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,
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
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.
MEDICAID ELIGIBILITY FOR PREGNANT, NON-PRUCOL WOMEN
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
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
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)).
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 ...