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RIVERS v. SCHWEIKER

August 21, 1981;

Frederick RIVERS, et al., Plaintiffs, and Rita Carlson, et al., Plaintiff-Intervenors,
v.
Richard SCHWEIKER, individually and as Secretary of the United States department of Health and Human Services, et al., Defendants



The opinion of the court was delivered by: DUFFY

Plaintiffs in this class action are recipients of federal Supplemental Security Income (hereinafter "SSI") who, prior to their receipt of SSI, applied for and received "interim assistance" from the New York City Department of Social Services (hereinafter "NYCDSS"). Plaintiffs challenge the administration of the interim assistance program in New York City contending that certain of defendants' policies and practices violate the United States Constitution as well as federal and state statutory and regulatory provisions.

Plaintiffs now seek an order amending the definition of the class and move for summary judgment against the defendants. Defendants cross-move for summary judgment against the plaintiffs.

I.

 The SSI program, established in 1972, provides financial assistance to the aged, blind and disabled. 42 U.S.C. §§ 1381-1383. This program replaced former state-administered cash assistance programs. Many states, however, continued to provide financial assistance to the SSI applicants during the period their SSI applications were pending. In order to reimburse these states or their political subdivisions for the interim benefits paid to SSI applicants, Congress created the Interim Assistance Program (hereinafter "IAP"). 42 U.S.C. § 1383(g) et seq. Under the IAP, local agencies of the state may be reimbursed provided (i) the state enters into a reimbursement agreement with the Secretary of Health and Human Services (hereinafter the "Secretary") and (ii) the Secretary receives written authorizations from the SSI applicants which allows the Secretary to withhold benefits due to an SSI recipient and pay to the state or subdivision thereof an amount sufficient to reimburse it for interim assistance provided to that individual. Id.; 20 C.F.R. §§ 476.525 and 416.1911 et seq.

 New York State (the "State") has entered an agreement with the Secretary whereby the State's 58 local social services districts may request and receive initial SSI benefits as reimbursement for interim assistance paid to SSI applicants. The agreement between the Secretary and the State and the regulations promulgated thereunder require all interim assistance applicants to sign an authorization which permits the Secretary to send the applicant's initial SSI benefit check to the local social services district as reimbursement for the interim assistance paid to them. 18 N.Y.C.R.R. § 370.11. The State's regulations mandate that the authorization be forwarded to the Secretary within five days after it is signed by the applicant, regardless of whether the applicant has been accepted for or is ever provided with interim assistance. 18 N.Y.C.R.R. § 370.11(c).

 After the reimbursement authorization is received by the Secretary and the individual is found eligible for SSI benefits, the Secretary sends that individual's entire initial SSI benefit check, which includes benefits retroactive to the date of eligibility for SSI, to the local services district. Within ten working days after receipt of the SSI benefit check from the Secretary, local services district must send the recipient an accounting of the amount deducted as reimbursement for interim assistance provided and the excess, if any, of the SSI check over the amount of interim assistance paid within ten working days. 42 U.S.C. § 1383(g)(4), 20 C.F.R. § 416.1911, 18 N.Y.C.R.R. § 370.11(c). The SSI applicant must also be notified in writing of his or her right to a hearing to contest the amount of SSI benefits withheld as reimbursement for interim assistance. 20 C.F.R. § 416.1921; 18 N.Y.C.R.R. § 370(d), (e).

 The plaintiffs first claim that the notice used by the local services agency, in this case the NYCDSS, to inform interim assistance recipients of the disposition of their initial SSI benefit checks does not satisfy statutory or Constitutional standards. Plaintiffs contend that the notices sent frequently fail to contain the date the authorization was signed and the period for which the initial SSI benefits were paid. Plaintiffs also claim that between December 9, 1974 and May, 1979, the NYCDSS sent no notices to class members who it determined were not entitled to the return of part of the initial SSI benefit check. Accordingly, plaintiffs move for a permanent injunction against further use by the State and the NYCDSS of notices which do not properly inform plaintiffs of the disposition of their initial SSI benefit check. Plaintiffs also seek an order requiring defendants to send proper retroactive notices to all class members who never received notices and to all class members provided with inadequate notices.

 Plaintiffs' second claim is that the NYCDSS has failed to provide the required accounting and to remit any balance of the initial SSI benefit check within ten working days of receipt of the check as required by federal law. Thus, plaintiffs seek an order requiring the defendants to comply with the ten day statutory time period.

 Finally, plaintiffs contend that the State's policy of requiring all local social services district to request initial SSI benefit checks for all applicants for state interim assistance regardless of whether the applicants are ever actually accepted for or receive such benefits from the NYCDSS is unconstitutional and violative of the Social Security Act. Plaintiffs object particularly to the State and NYCDSS practice of obtaining the initial SSI benefit checks belonging to individuals who never received interim assistance benefits. Plaintiffs ask that this practice be declared invalid and request an order requiring the defendants to obtain initial SSI benefit checks only for those individuals actually accepted under the state interim assistance program.

 II. The Class

 The class in this case is currently composed only of SSI applicants and recipients who actually received interim assistance benefits from the NYCDSS. Thus, individuals who did not receive interim assistance benefits but whose initial SSI checks were nonetheless sent to the NYCDSS are not within the ambit of the existing class. Plaintiffs now request that the class definition be amended to include these latter individuals in the class. After carefully reviewing the proposed amendment to the class definition, I am satisfied that all requirements for class certification under Fed.R.Civ.P. 23 have been met.

 First, it appears that about 432 checks, roughly 9 percent of the initial SSI benefit checks received by the NYCDSS during 1979, were issued to the NYCDSS on behalf of individuals who never received interim assistance. Joinder of all the individuals to whom these checks belonged would be impractical and, thus, the numerosity requirement of Rule 23 is met.

 Second, the questions of law and fact raised by the proposed members of the class are sufficiently common to the existing class to justify class certification. See White v. Mathews, 559 F.2d 852 (2d Cir. 1977). All class members are concerned with the constitutionality of the interim assistance procedures and the delays in the forwarding of SSI funds by the NYCDSS to the recipients.

 Third, the claims of the representative plaintiff-intervenor, Margaret Haines, are typical of the class *fn1" and, thus, the pursuit of her claims will inure to the benefit of the other members of the class. Moreover, the Legal Aid Society of New York City possesses the resources and experience necessary to protect the interests of all the members of the proposed class. Rivers v. Califano, ...


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