a. Defendants fail to provide timely aid continuing.
The experiences of the named Plaintiffs and other class members discussed above suggest a pattern of failure in providing timely benefits. See supra at 5-9. Various community advocates recounted similar experiences. See Cohan Decl. Ex. B. at Evans Aff.; id. at Krueger Aff.; id. at Rosenfeld Aff.; id. at Harding Aff. More important, however, are the records and statements of State and City agencies that indicate an awareness of problems meeting aid continuing mandates.
State Defendant has acknowledged that it cannot yet guarantee timely provision of aid continuing to anyone requesting a hearing by mail. See Lacivita Dep. at 117-18, 141-43. This in light of recent figures which indicate that at least a third of the requests for fair hearings emanating from New York City are received by mail. See Blum Supplemental Reply Decl. Ex. B (NYS-DSS, Bureau of Fair Hearings, Office Workload Reports, Items 1A & 8); Lacivita Aff. Exs. 1 (same), & 3 (explanatory memorandum) (34% of all new requests emanating from New York City were received by mail from June 1, 1994 through October 31, 1994). State Defendant acknowledged that it often took three to four weeks, sometimes more, for the information contained in a fair hearing form to be entered into the State computer, amounting to delays ranging from 4,500 to 7,500 requests. See Lacivita Dep. at 118. State Defendant attributed this backlog to a shortage of staff. See Lacivita at 120.
State Defendant also acknowledged that State agency is "unable to provide enough staff to answer the phones to do the job in a way that provides adequate service, and that the only way to improve that at this point in time is with more staff." See Lacivita Dep. at 212. At least one fourth of all new requests from New York City are received by phone. See Blum Supplemental Reply Decl. Ex. B (NYS-DSS, Bureau of Fair Hearings, Office Workload Reports, Items 1A & 8); Lacivita Aff. Exs. 1 (same), & 3 (explanatory memorandum) (25% of all new requests emanating from New York City were received by mail from June 1, 1994 through October 31, 1994).
The Court notes that State agency has attempted to address staff shortages by use of overtime and improved information systems. See Cohan Decl. Ex. E, NYS-DSS Quarterly Overtime Plan, Oct. 5, 1993; Lacivita Aff. (Aug. 16, 1994); Tr. at 39 (Nov. 16, 1994). While there is evidence of recent improvements, State agency continues to experience regular delays in processing requests. See Tr. at 40. These delays contribute to delays in City agency's provision of timely aid continuing benefits.
In addition, State agency fails to supervise City agency's provision of aid continuing benefits, thereby contributing to undiscovered delays. See Carberry Dep. at 71 (no monitoring by state, city or federal government with respect to timely provision of aid to continue); Blaustein Dep. at 271, 275, 279, 281-83 (no audits, records or monitoring of time it takes to comply with aid continuing directives).
For their part, City Defendants admit to failing to provide services within mandated time frames in at least 10% of all cases. See Blaustein at 391-92. However City Defendants provide no records or monitoring methods to assure the Court that this failure rate is not significantly higher.
There are apparently no records of the total number of cases in which initial aid continuing directives are issued each month. Agency records for the period June 1, 1994 through October 31, 1994, however, indicate that approximately 3100 initial hearings are scheduled each month in aid continuing AFDC, Food Stamps, and Home Relief cases from New York City. See Blum Supplemental Reply Decl. Ex. B (NYS-DSS, Bureau of Fair Hearings, Office Workload Reports, Item 1A); Lacivita Aff. Exs. 2 (same), & 3 (explanatory memorandum). Alternatively, there are approximately 6800 new requests for hearings each month in ADFC, Home Relief and Food Stamps cases, see Blum Supplemental Reply Decl. Ex. B (NYS-DSS, Bureau of Fair Hearings, Office Workload Reports, June-Sept. 1994, Item 1A); Lacivita Aff. Exs. 2 (Oct. 1994), & 3 (explanatory memorandum), of which approximately 40% or more than 2700 are likely to be determined eligible for aid continuing.
In approximately 320 cases per month "redirect" orders or "multiple" redirect orders are issued. See Blum Supplemental Reply Decl. Ex. B (NYS-DSS, Bureau of Fair Hearings, Office Workload Reports, Items 8 & 9); Lacivita Aff. Exs. 2 (same), & 3 (explanatory memorandum). Redirect orders are issued after an initial order is not implemented and a subsequent complaint is received. Multiple redirects are any orders issued after the first two upon continued failure to provide aid continuing and continued complaints. See Lacivita Dep. at 193-97. This number of redirects and multiples suggests that in at least 10-12% of all cases City agency fails to provide aid continuing benefits upon issuance of an initial aid continuing directive.
Moreover, this estimate does not include cases where only one directive was issued but benefits were not provided within mandated time frames or cases in which indigent claimants failed to file repetitive complaints.
Three of the above named Plaintiffs and twelve of the thirteen additionally named class members, for example, would likely not be represented in the 10% figure because they filed only one request for a fair hearing or received only one notice of aid to continue despite not receiving benefits within the mandated time frame. The actual failure rate, therefore, is likely to be higher.
City agency's internal quality reports from varying periods from 1992 through 1994 suggest a link between the failure to provide timely services and insufficient staffing in the Undercare units. See Cohan Aff. Ex. L. These reports detail substantial numbers of unassigned caseloads, see id. (two unassigned caseloads at Crotona ISC; five at Yorkville; eleven at Melrose; eight at Bergin; eight at Willis; seven at Wyckoff; five at Richmond), unsupervised Undercare groups, see id. (three unsupervised groups at Yorkville ISC; two at Bergin; two at Willis; three at Wyckoff; two at Richmond), and overworked Undercare specialists. See id. (275-328 cases per specialist at the Amsterdam ISC). These reports support the finding that City agency fails to provide timely aid continuing in significantly more that 10% of all cases designated eligible by State agency, and therefore that Plaintiffs have shown a substantial likelihood of success on the merits.
b. The redeployment plan as presented does not guarantee improved delivery of aid continuing.
Plaintiffs have also shown that the redeployment plan, as it was presented by City Defendants, does not guarantee improvements in City agency's provision of aid continuing.
Plaintiffs presented statements indicating the City agency's awareness that current staff shortages contribute to difficulties in meeting legal mandates, and that proposed staff cuts would likely exacerbate the problem. One report, for example, noted that
the Administration plans to cut AFDC, Home Relief, Food Stamp and Emergency Food programs by 2,248 positions . . . . This . . . reduction . . . has the greatest impact in liaison and adjustment staff, supervision in undercare and new applications, pre-screening, clerical support, field auditors, fair hearing facilitators, and eligibility specialists. The timely and accurate processing of income support applications may be at risk, due to increases in public assistance caseload . . . and the cumulative reductions and redeployments throughout Income Support. Timely processing of all entitlement claims . . . [is] Federally mandated, and violations may result in sanctions and penalties. Cumulative reductions in fair hearing support staff may expose the City to sanctions.
Cohan Decl. Ex. W, Fiscal 1995 Exec. Budget Hearings, May 24, 1994, Committee on General Welfare, DSS/HRA, at 10 (emphasis added); see also Cohan Decl. Ex. BB, HRA Office of Budget Administration, Executive FY1995 P.E.G.'s, May 24, 1994, Resp. Center IS, at 1 ("[The proposed reductions] might result in increased error rates and delays in eligibility approvals and recertifications which might lead to sanctions."); see id. at 4 ("Reduced supervision will also potentially increase the error rate and limit our ability to meet fair hearing compliance timeframes, recertification timeframes, and other similar mandates."). Defendant Hammons, moreover, has acknowledged that staff reductions would subject City agency not only to sanctions, but to the precise types of claims asserted in this action.
Cuts of this dimension will lead to almost immediate State and Federal sanctions for failure to meet legally mandated requirements. . . . In addition, lawsuits will be filed by advocates . . . seeking to restore mandated services and staffing levels. We will not be able to defend these lawsuits.
Cohan Decl. Ex. AA, Memorandum from Hammons to Lackman, Feb. 11, 1994, at 1.
Plaintiffs have also demonstrated meaningful concerns that redeployment will actually worsen the provision of aid continuing benefits. Under the plan the Applications and Undercare units will merge. While not objecting to the merger itself, Plaintiffs have presented evidence that questions the feasibility of the agency's proposed division of responsibilities for processing new applicants as well as for aid continuing. This evidence includes City agency quality control reports from 1992 to 1994 demonstrating insufficient staff to handle applications. See Cohan Ex. L. (Roosevelt Drive ISC: "workers from undercare were constantly pulled to conduct [application] interviews"; Crotona ISC: undercare staff routinely used in Applications; Queensboro ISC: "staff were constantly being pulled from undercare to do paperwork in applications"; Brownsville ISC: Undercare area "adversely affected" by need to assist in Applications; Amsterdam ISC: Undercare supervisors double covered in Applications hampering ability to meet deadlines). Since City agency has endured a significant headcount reduction and increase in total cases over the last two years, the Court has no reason to assume such problems have abated. The Court therefore must find that the merger of the backlogged Applications units with the Undercare units already found to experience delays in aid continuing is unlikely to result in improved service.
No significant increase in staff accompanies the merger to rebut this finding. The numbers provided to the Court indicate a net decrease of 967 specialists within the City agency, and a net increase of only 88 specialists in the reformulated Applications and Undercare units. See Blaustein Aff. PP 53-58. According to City agency, however, more important than the total number of specialists is the average caseload. The City agency states that the Plan will guarantee timely aid continuing benefits by maintaining a monthly average of 175 cases per specialist. Plaintiffs have successfully shown, however, that City agency's ability to achieve and to maintain this targeted ratio rests on unsupported assumptions.
City agency assumes that the number of total cases will not increase in fiscal year 1995. Yet Plaintiffs have demonstrated that total cases for the City agency have increased steadily for several years, from 476,023 in May of 1992 to 555,357 in June of 1994. See Cohan Decl. P 62 & Ex. O; Blaustein Dep. at 310-11. City Defendants offers no rebuttal to these figures to which the Court could defer. Indeed, a City budget officer acknowledged that the City has no reliable method for predicting caseloads. See Anantharam Dep. at 54-59.
Also unsupported is City agency's assertion that specialists will maintain a steady workload by closing as many cases each month as they accept for benefits. Under the plan, a specialist will be responsible for eight to twelve new applications each month, of which approximately 40%, or three to five, would be accepted and added to the specialist's workload. City agency claims that each specialist will also average six to eight closings a month, thereby maintaining a workload averaging 175 cases. See Blaustein Dep. at 342. Plaintiffs assert, however, that these figures overlook cases which are closed and re-opened during the same month which are reported as closings but which will remain in a specialist's caseload. See Richardson Aff. P 35. When accounting for such cases, Plaintiffs assert, the Plan fails to maintain the 175 average caseload that City agency indicates is the key to improving the timely provision of aid continuing. City agency failed to rebut this assertion.
City agency also failed to provide anything other than conclusory statements supporting its assertion that selective review procedures and the designation of Undercare supervisor assistants will produce anticipated efficiencies. See Blaustein Dep. at 331-38. While the Court respects the agency's province to devise and implement innovations to its policies and procedures, City Defendants simply did not present any substantive basis for its projections to which the Court could reasonably defer.
Ultimately City Defendants presented only one substantive response to Plaintiffs' objections to the redeployment: City agency offered that if monitoring indicates that the average workload begins to rise above 175 cases, the agency would seek additional staff. See Blaustein Dep. at 382-85. The Court notes, however, that such staff increases are improbable in the foreseeable future. See Blaustein Dep. at 386. Indeed, such requests have been denied previously. See Blaustein Dep. at 389. The Court, therefore, in the absence of any other substantive support for City agency's assertions and rebuttal of Plaintiffs' claims, cannot simply defer to what is ultimately the wait and see approach advocated by City Defendants.
The Court finds that Plaintiffs have demonstrated the substantial likelihood that City agency will be unable to provide timely aid continuing after the redeployment. The Court further finds that City Defendants have failed to provide sufficient substantive evidence to overcome this likelihood. Injunctive relief is therefore warranted to prevent a worsening of the harms demonstrated by Plaintiffs.
D. Injunctive relief
Plaintiffs sought an order requiring Defendants to provide aid continuing to the named Plaintiffs. See Pl. Mem. at 24-25. The Court understands that all named Plaintiffs have received or are currently receiving the aid continuing benefits for which they were or are eligible. However, to the extent that such benefits have not already been provided, the Court orders Defendants to ensure their provision within a period not to exceed two calendar weeks from the date of this Opinion.
Plaintiffs sought an order requiring Defendants to provide aid continuing to those unnamed plaintiffs and informal intervenors who have not yet received the benefits to which they are entitled. The Court grants this request and orders Defendants to take every measure to comply with applicable mandates for the timely provision of aid continuing. Such measures should include, but are not limited to, maintaining throughout the duration of this litigation the informal intervenor procedure developed by counsel and reported to the Court on November 17, 1994. See Letter of Ian F. Feldman to Ann M. Vroman, Nov. 17, 1994. Amendments or alterations to that procedure henceforth may be made only by stipulation between the parties and on approval of the Court.
Plaintiffs sought an order enjoining City Defendants from further reducing the staff responsible for insuring that all class members receive their aid unchanged pending a fair hearing decision. The Court grants such relief insofar as it orders a temporary continuation of the existing stay of reductions in the L&A and Undercare staff responsible for the provision of aid continuing. This stay may be removed by City Defendants upon Court approval of a report addressing with specificity and substance the methods by which City agency will rectify its failure to provide aid continuing on a timely basis. An appropriate submission should address, along with whatever pertinent information Defendants wish to provide, evidence supporting City agency's assertions that have been questioned herein. This report should therefore include (a) evidence of the total number of initial aid continuing directives issued each month in response to requests for fair hearings emanating from New York City residents; (b) evidence of the time from issuance of such directives to the implementation of aid continuing; (c) evidence supporting the assertion that the total City agency caseload is likely to remain constant; (d) evidence that monthly case closings and openings, when accounting for re-openings, are likely to be equal; (e) evidence supporting the proposed selective review processes, including evidence specifying the number of review and authorization actions from which supervisors will be relieved under the processes, as compared to the current procedures; (f) evidence showing the number of supervisory actions and tasks assistant group supervisors will be expected to perform in addition to their regular caseloads; and (g) any evidence suggesting the probability of additional staff or further redeployment of staff in the event that the current redeployment, if allowed to move forward, fails to improve the provision of aid continuing. City Defendants should serve this report on the Court and Plaintiffs. Plaintiffs shall have an appropriate time to respond, as determined by the Court upon inspection of the nature and scope of Defendants' submission.
Because the Court has temporarily extended the current stay, Plaintiffs' alternative request for an order enjoining any reduction in the benefits of any recipient without first positively determining that the recipient has not made a timely request is denied.
For the reasons stated, Plaintiffs' motion for class certification is granted. Plaintiffs' motion for preliminary injunction is provisionally granted as explained above. Parties are reminded that a conference is scheduled in this matter for January 11, 1995 at 10:00 a.m.
Dated: New York, New York
January 4, 1995
JOHN F. KEENAN
UNITED STATES DISTRICT JUDGE