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March 14, 1991


The opinion of the court was delivered by: Sifton, District Judge.


This class action is before the Court on (1) plaintiffs' motion for summary judgment to make permanent the preliminary injunction entered by this Court on March 5, 1987, enjoining the denial of Medicaid coverage for prenatal care to financially eligible pregnant undocumented alien women in New York State; (2) plaintiffs' motion for summary declaratory judgment or injunction extending Medicaid eligibility to poor undocumented alien children in New York State; and (3) the federal defendant's cross-motion for summary judgment on the same issues.


Plaintiffs commenced this class action to challenge a 1973 regulation of the Secretary of Health and Human Services (the "Secretary") and a companion New York State regulation both denying Medicaid benefits to aliens except those who are lawfully admitted for permanent residence or permanently residing in the United States under color of law ("PRUCOL"). On July 14, 1986, this Court determined that the regulations were not authorized under the Medicaid statute. Lewis v. Gross, 663 F. Supp. 1164 (E.D.N.Y. 1986). The Court did not reach plaintiffs' other claims challenging the regulations.

Following that decision but before a final judgment was entered, Congress passed the Omnibus Budget Reconciliation Act of 1986 ("OBRA-86"), Pub.L. No. 99-509, reprinted in 10 U.S.Code Cong. & Admin.News (100 Stat.) (Dec. 1986). Section 9406 of OBRA-86 provided the missing statutory authority for imposing restrictions on Medicaid eligibility for aliens. The law stated that "no payment may be made to a State under this section for medical assistance furnished to an alien who is not lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law." 42 U.S.C. § 1396b(v)(1). The federal defendant sought reconsideration of this Court's prior ruling in light of this legislative change.

At the same time, plaintiffs moved for a preliminary injunction on the ground that the unborn children of all alien women in this country, whether PRUCOL or not, were eligible for Medicaid under 42 U.S.C. § 1396d(a)(i) as themselves citizens included within the statutory category of eligible "individuals under the age of 21." The Court found that the plaintiffs had shown irreparable injury and a likelihood of prevailing at trial on their claims and issued a preliminary injunction preventing defendants from denying Medicaid coverage for prenatal care to alien women residing in New York State with a medically verifiable pregnancy if the unborn child would be eligible for Medicaid if born at the time of the application. See Memorandum and Order, March 5, 1987.

Plaintiffs now seek to make that preliminary injunction permanent on statutory and constitutional grounds. They also challenge the Secretary's interpretation of the PRUCOL restrictions on statutory and constitutional grounds.

For the reasons discussed below, the preliminary injunction is now made permanent. Additionally, a hearing is ordered to determine whether all or part of the plaintiff class of undocumented alien children should be considered PRUCOL and, thus, entitled to Medicaid payments. Thus, the first of plaintiffs' motions for summary judgment listed above is granted. The second and third motions listed above are denied.


The basic facts are not disputed, except where indicated.

It is not disputed that a substantial number of alien pregnant women who are not presently residing in this country under color of law will have their babies in the United States. Under federal law and the Constitution, these babies will be citizens of this country. See, e.g., INS v. Rios-Pineda, 471 U.S. 444, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985).

Defendants also do not dispute that from a cost effectiveness perspective prenatal care is far superior to subsequent treatment of preventable birth defects. Congress has recognized this cost effectiveness in expanding Medicaid eligibility for pregnant women. 1986 U.S.Code Cong. & Admin.News 3607, 3688-92.

Defendants also do not dispute the proposition that the social costs of failing to provide prenatal care are substantial. As a result of handicaps related to birth defects, many of these children, now born citizens, will be unable to lead productive lives in this country because of their conditions and will be supported by a variety of other social welfare programs.

Plaintiffs also submit undisputed evidence as to the effects of failing to provide non-emergency medical care to alien children in support of their application for injunctive relief based on the Secretary's alleged denial of Medicaid payments to such children who are, plaintiffs contend, PRUCOL. Where such children do not receive preventive health care, it is undisputed that some will end up with severe medical conditions that could have otherwise been avoided. Where an illness becomes an emergency medical condition such that aid will be provided, even under the Secretary's interpretation of the statute, the government will end up paying the medical costs. Further, some number of citizen children and adults will undoubtedly contract contagious diseases as a result of the failure to provide preventive medical care to alien children, imposing unquantifiable additional social and economic costs on the country.

A dispute exists as to INS' policy towards alien children in New York. Defendants contest plaintiffs' contention that INS never deports alien children in New York. While the evidence establishes that INS does not formally deport alien children, the Secretary contends that INS uses other means to enforce their departure from this country and that, as a result, they cannot be considered PRUCOL.

Federal Rule of Civil Procedure 56(c) provides that a court shall grant summary judgment if it determines that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A party moving for summary judgment has the burden of proving that no genuine issue of material fact exists. Rule 56(e) provides that a party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party opposing summary judgment may request that the Court search the record and grant it summary judgment if it establishes that there are no genuine issues of material fact raised by plaintiff.

In this case, no genuine issues of material fact exist with respect to plaintiffs' motion concerning pregnant, non-PRUCOL aliens. However, because there are genuine issues of fact surrounding the motion for summary judgment regarding undocumented alien children, both plaintiffs' and defendants' motions for summary judgment are denied pending a hearing to resolve these factual disputes.



On March 5, 1987, this Court entered a preliminary injunction enjoining defendants from "denying Medicaid coverage for prenatal care to alien women residing in New York State with a medically verifiable pregnancy if her unborn child would be eligible for Medicaid if born at the time of application." Plaintiffs now seek to make that preliminary injunctive relief permanent. That relief is granted.


Plaintiffs' principal contention is that they or their unborn children are eligible for medicaid under 42 U.S.C. § 1396d(a)(i) which grants aid to citizen "individuals under the age of 21." Plaintiffs claim that their unborn fetuses should be included in this category.

Administrative Interpretation

In this Court's March 5, 1987 Memorandum and Order granting a preliminary injunction, the Court recognized that both the federal and state defendants shared "a longstanding administrative interpretation" of the Medicaid statute that the unborn were to be classified as "individuals under the age of 21" for Medicaid eligibility purposes. See 42 U.S.C. § 1396d(a)(i). Further, the Court noted that defendants have in the past interpreted the Medicaid statute to provide prenatal care for pregnant women, themselves ineligible for Medicaid, on behalf of the unborn if the unborn would be Medicaid eligible if born at the time of the Medicaid application.

The Court found that the Secretary's longstanding interpretation extending coverage to the unborn was consistent with the purposes and policies of the Medicaid program, because the "undisputed medical evidence shows the overwhelming importance of proper prenatal care to the future health of the infant." See Memorandum and Order, March 5, 1987, at 27.

Recently, however, the federal defendant has repudiated this interpretation of the medicaid laws and decided that the unborn are not included within the category of "individuals under 21." The federal defendant urges that the Court's previous decision, based on the federal defendant's earlier interpretation of the statute, now be reversed in the light of the Secretary's new understanding of the statute.

Deference to Agency Interpretations

The first question is how much deference is due from this Court to the more recent interpretation of the agency.

The federal defendant contends that the principles of Chevron, USA v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), control this analysis. The Supreme Court has stated:

  "[I]f the statute is silent or ambiguous with respect
  to the specific issue, the question for the court is
  whether the agency's answer is based on a permissible
  construction of the statute."

Sullivan v. Everhart, 494 U.S. 83, 110 S.Ct. 960, 964, 108 L.Ed.2d 72 (1990) (citations omitted).

However, in this case, the high level of deference ordered by Chevron is inappropriate. The policy of excluding unborn children of non-PRUCOL women from the Medicaid program is interpretative, not legislative. See Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977); Doe v. Reivitz, 830 F.2d 1441, 1446 (7th Cir. 1987). The agency has not engaged in notice and comment rule making but has established its new policy through a unilaterally issued "State plan pre-print" and Regional Office Manual. Therefore, this Court need not find the agency's interpretation of the Medicaid statute controlling. St. Mary's Hospital v. Blue Cross & Blue Shield Ass'n, 788 F.2d 888, 890 (2d Cir. 1986).

Still, agency interpretations of congressional enactments are entitled to weight. St. Mary's Hospital, supra. Consistency with prior and subsequent pronouncements is a factor to be considered in determining how much deference to accord to an agency's interpretation of a statute. The agency in this case has renounced a longstanding interpretation that the unborn are covered under Medicaid as "individuals under 21." This shift in position warrants less deference to the agency's views than would otherwise be appropriate. "An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is `entitled to considerably less deference' than a consistently held agency view." INS v. Cardoza-Fonseca, 480 U.S. 421, 447 n. 30, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (1981)).

Status of the Unborn

Because the Court is far from bound by the agency interpretation of the medicaid statute, the statute itself must again be examined. The statute does not directly address the issue of coverage for the unborn children of alien women not themselves eligible for Medicaid. The absence of specific provisions for such ...

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