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August 4, 1969

Edna ROTHSTEIN, Sylvia Miller and Henrietta Batson, individually and on behalf of all other persons similarly situated, Plaintiffs,
George K. WYMAN, as Commissioner of the Department of Social Services of the State of New York, and the Department of Social Services of the State of New York, Defendants

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

Plaintiffs in this class action are aged, blind and disabled welfare recipients residing in Nassau and Westchester Counties, New York. They receive payments under a cooperative federal-New York State assistance program established pursuant to the Social Security Act, 42 U.S.C. §§ 301 et seq., 1382. The program, which must meet certain federal requirements, is financed jointly by the two governments and administered by the State of New York pursuant to its Social Services Law, McKinney's Consol.Laws, c. 55, § 131 et seq. and regulations promulgated thereunder by its Department of Social Services. Plaintiffs attack a recent amendment of that law, § 131-a, which has resulted in their receiving lower payments than welfare recipients residing in New York City, as violative of the Equal Protection Clause of the Fourteenth Amendment and of certain provisions of the Social Security Act, as amended, 42 U.S.C. §§ 301 et seq., 1202(a)(1), 1352(a)(1) and 1382(a)(1). *fn1" By way of relief they seek a declaratory judgment to the effect that the amendment is unlawful, and preliminary and permanent injunctions enjoining any enforcement and implementation of the amendment that would reduce public assistance payments received by them below the level available to residents of New York City. Defendants have cross-moved for summary judgment.

For the reasons stated herein, preliminary injunctive relief is granted and defendants' motion for summary judgment is denied.

 At all times here involved New York's Social Services Law, § 131, has imposed upon state, county, city and town social services officials the duty "to provide adequately for those unable to maintain themselves" and, toward that objective, to assume the responsibility of administering the necessary care, treatment and services to the extent permissible under appropriations made by the State and various local governments forming its subdivisions. Subsection 3 of § 131 provides:

"3. A principal consideration in determining the adequacy of assistance and care [in each case] shall be the sufficiency thereof for maintenance in accordance with standards of public health in the community with due regard for variations in cost from time to time and between localities, in accordance with the provisions of section one hundred thirty-one-a of this chapter."

 Prior to the recent adoption of § 131-a the State Department of Social Services (which has the duty of promulgating regulations and instituting procedures for the administration and distribution of public assistance in New York State, Social Services Law, § 20), acting pursuant to the foregoing provisions, determined the standards of need and the adequacy of allowances to be made for welfare assistance to various categories (including the aged, blind and disabled) by periodic calculations of the cost of component recurring items required to provide a basic subsistence level, including certain items of food, laundry, household supplies, school expenses, utilities, and personal incidentals. The component items were confined, according to defendants, to the "basics of life" and did not include any allowance for transportation to, or use of, recreational or cultural facilities, such as museums, parks or beaches. Following such studies the Department then established administratively a monthly level or standard of need required by a recipient for these items. Other requirements, including rent, fuel for heat, and various non-recurring, emergency, or special needs, were made the subject of separate or special grants and allowances, which are not in issue here except to the extent that they constitute a background leading to the New York Legislature's effort, in adopting § 131-a in 1969, to simplify the cumbersome and complicated structure of welfare grants within the State by making greater use of the so-called "flat grant" system. *fn2"

 In making the calculations forming the basis of the standard of essential needs, the Department did not engage in a county-by-county analysis of the cost of each of the component items, except with respect to utilities, since the variations in cost between counties was not sufficient to warrant any differentiation. For instance, the relevant schedule of costs published by the Bureau of Labor Statistics, U.S. Department of Labor, which was among the publications used by defendant in making its computations, placed New York City and surrounding counties in the same classification. After defendants thus arrived at proposed levels of need annually, they then rebudgeted the case load for the State, taking into consideration the availability of funds at the local level, and recommended revised standards to the State Legislature.

 Prior to the recent enactment of § 131-a the last such cost survey made by the State Department of Social Services was in May, 1968, following which the Department, in August 1968, divided the State into three regions known as "SA-1," "SA-2" and "SA-3," for each of which a separate level was established for recipients in that region. The differences between the levels for the three regions were based on variations in utility costs. The region known as SA-1, as thus established by defendants, included New York City and the counties of Dutchess, Greene, Monroe, Nassau, Suffolk, Ulster and Westchester (hereinafter sometimes referred to as the "surrounding counties"). The level established for recipients in the SA-1 region varied according to the number of persons in each household and the age of the dependent children in the household. The level for a single person household, for instance, was established at $66 per month and was increased in gradations to a high of $464 for a household of 10 persons, the exact amount depending on the age of the various children in the household. The important fact for purposes of the present application is that as of August, 1968 the Department of Social Services had concluded that the cost of the essential recurring items going into the allowance level for welfare recipients did not vary sufficiently between New York City and its surrounding counties to warrant any differentiation between the standards of needs for such recipients. Title 18, N.Y.C.R.R., § 352.4. *fn3" On March 31, 1969 the New York Legislature enacted § 131-a (Laws of 1969, ch. 184), which established two schedules of maximum flat monthly grants of public assistance (exclusive of shelter and fuel for heating) allowable to recipients, one applicable to New York City and the other to all other social services districts in New York State, as follows: Number of Persons in Household Each 1 2 3 4 5 6 7 Additio nal New York City 70 116 162 208 254 297 340 43 Outside New York City 60 101 142 183 224 257 290 33

 A differential in favor of New York City recipients was thus approved, subject to change or elimination by defendants' promulgation of a schedule of lesser monthly allowance levels for any social services district upon a showing that the total cost of the items required to be provided in the schedule actually was less than the schedule established by regulations of the Department.

 On May 2, 1969, the Legislature amended the recently adopted § 131-a (Laws of 1969, ch. 411) to permit the Commissioner to raise or lower the levels of the schedules for all districts except New York City upon a showing that such a revision was warranted by the cost of the items included in such schedules, subject to the condition that the levels of schedules for districts outside of New York City could not exceed the maximums prescribed for New York City. Thus, as finally amended, § 131-a established a maximum level for New York City that could not be reduced by defendants and a lower so-called "maximum" level for all other social services districts that could be reduced or increased (notwithstanding its characterization as "maximum") up to the New York City level.

 The Legislature's reason for thus differentiating between New York City and its surrounding counties, and for guaranteeing a maximum level to the welfare recipients in the former while subjecting those in the latter to the possibility of an increase or decrease in assistance at defendants' discretion, is a mystery, particularly in view of the Department's past practice of grouping them in one classification on the basis of data that had not changed prior to the adoption of § 131-a. The "Legislative Findings and Purpose" set forth at the outset of the amendment contains a declaration by the Legislature to the effect that it was necessary to establish schedules "based upon the costs of delivering the needs of public assistance recipients in the respective social services districts of the state." However, the only relevant cost data available to the Legislature was the 1968 cost study that had led the Department of Social Services administratively to establish the schedule of needs for recipients in New York City and surrounding counties at identical levels.

 The lack of any rationality for the Legislature's differentiation is deepened by the fact that since the 1968 study no further study of the costs of component items going into the levels has been made. Defendant George K. Wyman, Commissioner of Social Services, testified that his Department did not undertake or furnish any other cost study for the assistance of the Legislature and that as far as he knew the only information furnished by his Department to the Legislature pertaining to such grant levels was that forming the basis of the schedules that had been administratively promulgated by him in 1968. He frankly stated that he did not know why the Legislature differentiated between New York City and surrounding counties, and that it was not done on his recommendation.

 The "Legislative Findings and Purpose," as well as other evidence furnished by plaintiffs, indicates that budgetary considerations may have played a role in the adoption of § 131-a. At the outset of the amendment the Legislature referred to "the spiraling rise of public assistance rolls and the expenditures therefor, despite [continuous prosperity and high employment]." It went on to emphasize that the new schedules would "release caseworkers for the more important task of providing casework services." Its newly adopted schedules for the most part did not increase the standards of needs for recipients, and in some instances they substantially reduced existing levels. Drastic reductions have been made in allowances for certain special needs not provided for in the basic monthly grants.

 On June 5, 1969, pursuant to the authority granted to him by § 131-a, as amended, defendants promulgated schedules increasing the levels of welfare allowances for districts located in surrounding counties to a point where the gap that had been established by the Legislature between them and New York City was partially closed. For instance the allowance for a single adult household was raised from the $60 established by the Legislature to $65, which brought it within $5 of the $70 level fixed by the Legislature for New York City. Levels for larger households in the surrounding counties ...

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