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BIZJAK v. BLUM

June 2, 1980

Barbara BIZJAK, on behalf of herself and her three minor dependent children, and all others similarly situated, Plaintiffs,
v.
Barbara BLUM, Individually and in her official capacity as Commissioner, New York State Department of Social Services, and Michael Nassar, Individually and in his official capacity as Commissioner, Oneida County Department of Social Services, Defendants.



The opinion of the court was delivered by: MCCURN

MEMORANDUM DECISION AND ORDER

Plaintiff Barbara Bizjak has commenced this action for declaratory and injunctive relief under 42 U.S.C. § 1983, on behalf of herself, her three minor children and all others similarly situated. The action involves a challenge to certain regulations promulgated by defendant Blum and certain policies and practices of defendant Nassar with respect to access to case records by public assistance and medicaid recipients which are alleged to be in violation of the Social Security Act and the Fourteenth Amendment to the United States Constitution.

 The action is presently before the Court on plaintiff's motion for class certification and for a preliminary injunction directing the defendants to (a) inform all Aid to Families with Dependent Children (AFDC) and Medical Assistance (MA) "fair hearing" appellants of their right to complete access to the entire contents of their case records at a reasonable time prior to and during their "fair hearing"; and (b) directing defendants to afford all AFDC and MA "fair hearing" appellants the opportunity to examine the entire contents of their case files at a reasonable time in advance of and during their "fair hearings".

 Plaintiff is a thirty-eight year old mother of three minor dependent children. She and her children have been recipients of public assistance in the form of a monthly AFDC grant, food stamps and MA coverage since January 3, 1980. On or about March 25, 1980, plaintiff was informed by the Oneida County Department of Social Services, of which defendant Nassar is the Commissioner, that her grant of assistance would be terminated effective April 30, 1980. Plaintiff requested a "fair hearing" prior to the effective date of discontinuance and a hearing was scheduled for April 21, 1980.

 According to plaintiff's complaint, she was at no time informed of her right of access to her case file to enable her to prepare for the hearing. On the scheduled date of her hearing plaintiff was granted a general adjournment for reasons which were apparently unrelated to this action. On May 7, 1980, plaintiff, through her attorney, requested defendant Nassar to provide her with unrestricted access to her case file. She was denied any access whatsoever. *fn1"

 In pursuing a policy of what appears to be one of severely restricted access to case records or a complete denial thereof, defendant Nassar is apparently relying upon regulations promulgated by defendant Blum and located at 18 N.Y.C.R.R. §§ 357.3(c)(1), 358.12(b) *fn2" , as well as what plaintiff alleges to be a long-standing local agency policy and practice. The aforementioned regulations continue to be in effect despite the fact that the New York Court of Appeals in Dunbar v. Toia, 45 N.Y.2d 764, 408 N.Y.S.2d 495, 380 N.E.2d 321 (1978), found the restrictions to case-record access contained in those regulations to be contrary to the much broader federal access requirement.

 Plaintiff, in commencing this action, contends that the regulations at 18 N.Y.C.R.R. §§ 357.3(c)(1), 358.12(b) and 358.16(d) as well as the policies and practices of the defendants restricting access to case records in connection with "fair hearings" are illegal and in contravention of the Social Security Act and the regulations promulgated thereunder, the Supremacy Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and asks the Court to make a declaration to that effect. Plaintiff also seeks a declaration that the regulations are null and void insofar as they purport to limit the rights contained at 45 C.F.R. § 205.10(a) (13)(i) and that the defendants' policy of not informing "fair hearing" appellants of their right to case-record access violates 45 C.F.R. § 205.10(a) (4)(B) and the Fourteenth Amendment.

 The Court has jurisdiction in this 42 U.S.C. § 1983 action under 28 U.S.C. § 1343(3) and (4). The due process claim raised by the plaintiff is neither frivolous nor insubstantial (Hagans v. Lavine, 415 U.S. 528, 537-38, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974)), and indeed, courts have on numerous occasions found that cases involving substantially the same issue as this case presented an adequate basis for jurisdiction. See Page v. Preisser, 585 F.2d 336 (8th Cir. 1978); Areizaga v. Quern, 442 F. Supp. 168 (N.D.Ill.1977), aff'd. 590 F.2d 226 (7th Cir. 1978); Feld v. Berger, 424 F. Supp. 1356 (S.D.N.Y.1976).

 Class Certification

 Plaintiff seeks to represent a class composed of all persons within New York State who presently have or will have in the future a "fair hearing" request pending on issues relating to the operation of either the AFDC or MA programs.

 In order for a class to be certified under Rule 23 of the Fed.R.Civ.P., the moving party must demonstrate that a class which is capable of legal definition does in fact exist (Dolgow v. Anderson, 43 F.R.D. 472, 491 (E.D.N.Y.1968), rev'd. on other grounds 438 F.2d 825 (2d Cir. 1971)), and that the proposed class representative is a member of that class. Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975). In addition, the movant must show that the four criteria of Rule 23(a) have been met and that the action falls within one of the three class action categories set forth in section (b) of the Rule.

 The Court is satisfied that all of the prerequisites for class certification have been satisfied in this case and that certification is appropriate. The proposed class is easily definable through the records of the State and local social services departments and the plaintiff, as a recipient of public assistance in the form of AFDC and MA presently seeking "fair hearing" review of a determination made with regard to her continued receipt of those benefits, is clearly a member of that class. *fn3"

 The numerosity requirement of Rule 23(a)(1) has been satisfied. An affidavit submitted by counsel for plaintiff states that he has been informed by the Director of the Fair Hearings Unit for the New York State Department of Social Services that in 1978 the Department received 95,000 requests for "fair hearings" and in 1979 received 151,000 requests. Of these requests, the Director estimated that 50% come from AFDC recipients and 15% from MA recipients. *fn4"

 Likewise, the requirements of Rule 23(a)(2) and (3) have been met. Each member of the class would have the identical claims of improper failure by defendants to advise a recipient of the right to pre-hearing case-record access and the impermissible refusal to grant such access. The common legal issues are whether defendants' policies and practice in that regard are illegal as in violation of the Social Security Act and unconstitutional through the ...


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