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BASS v. RICHARDSON

November 19, 1971

Morris BASS (residing at 120 Gale Place, Bronx, New York), et al., Plaintiffs,
v.
Elliott RICHARDSON, Secretary of the United States Department of Health, Education and Welfare, individually and in his official capacity, et al., Defendants, and City of New York and New York City Health & Hospitals Corporation, Plaintiffs-Intervenors


Cooper, District Judge.


The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Plaintiffs move for a preliminary injunction to restrain cut-backs in benefits under the Medicaid Program of the State of New York and for determination of a class action. The motions are granted.

 The plaintiffs have made a very strong showing of substantial probability of success at trial, clear and overwhelming irreparable injury which they will otherwise suffer, and the equities balance decidedly in their favor. Even were the showing of probability of success less compelling, which it in fact is, the balance of hardships is more than sufficient to warrant the issuance of an injunction. Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir. 1969); Dino De Laurentiis Cinematografica, SpA v. D-150, Inc., 366 F.2d 373, 375 (2d Cir. 1966); Hamilton Watch Company v. Benrus Watch Company, 206 F.2d 738, 740 (2d Cir. 1953).

 This opinion *fn1" constitutes our findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 Medicaid

 New York State has a plan of medical assistance for eligible persons (Medicaid), *fn2" established in accordance with Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., under which it receives federal matching funds for the costs of such program. The Federal Government has currently committed itself to the health of the residents in New York State through this plan to the extent of six hundred million dollars ($600 million); it thus meets fifty per cent (50%) of the total costs of the plan.

 On April 14, 1971 New York State amended the Social Services Law by enacting Chapters 113 and 131 of the laws of 1971, to be effective May 15, 1971. *fn3" The new law sought to significantly and drastically infringe upon the availability of medical assistance by reducing the amount of income and resources an individual may have and hold and still remain eligible for Medicaid. Additionally, many medical services previously supplied would be eliminated for that category of recipients described as "medically needy," i.e. those individuals with incomes and resources above the cash public assistance level but below the level necessary to purchase essential medical services. Plaintiffs herein are "medically needy" persons. Among services which would be eliminated for plaintiffs and their class are:

 
(1) Dental care including dentist's services and dentures,
 
(2) Drugs, *fn4" biologicals, blood products and sick room supplies,
 
(3) Eyeglasses and prosthetic devices,
 
(4) Private duty nursing services,
 
(5) Optometrists' services,
 
(6) Podiatrists' services,
 
(7) Chiropractic services,
 
(8) Psychological testing,
 
(9) Rehabilitative therapies including physical, occupational and speech therapy or orthoptic training,
 
(10) Any diagnostic, screening, or preventive services not provided by a physician and not a laboratory or x-ray service.

 Plaintiffs claim immediate irreparable injury will result from cut-backs they contend are unlawful.

 Prior proceedings

 Implementation of cut-backs was restrained by a temporary restraining order of May 12, 1971 and a preliminary injunction of June 2, 1971 by Judge Tenney of this court on the ground, inter alia, that the prior approval of the Secretary of the Department of Health, Education and Welfare was an absolute prerequisite to amendments effecting state plan reductions under Section 1902(d) of the Social Security Act, 42 U.S.C. § 1396a(d), and that such approval had not been given. Bass et al. v. Rockefeller et al., 331 F. Supp. 945 (S.D.N.Y. 1971). (Bass I).

 By letters of September 15 and 16, 1971 (Plaintiffs Exhibits E and F) the Department of Health, Education and Welfare advised the State that such cutback had been approved. On September 16, 1971 the State similarly informed our Circuit Court (then considering the appeal from Judge Tenney's order) and on that date it remanded the case to the District Court with instructions to vacate the preliminary injunction and dismiss the case as moot. Judge Tenney so complied on September 21, 1971.

 This action was subsequently filed (Bass II). We granted a temporary restraining order on October 22, 1971 to preserve the health of the medically needy recipients pending determination of the motion for a preliminary injunction, and extended the order November 1, 1971 upon good cause shown.

 A motion to intervene by the City of New York and the New York City Health and Hospitals Corporation (returnable October 26, 1971) was granted November 3, 1971.

 Bass II is clearly a separate action from Bass I. The sole issue treated in the Court of Appeals opinion was whether an approval of the Secretary of Health, Education and Welfare was a prerequisite to a state plan amendment under § 1902(d); with the approval by the Secretary that issue became moot. Jurisdiction and other issues were not discussed.

 In this case, among new issues presented are: (1) whether the approval of the Secretary, which has now been given, complies with §§ 1902(d) and 1903(e) and (2) whether expiration of the suspension of § 1903(e) on July 1, 1971 completely bars any cut-backs in Medicaid. Neither of these issues presented a justiciable case or controversy at the time Bass I was filed. *fn5"

 Jurisdiction

 There are multiple bases of federal jurisdiction. We share Judge Tenney's view that 28 U.S.C. § 1331 jurisdiction exists as to the class plaintiffs. Bass I, at 948-952. Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969) is only intended to bar trivial cases of aggregation, cases which are "almost exclusively" diversity cases, from the federal courts. 394 U.S. 332, 341, 89 S. Ct. 1053, 22 L. Ed. 2d 319. This case is not trivial and it is not a diversity case. The right at issue is the proper administration of a program to which billions of dollars of federal funds have been committed and where Congress explicitly and repeatedly expressed concern that the program be rigorously and properly operated. If any case is proper for adjudication of important federal rights and issues of federal law by a federal court, it is this case.

 Jurisdiction also exists as to the intervenors whose claims, amounting to millions of dollars, are far in excess of $10,000. We treat the pleadings of the intervenors as those of a separate action if such is even necessary. Hackner v. Guaranty Trust Co. of New York, 117 F.2d 95 (2d Cir.), cert. denied, 313 U.S. 559, 61 S. Ct. 835, 85 L. Ed. 1520 (1941); 3B Moore's Federal Practice P24.16 [2] at 24-613, 24-613, n. 9.

 Additionally, the federal government is a party under 28 U.S.C. § 1361 and 5 U.S.C. § 701 et seq., and ancillary jurisdiction exists as to the other parties. Wright, Law of Federal Courts, § 9.

 The claims arise under 42 U.S.C. § 1396 et seq. and 42 U.S.C. § 1983.

 Class action

 Plaintiff Morris Bass resides with his wife Esther in Bronx County, New York. He is 62 years of age, his only income is $171.50 per month Social Security and $75 per month from a union pension. Plaintiff's annual income is less than current Medicaid income eligibility levels and he is therefore qualified for medical assistance.

 Mr. Bass suffers from Parkinson's disease. Expensive prescription drugs therefore cost $53 per month ($636 per year). Medicaid enables plaintiff to obtain these drugs. Prior to receiving the present medications, this plaintiff was unable to walk or speak in a comprehensible manner; he could not care for himself or leave his home. The direct result of his medication (including the drug L-Dopa) presents a sharp contrast, for he can now care for himself, walk, speak and perform numerous other tasks previously beyond his capacity. Cessation of this medication will return him to his previous painful and helpless condition.

 The significance of Medicaid, and the individual and collective human suffering which it ameliorates, rehabilitates and forestalls, is illustrated by the sworn statement of plaintiff Bass:

 
"Medicaid is a lifesaver to me because I don't have the money to buy the drugs myself. Before I could get L-Dopa, I couldn't leave the house because I'd fall down when I walked, I used to tremble all the time, and nobody could understand me when I spoke. Now I can speak and walk without being afraid. I can now take care of myself, which I couldn't do before. I know that without L-dopa I'll be back to how I was before. I even think I may be worse off because I may be in what my doctor calls a more advanced stage of Parkinson's. Life is not easy now, but I don't even think about being without L-dopa." (Bass affidavit, September 24, 1971).

 Now we come to plaintiff Barney Scardino, 62 years old residing with his wife Josephine in Bronx County, New York. Mr. Scardino also suffers from disabling Parkinson's disease, necessitating drug expenditures of approximately $31 monthly. With an annual income of less than $3000 he was eligible for Medicaid coverage.

 Prior to receiving medication Mr. Scardino was unable to work or walk. With medication he was able to resume employment on a part-time basis. However, increased difficulties caused him to go on sick leave. Additional drugs have been prescribed and he hopes to return to work and so make whatever contribution his health, maintained with the assistance of vitally needed medication, will allow. Deprived of medication plaintiff in all probability would be rendered immediately unemployable, his condition degenerate to helplessness.

 Another instance is presented by plaintiffs William and Genevieve Braster residing in Franklin Square, Nassau County, New York. Mr. Braster's net income is approximately $128 per week; Mrs. Braster receives $72 monthly in Social Security benefits. *fn6" Mrs. Braster suffers from a disabling stroke and requires the continual care of a home health aide alleged to cost approximately $250 per week.

 Under Chapters 113 and 131 of the Laws of 1971, plaintiffs Bass and Scardino will no longer receive needed imperative medication for the simple reason that they will be unable to pay for it themselves. Under the amendments, plaintiffs Braster will no longer receive reimbursement for their drugs, and will receive no reimbursement for home health care unless they substantially increase their own contribution to the cost of these services.

 We need elaborate no further; representation of the class is more than adequate and it is abundantly clear from the papers before us that a class action determination is appropriate under Rule 23.

 Statutes and Legislative History7

 The relevant statutory provisions are as follows:

 § 1903 Comprehensive care and services for eligible individuals ...


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