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DUFFANY v. VAN LARE

May 22, 1973

Joan DUFFANY et al., Plaintiffs,
v.
Barry VAN LARE, Acting Commissioner of the New York State Department of Social Services, and Haswell P. Brayton, Jr., Commissioner of the Jefferson County Department of Social Services, Individually and in their official capacities, Defendants


Port, District Judge.


The opinion of the court was delivered by: PORT

PORT, District Judge.

Memorandum-Decision and Order

 This case is before the court on defendants' motion to dismiss the complaint on the grounds, inter alia, of failure to state a claim upon which relief can be granted and lack of jurisdiction.

 The plaintiffs in a twenty-six page complaint alleging eight separate causes of action seek the following relief:

 
1. An order that the action be maintained as a class action;
 
2. The issuance of a permanent injunction ordering the State Commissioner of Social Services:
 
(a). to establish or cause to be established by the Jefferson County Department of Social Services "a fee structure, which is adequate and designed to enlist a sufficient number of dentists of that County to actively participate in the State Medicaid Program, so that * * * dental care and services to the extent they are available to the general population" will be available to the plaintiffs and those similarly situated in Jefferson County;
 
(b). to establish or cause to be established a similar fee structure with reference to each local Welfare District throughout the State;
 
(c). "to insure reasonably prompt dental care and services are available to named plaintiffs" and members of the class, situated in Jefferson County, within their own respective community "when such services are available to others";
 
(d). to provide the same relief statewide;
 
(e). "to immediately review and exercise general supervision over the administration of the State Medicaid Program by the Jefferson County Department of Social Services to insure that dental care and services are available to named plaintiffs" and members of the class, situated in Jefferson County;
 
(f). to provide the same relief statewide;
 
3. The issuance of a permanent injunction ordering the Commissioner of the Jefferson County Department of Social Services:
 
(a). to establish a fee structure as indicated in 2(a) above to the extent that the State Commissioner of Social Services has not done so;
 
(b). to immediately "make available dental care and services to named plaintiffs" and members of the class, "situated in Jefferson County either by contracting with the dentists of Jefferson County or by the department directly furnishing such services itself."

 The plaintiffs in a preliminary statement allege in summary that they seek an order requiring the defendants to enforce and obey the provisions of the Social Security Act, 42 U.S.C. § 1396 et seq.; the Code of Federal Regulations; the Handbook of Public Assistance Administration, Supplement B; the New York State Social Services Law; and the New York State Plan for Medical Assistance providing for the availability of dental care and services to all persons who are eligible and qualify under New York State Medical Assistance Program commonly known as Medicaid.

 Nowhere is it alleged that any of the statutes or regulations are constitutionally infirm.

 THE PARTIES

 The defendants are the Commissioner of Social Services of New York *fn1" and the Commissioner of Social Services of Jefferson County.

 The 29 plaintiffs are the mothers and children of four families receiving ADC, and the parents and children of a fifth family receiving home assistance. All are enrolled under Medicaid, and all live in or near ...


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