead of 24-hour) care,
and, second, by shrinking the delay between enrollment and the authorization (on
appeal) of 24-hour care.
We see no basis to believe that the proposed procedures are likely to reduce the
risk of incorrect determinations. The record evidence is sparse on the risk of error and
on how providing the right to appeal initial offers might affect it. Further, Defendants
challenge the import of the evidence that has been offered.13 And Bellin does not
explain, even as a theoretical matter, why the additional procedures she seeks would
reduce that error rate. Indeed, if enrollees were able to appeal an initial offer as Bellin
requests, the procedures by which MLTCPs and the State would review plans of care
and the evidence they would consider in doing so would be unchanged: both the initial
plan-of-care offer and subsequent decisions whether to increase services must account
for the results of the initial assessment, including the CHA, as well as any additional
13 In her Rule 56.1 counter-statement, Bellin pointed to record evidence that (she asserted)
establishes a 72% reversal rate across 6,366 fair hearing decisions reviewing MLTCPs’ denials of
requests for increased care. J. App’x at 4088–89. On appeal, she cites that evidence in support of
her due process argument. Appellant’s Reply Br. at 17; see Barrows, 24 F.4th at 141 & n.147
(describing a 37.5% reversal rate as a “high rate of error”). But see Mathews, 424 U.S. at 347
(noting the difference between reversal rate among appealed cases and overall reversal rate and
describing reversal rate statistics as “relevant” but “certainly not controlling in this case”). But
in the District Court proceedings, Defendants moved to strike the relevant portions of Bellin’s
counter-statement as procedurally improper. The District Court found that Defendants’ motion
“ha[d] merit” but denied it as moot in its summary judgment order in Defendants’ favor.
Bellin II, 2024 WL 381022, at *1 n.1. In light of our conclusion that the error rate itself is not
central to Bellin’s due process claim, we express no view on the merits of Defendants’ motion to
strike and do not rely on the proffered reversal-rate statistics.

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evaluations the MLTCP might conduct. See, e.g., Fair Hearing No. 7225409L (Jan. 15,
2016), at 14; Fair Hearing No. 7298986J (May 10, 2016), at 15; Fair Hearing No. 7362941K
(Aug. 17, 2016), at 13–14. Thus, Bellin has not shown that the procedures she proposes
are likely to reduce the risk of erroneous plan-of-care determinations at all.
Rather, as we have described, Bellin’s claim focuses on the timing of appeals, not
the prevailing outcomes. In essence, she wishes only to avail herself of the existing
review procedures earlier: that is, immediately upon enrollment in a plan, not weeks or
more later, after receiving an adverse initial decision.
It is true that administrative delay in providing benefits “can become so
unreasonable as to deny due process,” but we are not persuaded that the record
evidence supports such a finding here. Kraebel v. N.Y. City Dep’t of Hous. Pres. & Dev.,
959 F.2d 395, 405 (2d Cir. 1992). The relevant regulatory and contractual provisions
imply a delay due to the challenged procedures on the order of weeks, not many
months, and the record contains no systematic evidence of longer delays in practice. Cf.
Isaacs v. Bowen, 865 F.2d 468, 477 (2d Cir. 1989) (six-month delay introduced by
challenged procedure not violative of due process); Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 547 (1985) (nine-month adjudication not “unconstitutionally lengthy per
se” absent a showing that delay was “unreasonably prolonged”); Mathews, 424 U.S. at
342 (procedures contributing to delay that “exceeds one year” not violative of due
process).
Further, much of the potential delay in securing increased care is attributable to
other aspects of the appeals procedures—not those that Bellin challenges. For example,
even if the State adopted the procedures Bellin proposes, she and other enrollees would
still be subject to the State’s exhaustion requirement: that an enrollee pursue an internal
appeal of a denial of increased services with the MLTCP before seeking a fair hearing
from the State. MLTCPs are generally allowed 30 days to decide those appeals. 42 C.F.R.

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§ 438.408(b)(2); see also id. § 438.408(b)(3) (requiring expedited resolution of appeals in
limited circumstances). The State then enjoys an additional 90 days from the date of a
fair hearing request to issue a fair hearing decision. N.Y.C.R.R. tit. 18, § 358-6.4(a).
Enrollees would be subject to these decisional timeframes even if they had the right to
immediately appeal initial offers.
Neither side identifies record evidence bearing on how long the internal and
external appeals processes take or on what portion of that period, in practice, is fairly
attributable to the absence of an immediate appeal right for initial determinations. And
the exhaustion requirement present here is typical of administrative-review
proceedings arising from benefits determinations. See, e.g., Conn. Gen. Stat. Ann. §§ 38a-
591(a)((19), 38a-591d(g), 38a-591e(f); Vt. Stat. Ann. tit. 3, § 3091(i). So, the “probable
value” of the proposed procedural changes on care timelines is uncertain at best.
Mathews, 424 U.S. at 335.14
We conclude, then, that offering enrollees the right to an immediate appeal of
initial determinations may modestly reduce the duration of any erroneous deprivations
but is unlikely to decrease the risk of erroneous deprivation per se—that is, the error rate
in MLTCPs’ assessments of the appropriate level of services.
14 In addition to their timing, the existing procedures do differ from the proposed procedures in
the potential out-of-pocket cost for enrollees: the State’s practice if an enrollee prevails in her
appeal is to make the effective date of the enrollee’s coverage retroactive to the date by which
the MLTCP was required to provide an initial decision on the request for increased services (for
Bellin, June 18), and not to the effective date of the plan of care (for Bellin, June 1), as would be
case under the procedures Bellin proposes. See J. App’x at 125 (amended fair hearing decision
modifying the effective date of Bellin’s 24-hour care from June 1 to June 18 for this reason),
1533–36 (Department of Health official describing this general practice). That difference may
have implications for an enrollee’s ability to recoup out-of-pocket expenses incurred while her
request was being adjudicated. See above Background Section I.C. But those implications, if any,
are merely incidental to the core relief Bellin seeks for herself and the putative class: the right to
an earlier appeal.

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C. The increased burden on the government is marginal
Finally, we consider the magnitude of the burden that the requested procedures
would impose on the State. Mathews, 424 U.S. at 335. Procedural change always entails
some measure of administrative burden for the government and compliance costs for its
agents. A change in the initial-appeal rule would require the Department of Health to
develop new guidance and procedures, and to communicate those changes to MLTCPs
and more generally. See J. App’x at 2052–53 (State declarant describing the required
cascading regulatory and administrative changes). The MLTCPs, in turn, would need to
update and disseminate their own new policies.
And once the new procedures are implemented, MLTCPs would need to
adjudicate the internal appeals of enrollees who elect to exercise the right to appeal their
initial offers, and the State would need to provide fair hearing proceedings to enrollees
whose internal appeals are denied and who seek external review. Finally, the net result
of the expedited procedures would likely be to provide enrollees who successfully
appeal their initial offers with several more weeks of 24-hour personal care services
than they would have received under current procedures. MLTCPs can be expected to
bear some additional administrative burden in providing those extra weeks of services.
We conclude, still, that requiring the State to permit enrollees to use existing
procedural mechanisms (the internal appeal and fair hearing processes) to challenge an
existing determination (the initial offer) would effect only a relatively modest additional
burden because all the mechanisms for review are already in place. Again, Bellin simply
seeks to avail herself of those existing procedures sooner.
The State protests that if even “a fraction” of enrollees requested fair hearings to
appeal pre-enrollment offers, it “would have to expend significant resources.”
Appellee’s Br. at 51. But in support it cites only evidence of the current volume of

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appeals, not any significant record evidence on the critical question of how the current
volume would change under the proposed procedures. Nor has it given much reason to
believe, even as a theoretical matter, that an immediate right to appeal would result in a
significant increase in the number of fair hearings. If, as the State contends, the existing
right to request an increase in services and to appeal any denial of that request provides
many of the same protections as would the right to appeal an initial offer that Bellin
seeks, it stands to reason that many applicants are already using the existing process to
challenge initial offers—just as Bellin did. So, much of any increase caused by new fair
hearings appealing initial offers could well correspond with a commensurate decrease
in fair hearings appealing denials of requests for increased services.
The proposed procedures also seem unlikely to impose a significantly increased
burden for MLTCPs. In fact, permitting appeals of initial offers themselves—without
requiring an additional request (for increased services), an additional evaluation of the
enrollee (to evaluate the request), and an additional determination by the MLTCP (to
decide the request)—may even reduce the burden on MLTCPs relative to the existing
procedures. The State worries about the risk that applicants will pursue parallel appeals
of multiple pre-enrollment offers from different MLTCPs. But Bellin seeks only a
beneficiary’s right to appeal an MLTCP’s initial offer of services after she has elected to
enroll in that MLTCP. See Appellant’s Reply Br. at 20. Thus, adopting Bellin’s position
appears to present little risk of generating duplicative appeals.
* * *
Ultimately, we are not persuaded that Bellin is constitutionally entitled to the
additional process she seeks. The private interest in 24-hour care as opposed to part-
time care ultimately is narrow (though personally meaningful), and the likelihood that
an immediate right to appeal would reduce the risk of error is practically zero. Mathews,
424 U.S. at 335. Indeed, even Bellin does not contend that the procedures she seeks

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would improve the accuracy of plan-of-care determinations themselves. The only
remaining benefit is a modestly expedited decision timeline, but we have long
recognized that administrative delays in the provision of benefits are permissible so
long as they are reasonable. See, e.g., Cleveland Bd. of Educ., 470 U.S. at 547. Balancing the
narrow private interest and the negligible effect of the proposed procedures against the
government burden, we fail to find on the record before us a due process violation
under Mathews.
Bellin has no doubt identified a significant shortcoming in the State’s program
for providing qualifying Medicaid recipients with personal care services. She has
sought to improve this system for herself and, as importantly, for others like her. And
she has established that under New York law, qualifying Medicaid recipients have a
property interest in receiving 24-hour—rather than part-time—personal care services,
triggering constitutional due process protections. But Bellin has not shown that,
however imperfect, New York’s current appeals procedures governing challenges to
less than full 24-hour care fall short of the minimum guaranteed by the Due Process
Clause.
CONCLUSION
For the reasons set forth above, we conclude that qualifying Medicaid recipients
in New York have a property interest in receiving 24-hour personal care services. We
also conclude that on this record, the State has shown that this interest is adequately
protected by New York’s existing procedures. We therefore AFFIRM, on this alternative
ground, the judgment of the District Court in favor of Defendants.

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