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October 1, 1985


The opinion of the court was delivered by: GOETTEL



 On September 9, 1980, this Court remanded these matters to the Secretary of Health, Education, and Welfare ("Secretary") for administrative action in accordance with the Court's March 8, 1980 order in Slavin v. Secretary, 486 F. Supp. 204 (S.D.N.Y 1980). Currently before the Court is the plaintiff's motion for an order rejecting in part and affirming in part the Secretary's decision and supplemental decision regarding each claimant's eligibility for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c (1982), and entitlement to New York State supplemental payments, under the New York State Social Services Law, N.Y. Soc. Serv. Law §§ 207-12 (McKinney 1976 & Supp. 1984). For the following reasons, the plaintiffs' motion is denied.

 I. Background

 Plaintiff Madeline Rosenberg, a forty-two year old resident of Queens County, suffers from profound mental retardation and seizures. Ms. Rosenberg has an I.Q. of approximately twenty and a mental age of two to two and a half years. She is able to undress herself but needs assistance in dressing herself. She also needs assistance in cutting her food and in taking care of her personal hygiene. Ms. Rosenberg is subject to both petite mal and grand mal seizures. Ms. Rosenberg's doctors have recommended that she not take extended rides in vehicles because they believe that the trips might be a factor causing her seizures. Members of a consultant team from the New York State Office of Mental Retardation and Developmental Disabilities ("the New York team") who examined Ms. Rosenberg in August 1980, reported that she could walk slowly without assistance. They also found that while Ms. Rosenberg needed verbal prompting to climb stairs, she demonstrated the skill and potential to be independent.

 In 1974, Ms. Rosenberg began receiving SSI and New York State supplemental payments. Federal SSI payments are uniform throughout the United States. Some states make additional payments to needy persons, and, pursuant to 42 U.S.C. § 1982e, may enter into agreements with the Secretary of the Department of Health and Human Services (the Secretary") to provide for federal administration of those payments. New York provides such optional supplemental payments and has entered into an agreement with the Secretary to administer those payments. The New York statute providing such payments to "aged, blind, and disabled persons," N.Y. Soc. Serv. Law §§ 207-12 (McKinney 1976 & Supp. 1980), defines eligibility in terms of residence. To be eligible, an individual must be "a resident of the state," id. § 209 (1) (a) (iv), and must continue "to reside in the state." Id. § 209 (1)(c).

 From sometime in 1965 until August 1975, Ms. Rosenberg attended and resided at the Fairview School in New York State. When Fairview announced its plans to close, Ms. Rosenberg transferred to the Vineland Training School of the American Institute for Mental Studies at Vineland, New Jersey ("Vineland"). Consequently, in August 1976, the Social Security Administration, notified Ms. Rosenberg that her New York State supplemental payments were being terminated because her attendance at a school in New Jersey made her a New Jersey resident. Therefore, she was not entitled to New York's supplementary benefits. The plaintiff requested and received a hearing before an Administrative Law Judge ("ALJ") in the Social Security Administration to determine the legality of her termination. The ALJ denied her claim. Her appeal of that decision was unsuccessful.

 Like Madeline Rosenberg, plaintiff Bess Levine is a disabled adult who has been denied the New York supplemental payment because she attends a facility outside New York State. Ms. Levine, a thirty-seven year old resident of Kings County, New York, suffers from a rare disease known as familial dysautonomia. Manifestation of her disease include defective lacrimation, insensitivity to pain, vomiting, respiratory infection, and most significantly, dysautonomic episodes or "seizures" in which she becomes violent and abusive. There is conflicting evidence regarding the frequency of Ms. Levine's seizures. Her brother testified that she experiences seizures three to six times a year. Similarly, doctors from the New York team who examined Ms. Levine in August 1980, reported the physical therapist who was part of the New York team and who also examined Ms. Levine's medical history reported that Ms. Levine had experienced only seven episodes from February 1969 until August 1980, with just two occurring since January 1971.

 Ms. Levine is mildly retarded. Her language and mathematical skills range from the fourth to the sixth grade levels. She has, however, earned a general diploma issued by the New York State Department of Education.

 Mr. Levine also has severe kyphoscoliosis, curvature of the spine. Despite this handicap, the physical therapist who has part of the New York Team noted that Ms. Levine's gait pattern is functional. She further reported that Ms. Levine would be able to function motorically in the community even though her motor functioning exhibited deviations from the norm. In fact, Ms. Levine told members of the New York team that she travels alone by Taxi to a local shopping center and shops independently. Ms. Levine is also independent in bathing, dressing, eating, grooming, and toiletting skills.

 Since 1968, when her family became unable to cope with the frequency and severity of her dysautonomic episodes, Ms. Levine has attended Elwyn Institute ("Elwyn") at Elwyn, Pennsylvania. She was placed in Elwyn on the recommendation of the New York State Department of Education. The state provided partial funding through the school year in which she turned twenty-one. In 1974, the Social Security Administration granted her application for SSI but rejected her application for New York State Supplementary payments. Pursuant to a written demand by Ms. Levine, an ALJ held a hearing in February 1977 to consider her application. The ALJ declared her eligible to receive the New York State supplement despite her attendance at a facility outside of New York State.In April 1978, the appeals council reversed the ALJ's decision. Ms. Levine was found ineligible for New York State supplementary payments on the basis of her residence at at institution outside New York

 In September 1979, Ms. Levine and Ms. Rosenberg filed a class action complaint seeking relief on behalf of themselves and all other mentally disabled New York State residents who had been denied either SSI or New York State supplementary payments or both because of their attendance at residential facilities for the mentally disabled located outside of New York State. No motion for class certification was ever filed. On their behalf, Ms. Rosenberg and Ms. Levine sought review of the appeals council decisions denying their claims for New York State supplementary payments.

 In September 1980, this court issued an order repremanding the plaintiff's claims to the ALJ for a decision consistent with this Court's decision in Slavin v. Secretary of Health, Education, and Welfare, 486 F. Supp. 204 (S.D.N.Y 1980). Slavin held that a mentally retarded adult does not lose her New York State residence, and consequent eligibility for social welfare benefits, merely be attending an out-of-state residential facility. Id. at 208. Slavin proceeded to disclose in further detail eligibility for supplementary payments under the Social Services law. That law provides for five categories of supplementary benefits to mentally and physically disabled persons, with different payments levels based on a beneficiary's living arrangements. One such level, known as Congregate Care Level III ("Level III"), provides payments to those "receiving care in a residential facility for the mentally retarded. N.Y. Soc. Serv. Law 209 (2) (McKinney 1976). Slavin held that an individual could attend an appropriate facility outside New York State and remain eligible for this congregate care level of payment so long as new York did not an appropriate facility available to her. Moreover, even if New York had an appropriate facility available to New York resident attending an out-of-state institution, if transfer to the New York facility would create an undue hardship for the claimant, she would be entitled to supplementation at a congregate care level. Id. at 210. However, an individual in an out-of-state facility who did not meet these criteria would be eligible only for the lower, "living alone" rate of payment.

 The ALJ held a de novo hearing for each plaintiff. His findings with respect to plaintiff Rosenberg were equivocal, but he found Ms. Levine eligible for Congregate Care ...

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