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December 28, 1978

Itha David BECKER, Hannah M. Kneafsey, on behalf of themselves and all other persons similarly situated, Plaintiffs,
Barbara BLUM, as Commissioner of the New York State Department of Social Services, and Muriel O'Connor, as Commissioner of the Sullivan County Department of Social Services, Defendants

The opinion of the court was delivered by: BRODERICK



 In this action plaintiffs Itha David Becker and Hannah M. Kneafsey, Medicaid beneficiaries, on behalf of themselves and all persons similarly situated, have challenged the enactment and implementation of New York Social Services Law § 367-a(6) ("Section 367-a(6)"). This court has jurisdiction pursuant to 28 U.S.C. § 1343(3) and principles of pendent jurisdiction.

 The attack on Section 367-a(6) in plaintiff's complaint is tripartite. First, it is alleged that the means by which the department implemented Section 367-a(6) was faulty in that recipients were not provided with adequate and timely notice as required by the Due Process Clause of the Fourteenth Amendment and pertinent federal and state regulations. Second, the statute itself is attacked as violating 42 U.S.C. § 1396a(a)(10)(B), and the Equal Protection Clause of the Fourteenth Amendment. Third, it is asserted that defendants' failure to consult with the Medical Advisory Committee violates 42 U.S.C. § 1396a(a)(22)(D), federal regulations issued pursuant to that section and New York Social Services Law § 365-c.

 On June 23, 1977, I issued a preliminary injunction herein barring defendants from implementing Section 367-a(6). *fn1"

 On July 15, 1977, I issued an order certifying as a plaintiff class all persons receiving medical assistance benefits pursuant to New York Social Services Law §§ 363 Et seq., who have been, are, or will be required to pay a proportionate cost of their drugs and medical supplies as required by Section 367-a(6) and implementing regulations and directives. I certified as a sub-class all persons in the above class who receive medical assistance benefits which are, in part, federally funded.

 Plaintiffs now move for partial summary judgment, with respect to faulty implementation of Section 367-a(6). For the reasons hereafter stated, the motion is granted.


 "(Summary judgment) shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. "(O)n a motion for summary judgment the court cannot try issues of fact; it can only determine whether there are issues to be tried. Moreover, . . . it must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought." Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). "However, it is equally true that summary judgment should not be denied where the only issues raised are frivolous or immaterial ones which would simply serve to provide an exercise in futility or a purposeless trial for the district court, particularly where no jury has been demanded." United States v. Matheson, 532 F.2d 809, 813 (2d Cir.), Cert. denied, 429 U.S. 823, 97 S. Ct. 75, 50 L. Ed. 2d 85 (1976).

 There are no disputed issues of material facts on the motion before me. Thus summary judgment is appropriate.


 Section 367-a(6) provides:

6. Any inconsistent provision of law notwithstanding, rates of payment for claims for medical and prosthetic appliances, supplies and equipment, dental care and eyeglasses and each separate claim for drugs, furnished to persons twenty-one years of age or over but under sixty-two years of age, shall be reduced in accordance with department regulations by an amount not to exceed the maximum amount authorized by federal law and regulations, except that in the case of each separate claim for drugs such maximum amount shall not exceed fifty cents, as a co-payment amount, which co-payment amount the person providing such care, services, supplies and equipment, or drugs may charge the recipient, provided, however, that no such reduction may be made for any such care, services, supplies and equipment, or drugs provided to any recipient receiving care on an in-patient basis in a hospital as defined in article twenty-eight of the public health law; provided further that the exclusion of individuals age sixty-two or over from the co-payment provision of this subdivision shall apply to the extent consistent with federal law and regulations.

 In short, with certain exceptions Section 367-a(6) mandates that recipients of medical assistance payments co-pay a portion of the cost of medical appliances and prescription drugs. The exemption for those over 61 years of age has been deleted by action of the ...

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