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November 12, 1975

Marion AITCHISON, individually and on behalf of Michael Aitchison and Janice Aitchison, her children, and on behalf of all other persons similarly situated, Plaintiffs,
Stephen BERGER, individually and as Commissioner of the Department of Social Services of the State of New York and Noah Weinberg, individually and as Commissioner of the Department of Social Services of Rockland County, New York, Defendants

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 Ten years ago, Congress enacted Title XIX of the Social Security Act, 42 U.S. C. §§ 1396-1396g, the so-called "Medicaid" legislation. Medicaid is a cooperative federal-state medical assistance program operated under state direction, subject to extensive federal statutory and regulatory guidelines. States are not required to participate in Medicaid, nor, if they do participate, to extend benefits to any persons other than those receiving federally-funded public assistance -- sometimes referred to by responsible officials (and hereinafter) as "categorical assistance." *fn1" If, however, a State decides to participate in Medicaid, it must submit a plan that comports with federal law. If the plan includes aid for people not receiving categorical assistance but qualifying as "medically needy," *fn2" the State must observe the additional federal requirements applicable to this group of recipients. *fn3"

 New York has elected to participate in the Medicaid Program and to extend benefits to the medically needy. *fn4" The basic issues now before the court are whether New York's statutory and regulatory scheme setting income eligibility and retention levels for the medically needy *fn5" are compatible with applicable federal regulations, *fn6" and, if not, whether these federal regulations are themselves inconsistent with the Social Security Act. *fn7"

 The plaintiffs are the wife and child of a disabled 54-year-old man who has been in a nursing home since 1972 and receiving medical assistance since October 17, 1974. As a medically needy "family" of two, *fn8" plaintiffs, under New York's medical assistance law, are allowed to retain a total of $317 per month for their personal maintenance expenses. The monthly standard of need for a family of two receiving categorical assistance, living in the same county and paying the same rent as plaintiffs, is $370 per month. Thus, plaintiffs are allowed to retain $53 less a month for their maintenance than the comparable public assistance standard of need for a family of two.

 The discrepancy results from a difference in computing shelter allowances. For ADC recipients, these allowances are based upon actual rents paid. For the medically needy family, the allowance has nothing to do with the family's actual rent. It is instead based on a figure computed from statewide averages, which may be above or below actual rent. For the class of plaintiffs before us it is, of course, below.

 To spell out these arrangements, which are not evident from the face of the State's Medicaid statute and regulations: Under the ADC provisions, each family of the same size receives a basic allowance of the same amount, plus an allowance for shelter based upon actual rent paid up to the maximum set for shelter in a given family's social service district (county). For example, a family of two eligible for ADC receives a basic monthly allowance of $150; if the family lives in Rockland County and pays $250 a month rent, as plaintiffs do, it is entitled to a monthly shelter allowance of $220, the maximum allowed in Rockland County. Thus, the total monthly public assistance standard of need for a family comparable to plaintiffs' in size, county of residence, and shelter costs, is $370. *fn9"

 To arrive at the medical assistance income levels, defendants average the shelter allowances paid to all ADC families of a given size and divide by the number of those families. The resulting "mean shelter allowance" is then added to the basic allowance to determine the income allowance for a family of that size. *fn10" Thus, some medically needy families are entitled to retain more, others less maintenance income than they would be paid if they were without any income and paid cash benefits under ADC. The crucial variable is shelter cost, more specifically, whether a given family's shelter costs exceed the shelter average.

 Plaintiffs contend that this differential violates federal regulations. They seek to represent a class consisting of all persons in New York receiving medical assistance who are allowed to retain income for maintenance in an amount less than the applicable standard of need under New York's public assistance programs. *fn11"

 Seeking declaratory and injunctive relief, plaintiffs assert rights under 42 U.S.C. § 1983, the Social Security Act, regulations promulgated thereunder, and the supremacy and equal protection clauses of the Constitution. They invoke the court's jurisdiction under 28 U.S.C. §§ 1331(a), and 1343(3) and (4). They seek to maintain the suit as a class action under Fed.R.Civ.P. 23(b) (2). Plaintiffs have moved upon affidavits and a series of stipulations subsequently submitted for (1) a declaration that this is a proper class action and (2) summary judgment on their claim that the maintenance income levels of section 366(2) (a) (8) of the New York Social Services Law and accompanying regulations, *fn12" as applied to the plaintiff class, violate 45 C.F.R. § 248.3(c). Defendants cross-move to dismiss the complaint for lack of jurisdiction. There do not appear to be any material issues of fact. For the reasons stated below, both of plaintiffs' motions are granted.


 Jurisdiction in welfare cases is a recurrent issue, regularly resolved for plaintiffs. *fn13" Since the court concludes that plaintiffs' equal protection claim is not "wholly insubstantial" or "obviously frivolous," as those phrases have been construed by the Supreme Court, *fn14" jurisdiction exists under 28 U.S.C. § 1343(3) and there is no need to explore in detail the alternative jurisdictional bases asserted by plaintiffs. See Schaak v. Schmidt, 344 F. Supp. 99, 102-03 (E.D.Wisc.1971). Suffice it to say that jurisdiction may also exist under 28 U.S.C. § 1331(a), *fn15" but apparently not under the other asserted provisions. *fn16" This court can pass upon plaintiffs' "statutory" claims without deciding whether a three-judge court should be convened to decide the merits of plaintiffs' equal protection claim. *fn17"

 Class Action Motion

 The question of class action treatment can also be dealt with summarily. Plaintiffs seek to represent all medically needy persons in New York who are required by defendants, pursuant to state statute and regulations, to live on a monthly income allowance which is below the level of need for categorial assistance families of the same size, living in the same county, and paying the same rent. This is a classic case for treatment as a class action under Fed.R.Civ.P. 23(b) (2). See, e.g., Almenares v. Wyman, 334 F. Supp. 512, 518-19 (S.D.N.Y.1971), modified 453 F.2d 1075 (2d Cir. 1972); Wilczynski v. Harder, 323 F. Supp. 509, 512 n. 3 (D.Conn.1971); Schaak v. Schmidt, supra at 104. Defendants' argument that plaintiffs have failed to identify sufficiently the members of the class might carry some ...

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