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March 29, 1976

Maria PEREZ et al., Individually and on behalf of all others similarly situated, Plaintiffs,
Abe LAVINE, as Commissioner of the New York State Department of Social Services, and James R. Dumpson, as Commissioner of the New York City Department of Social Services, Defendants

Tenney, District Judge.

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

Plaintiffs brought this action to trial before the Court without a jury. The case presents yet another challenge to the beleaguered New York City Administration of Welfare program. Jurisdiction was predicated upon 28 U.S.C. §§ 1343(3) and (4). *fn1" A class was certified at that time under Fed.R.Civ.P. 23(b)(2) to include all applicants and recipients of public assistance at Bronx welfare centers. Subsequently, this Court enlarged the plaintiff class which now encompasses all recipients of and applicants for public assistance who live in New York City and are within the geographical jurisdiction of the forty-four Income Maintenance welfare centers in New York City. *fn2" Operating under the authority of the New York State Department of Social Services, these public assistance programs are administered locally by the New York City Department of Social Services. *fn3" Defendants named in the complaint include the Commissioner of the New York State Department of Social Services, the Commissioner of the New York City Department of Social Services, and the Administrator of the Human Resources Administration.

 Plaintiffs contend that the policies and practices of the New York Department of Social Services ("DSS") and the Human Resources Administration ("HRA") both delay and deprive members of the class (both applicants and recipients) of the benefits of various public assistance programs as provided for in federal statutes and their implementing regulations. In pertinent part, these laws and regulations are as follows:

Aid to Families with Dependent Children (AFDC):
"42 U.S.C. § 602(a) A State plan for aid and services to needy families with children must
. . .
(10) provide, effective July 1, 1951, that all individuals wishing to make application for aid to families with dependent children shall have the opportunity to do so, and that aid to families with dependent children shall . . . be furnished with reasonable promptness to all eligible individuals."
"45 C.F.R. § 206.10 Application, determination of eligibility and furnishing of assistance.
(a) State plan requirements. A State plan . . . shall provide that:
(1) Each individual wishing to do so shall have the opportunity to apply for assistance under the plan without delay.
. . .
(3) A decision shall be made promptly on applications, pursuant to reasonable State-established time standards . . . ."
"45 C.F.R. § 233.120 Emergency assistance to needy families with children.
(a) Requirements for State Plans. A State plan . . . providing for emergency assistance to needy families with children must:
. . .
(5) Provide that emergency assistance will be given forthwith." *fn4"

 I. Composition of Plaintiff Class -- "Applicants" Defined

 At trial, plaintiffs' counsel asserted that the class of persons represented comprised "persons who are seeking to apply for assistance or persons who, while on the rolls, are seeking to apply for additional benefits." (Transcript at 418). Characterization of this latter group of persons as either "applicants" or "recipients" is important because it determines the time allowed for agency acceptance of the requests for additional aid. If the individual who is already enrolled in a welfare program and seeks an increment or change in benefits is deemed to be an "applicant", his request for assistance must be heard "without delay" under the standard imposed by 45 C.F.R. § 206.10(a)(1). On the contrary, if he is a "recipient", his request is treated as an "undercare" request which must be considered with "reasonable promptness" under 42 U.S.C. § 602(a)(10) and 45 C.F.R. § 206.10(a)(3). Basically, the issue is whether an individual's entitlement to an initial determination of eligibility is more pressing than his right to have his needs and benefits reassessed when his circumstances change.

 Defendants' position is that once someone is enrolled on welfare, he becomes a recipient and retains that status for all further action in his case. He has completed the formal application process, has submitted the necessary documents and forms for verification, and has been found eligible for public assistance. With all the preliminary work in his case concluded, this individual is in a considerably different posture from the person who enters the Income Maintenance center for the first time to ask for public assistance. Greater attention is needed to review the latter person's request which must be accompanied by a multitude of papers. And because he is receiving no public aid at that time, he is in a more urgent situation than someone already receiving some assistance.

 It seems clear, then, that the initial determination of eligibility involves a distinct and more compelling interest than a request for modification in aid. By consolidating as "applicants" both persons who are "seeking to apply either initially or for additional benefits," *fn5" plaintiffs attempt to supplant a "reasonably prompt" standard of consideration with a measure of "without delay." At trial, plaintiffs used the illustration of an AFDC recipient who becomes pregnant and seeks additional benefits to accommodate the new child. The woman's right to increased benefits is undisputed, but should her claim get the same urgent attention as that of someone not receiving any aid who applies in the first instance?

 The definitional sections of the federal regulations do not directly address the issue of categorizing the request for additional aid, but they do provide some elucidation. Title 45, Part 206 of the Code of Federal Regulations is entitled "Application, Determination of Eligibility and Furnishing of Assistance -- Public Assistance Programs" and seems to refer to newly submitted requests by persons not enrolled on welfare. Subsection (b) provides the following:

" Definitions. For purposes of this section:
(1) 'Applicant' is a person who has, directly, or through his authorized representative . . . made application for public assistance from the agency administering the program, and whose application has not been terminated.
(2) 'Application' is the action by which an individual indicates in writing to the agency administering public assistance his desire to receive assistance . . . . An application is distinguished from an inquiry, which is simply a request for information about eligibility requirements for public assistance.
Such inquiry may be followed by an application."

 In setting forth the procedure for submission and acceptance of applications, subsection (a) states:

" State plan requirements. . . .
(1) Each individual wishing to do so shall have the opportunity to apply for assistance under the plan without delay. Under this requirement:
(i) Each individual may apply under whichever of the State plans he chooses;
(ii) The agency shall require a written application signed under penalty of perjury, on a form prescribed by the State agency . . . ."

 Furthermore, language in certain sections indicates that the regulations in fact do contemplate a distinction in status between the initial applicant and the recipient who is already certified as eligible. *fn6" An "applicant" is one who must submit an official eleven-page application form. An individual is afforded the opportunity to become an applicant when he obtains this form and thus is able to initiate the procedure for ascertainment of eligibility. After his application interview, at which time the form is regularly filed, an applicant has done all he can to apply for public assistance. Once eligibility is found, he is entitled to benefits consonant with his needs. As his needs change, he may request a change in benefits without submitting all the same forms again. Acquisition of the application form, then, is the first step in the application process.

 Because the interest of and procedures for a new applicant may be distinguished from those concerning a recipient seeking additional aid, and because the regulations appear to acknowledge this status distinction, the Court concludes that it is new applicants whose requests were intended to be governed by the standard of "without delay" in 45 C.F.R. § 206.10(a)(1). *fn7"

 II. Categories of Assistance in Issue

 The Court has entertained motions to dismiss the claims regarding medicaid and food stamp benefits, and for the reasons set forth below, grants these motions. The statutes governing medical assistance (42 U.S.C. § 1396) and food stamp distribution (7 U.S.C. § 2011) refer to "the opportunity to obtain . . . ." This language is substantially similar to that employed in the statute governing AFDC benefits (42 U.S.C. § 602). Apparently relying on this similarity, and on 45 C.F.R. § 206.10(a)(1)(iv) which directs that an individual found eligible for financial assistance becomes automatically eligible for medical assistance "without a separate application," plaintiffs submitted no independent evidence in support of those claims at trial.

 It is clear, however, that one may directly apply for medical aid without first applying for a category of public assistance. Like the AFDC program, medicaid operates with grants authorized by the United States Department of Health, Education and Welfare, and is administered locally by the Office of Community Services. Although persons eligible for AFDC are automatically eligible for medicaid, persons who do not qualify for welfare assistance may still qualify for medicaid. See 45 C.F.R. § 206.10(a)(1)(iv)(c). The food stamp program, on the other hand, operates under the aegis of the Department of Agriculture. See 7 U.S.C. §§ 2011 et seq. Food stamps are not considered "welfare" benefits, and may be obtained without applying for welfare.

 There are separate and less restrictive qualifications for food stamps than for financial assistance. In addition, applications for medical services and food stamps need not be submitted at an Income Maintenance center, where the applications for direct financial assistance programs are returnable. The interested individual is thus able to bypass the center entirely in applying for either of these two categories of federal aid.

 Therefore, because the application procedure varies for the different categories of aid, and no independent evidence was introduced to support the claims of violations of these programs, the Court dismisses those portions of the complaint alleging violations of federal food stamps and medical assistance programs.

 III. Alleged Violations of the Statutory Scheme

 The alleged violations of the federal public assistance scheme may be summarized as follows:

 (1) Plaintiffs contend that the DSS practice of requiring an informal "pre-screening" of interested individuals by personnel at the Income Maintenance center (specifically, the " A Receptionist") for an initial assessment of "presumptive eligibility" constitutes a denial of the statutory opportunity to apply for public assistance. Under the current procedure, the " A Receptionist" is instructed to distribute application forms and concomitant instructions only to those persons who appear to be eligible on the basis of the informal oral interview. Those who do not appear to be eligible must specifically request an application for public assistance before the same will be provided. Plaintiffs claim that ...

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