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BURCHETTE v. DUMPSON

December 13, 1974

DAISY BURCHETTE, by her next friend, MARIE BROWNE, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
JAMES R. DUMPSON, individually and as Commissioner of the New York City Department of Social Services, and ABE LAVINE, individually and as Commissioner of the New York State Department of Social Services, Defendants



The opinion of the court was delivered by: PLATT

Memorandum and Order

 December 12, 1974

 PLATT, District Judge.

 This action is instituted under 28 U.S.C. §§ 2201, 2202, Rules 54, 57, 58 and 65 of the Federal Rules of Civil Procedure, 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1983 (Civil Rights Act), demanding declaratory relief, damages and a permanent injunction restraining the defendants, the New York State and City Departments of Social Services, from transferring one Daisy Burchette and "all those similarly situated" from "full-service nursing homes" to "intermediate health-related facilities" on the grounds that (i) the procedures utilized by the defendants to effect such transfers violate federal and state laws and regulations and (ii) the New York State statutory and regulatory provisions relating to transfer are unconstitutional in that they violate plaintiffs constitutionally guaranteed rights of due process, treatment, travel, association and life.

 The complaint also requests a three-judge special district court to be invoked pursuant to 28 U.S.C. §§ 2281, 2282, and 2284 and certification of the action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiff moves for an order certifying the above and defendant cross moves for an order dismissing these requests and the granting of summary judgment on the grounds that (i) the claims of the plaintiff, as the sole named claimant, are moot; and (ii) plaintiffs claims cannot be maintained as a class action.

 FACTS

 Plaintiff Daisy Burchette is at the present and has been a resident of the Van Doren Nursing Home in Queens, New York, since February 24, 1971. She was admitted to the nursing home from the Flushing Hospital following a stroke that required nearly a month of hospital care. It is alleged that plaintiff's physical and mental condition has shown marked improvement while a resident at the nursing home but she still experiences periods of disorientation and remains incompetent to aid in or conduct her own legal affairs.

 On or about January 8, 1974, the plaintiff and her daughter, Marie Browne, were informed orally by a representative of the New York City Department of Social Services that the plaintiff no longer qualified for full-time nursing home care and that she would be transferred to an intermediate health-related facility. On or about January 22, 1974, the New York City Department of Social Services sent a NOTICE OF INTENT TO DISCONTINUE OR SUSPEND PUBLIC ASSISTANCE to the plaintiff Burchette. The Notice does not advise the plaintiff of the availability of community legal services to aid at a fair hearing and the plaintiff alleges she received no such notice. Plaintiff's daughter, Marie Browne, alleges that she was only made aware of this notification by the Van Doren Nursing Home, acting upon its own initiative, and not pursuant to any requirement of law, and upon receipt of such notice requested a fair hearing to contest the decision to transfer her mother, Mrs. Burchette.

 A hearing was held pursuant to 18 N.Y.C.R.R. § 358.3 on April 5, 1974, and a decision rendered on April 19, 1974, on behalf of the defendant Abe Lavine, Commissioner, by Carmen Shang, Assistant Commissioner, in which it was determined that the decision to transfer the plaintiff Burchette was properly made. The reasons enumerated in defendant's decision of April 19, 1974, in support thereof were as follows:

 
(1) Section 501.3 of the Regulations of the State Department of Social Services requires the medical director of the agency to periodically review the medical records of recipients of medical assistance to determine whether the type of medical care previously authorized appears to be consistent with good medical practice and best meets the needs of the patient at the most reasonable cost;
 
(2) A physician examined plaintiff Burchette's medical records and determined that she no longer needed nursing home care; and
 
(3) Although plaintiff Burchette's representative stated that he felt a transfer would be detrimental to the health of the plaintiff, he was unable to present "medical testimony that his (sic) medical needs would not be met by an intermediate care facility."

 On May 17, 1974, more than five weeks prior to the time the instant action was commenced, the plaintiff instituted an Article 78 proceeding in Queens County Supreme Court, Special Term, Part I, seeking and receiving a temporary restraining order against the impending transfer and challenging the evidentiary substantiality of the very same determination to transfer which is now at issue here. The State Court proceeding is still pending at this time although the temporary restraining order expired on July 24, 1974.

 The plaintiff filed the present action on June 28, 1974, and noticed a motion for certification of a class action and the convening of a three-judge court returnable on July 12, 1974. Defendants cross moved for an order dismissing plaintiffs motions for a class action, convening of a three-judge court, for preliminary injunction and the granting of summary judgment for the defendant Commissioners on the grounds that:

 
(1) The claims of Daisy Burchette, as the sole named claimant, were moot;
 
(2) Plaintiff Burchette's claims cannot be maintained as a class action.

 Argument was held on July 19, 1974, when it was disclosed that the City defendant had uncovered a second medical report made on the plaintiff Burchette on February 28, 1974, in which it was found that her condition did indeed require full-time nursing home care. Since this report obviously superseded the findings in the earlier July 27, 1973 report on which the fair hearing was based, a decision has been made not to transfer the plaintiff to an intermediate health-care facility or to reduce her payment rates. Therefore, the defendants argued that the plaintiff's claims are now moot and that therefore she is not a proper representative of the class.

 The sole questions before this Court at this time are whether, under the circumstances, a three-judge court is required pursuant to 28 U.S.C. §§ 2281 and 2284 and whether the action should be certified as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.

 JURISDICTION -- SECTION 1343

 The complaint (paragraph 2) alleges as one of the bases for jurisdiction 28 U.S.C. §§ 1343(3) and ...


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