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December 9, 1992

ANN MARIE COLSON, on behalf of her infant daughter, LAURA COLSON; DARRYL BATTAGLIA, VALERIE WHITE, individually and on behalf of all others similarly situated, Plaintiffs,
EUGENE SILLMAN, as Medical Director of Erie County; DAVID BOGDAN, as Supervisor of Erie County's Physically Handicapped Children's Program; DONALD B. THOMAS, as Commissioner of the Erie County Department of Health; FE A. CARDONA, as Director of the Special Children Services, Bureau of Child Health, New York State Department of Health; and DAVID AXLEROD, as Commissioner of the New York State Department of Health, Defendants.


The opinion of the court was delivered by: RICHARD J. ARCARA


 Plaintiffs brought this action seeking declaratory, injunctive and monetary relief against defendants for alleged procedural and substantive deficiencies in the administration of the Erie County Physically Handicapped Childrens' Program ("PHCP"). The alleged deficiencies concern defendants' failure to provide program applicants with timely written notice of the outcome of their application and the lack of an administrative appeal procedure, which allegedly violate plaintiffs' due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1343(3) and (4) and 42 U.S.C. § 1983.

 Plaintiffs moved for summary judgment pursuant to Fed. R. Civ. P. 56. The Court ordered the parties to brief the issue of whether applicants for a government benefits program have an "entitlement" implicating due process rights under the United States Constitution. After reviewing the papers and hearing oral argument from counsel, the Court grants plaintiffs partial summary judgment for the reasons stated herein.


 This lawsuit arises out of the manner in which Erie County and New York State manage the PHCP. The PHCP is a program, operated by the Erie County Department of Health pursuant to N.Y. Pub. Health Law § 2852 (McKinney, Supp. 1992), which provides medical services for children who suffer from physical disabilities. In order to qualify for aid under the PHCP, specific criteria must be satisfied as to age, family income, diagnosis and exhaustion of other potential sources of payment. Additionally, the requested services must be medically necessary.

 Once the PHCP determines that a child is eligible for coverage under the program, a request for specific services and medical equipment can be filed. Accompanying the request can be supporting documents from, among others, the child's physician or therapist. The Medical Director of the PHCP then decides whether to grant or deny the request based in part on whether the child's diagnosis and requested medical treatment are listed by the New York State Department of Health ("DOH") as eligible services. Where the requested medical services are not listed or there is ambiguity concerning the appropriateness of the requested relief, the County Medical Director can seek the assistance of the DOH in determining whether to grant the request. *fn1" The County Medical Director may decide to deny PHCP funding if he or she believes, in his or her professional opinion, that the medical treatment sought will not assist the rehabilitative progress of the child. In the present case, all parties agree that plaintiffs met all of the threshold requirements for PHCP funding at the inception of the lawsuit. *fn2"

 Laura Colson

 Plaintiff Laura Colson alleges that she suffers from cerebral palsy and a severe degenerative disease of the brain, which has resulted in profound mental retardation. *fn3" Colson's condition has rendered her completely disabled and totally dependent upon her mother as she has no "use of her legs, arms or hands. She cannot talk. She can barely hold her head up." Item No. 33, P 5. She often has grand mal seizures in which she becomes uncontrollable. Colson's medical condition requires frequent visits to doctors and to the Center for the Handicapped in Cheektowaga, New York for physical, occupational and language therapy. "On many occasions she has experienced grand mal seizures while being transported in her mother's automobile. Such uncontrollable and unrestrained violent thrashing about while laying down in the back seat of her mother's automobile is extremely dangerous." Item No. 35, p. 4.

 In May 1985, Dowd Service and Sales submitted an application on Colson's behalf requesting that the PHCP provide Laura with a Britax Car Seat with Stroller Base because her condition precluded her from safely traveling in automobiles equipped with conventional car seats. "Accompanying this request was information about the car seat and stroller base, including price, and a letter signed by a physician and physical therapist, explaining Laura's need for these items." Item No. 5, P 24. The Britax car seat, when attached to the stroller base, also acts as a stroller that would make transporting Laura more practicable since she is too heavy to be carried by her mother.

 The PHCP denied Colson's request for the car seat in August 1985. Colson's mother contacted Eugene Sillman, Medical Director of Erie County and requested a written confirmation of the denial of the request. Sillman refused to provide written confirmation. Mrs. Colson then contacted State Senator William Stachowski. Senator Stachowski wrote to Sillman on Colson's behalf, and Sillman responded with a letter in which he acknowledged that the PHCP had denied Colson's request. The letter stated that Colson may appeal the matter by requesting "a Fair Hearing through the usual New York State process." Item No. 35, p. 5.

 Valerie White

 Plaintiff Valerie White is wheelchair bound because of spastic cerebral palsy. PHCP paid for an electrically powered stairglide in the front of her home thereby allowing her access to and from her home. *fn6" White asserts that she subsequently requested that a protective cover be provided for the stairglide so that it could be used in inclement weather, and for funds so that certain repairs could be made to the stairglide. Without use of the stairglide, White was unable to attend school or receive medical care outside her home. Her frequent absence from school due to the disrepair of the stairglide disrupted her academic program as well as her physical and occupational therapy. Additionally, White was unable to participate in "Wheels and Sticks" a social and recreational organization for physically disabled children. White became very depressed at being cooped up at home away from her school, therapy and friends. On occasion, White "talked of suicide." Item No. 35, p. 8-9.

 White's attorney wrote the PHCP on July 12, 1985 and requested that it make repairs to the stairglide and provide a protective cover. The repairs, plaintiff alleges, were made necessary by the failure of the PHCP to provide the protective cover when the stairglide was initially installed given the harsh winters that often frequent Western New York. Sillman did not respond to the letter. A second letter was sent to Sillman on October 4, 1985. Sillman responded on October 8, 1985 by stating that "on August 1, 1985, this office authorized payment for repairs to the items in need thereof." Id. at 9. Sillman suggested that the delay in the repairs was due to "Victor Medical." No mention was made of the protective cover.

 White's mother contacted "Victor Medical" on October 18, 1985 and was informed that parts needed for the repair were on order. When she contacted them again on November 20, 1985, she was told that the PHCP had refused to authorize payment for the protective cover for the stairglide. At no time did White receive any written notice concerning her requests. "Furthermore, at no time have any of the defendants provided Mrs. White with any notice of any right to challenge or contest PHCP determinations." *fn7" Id. at 10.

 Darryl Battaglia

 The shower in Battaglia's home is on the second floor, and due to his size and weight, 6'1" and 165 pounds, there is no way to transport him to the second floor. At one point, Battaglia's sister "tried to transport him to the second floor, but half way up [she] lost control of him, causing him to fall down the stairs." Id.

 Battaglia requested that the PHCP pay for a Braun roll-in shower that was prescribed for him by his physician. The PHCP approved the cost of the shower, but Battaglia objected to the choice of contractors because the chosen contractor had previously performed work at his home which he was unsatisfied with. Additionally, Battaglia contends that the contractor lacked the necessary permits to do the requested work. Battaglia's counsel wrote the PHCP on May 8, 1985 requesting installation of the shower in accordance with all legal requirements. Counsel received a reply on May 30, 1985 stating that the May 8 letter was forwarded to the Erie County Attorney's office. Counsel wrote again on July 2, 1985 asking that the matter be expedited. He wrote a third time on October 7, 1985. There was no response to these last two letters, and the shower was never installed. *fn8" Id. at 12-14.


 Plaintiffs assert that they each have a property right in the requested medical services and that the failure of the PHCP to provide them with the services without a hearing or other means of appeal deprives them of their due process rights under the Fifth and Fourteenth Amendments. Defendants contend that plaintiffs do not have an entitlement in the applied for medical services and consequently, there is no due process violation.

 Standard on Summary Judgment

 The Second Circuit, in Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991), articulated the standard for summary judgment under Fed. R. Civ. P. 56:

In assessing the record, all ambiguities and reasonable inferences are viewed in a light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam). Summary judgment is appropriately granted when there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper. See id. at 250-51. Once the movant has established a prima facie case demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict ...

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