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PERRY v. DOWLING

May 6, 1997

JODI PERRY, Individually, and on behalf of all others similarly situated, Plaintiffs, -vs- MICHAEL DOWLING, individually and in his official capacity as Commissioner of the New York State Department of Social Services; and JOAN SINCLAIR, as Commissioner of the Allegany County Department of Social Services, Defendants.


The opinion of the court was delivered by: CURTIN

 CURTIN, DISTRICT JUDGE

 The facts of this case are set out in detail both in this court's previous orders and in the decision of the Court of Appeals. We repeat only those facts necessary to the disposition of the instant motions.

 This court granted plaintiff's motion for summary judgment, concluding that the New York State Department of Social Services ("DSS") policy at issue was unreasonable. Perry v. Dowling, 888 F. Supp. 485 (W.D.N.Y. 1995). The policy requires women who receive prenatal and post-partum medical assistance under the Social Security Act, 42 U.S.C.

 
(EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT.)
 
Accordingly, in light of: (1) the language of the statute limiting the exemption to cooperation during the time period of pregnancy and 60-days after the last day of pregnancy, (2) the fact that recoupment does not undermine Congress's intent of encouraging early prenatal care, and (3) the fact that DSS's interpretation gives meaning to the entire statutory scheme, we conclude that DSS's interpretation is a reasonable and permissible construction warranting substantial deference. Consequently, we reverse and remand for consideration of the plaintiff's due process claims.

 Perry v. Dowling, 95 F.3d 231, 238 (2d Cir. 1996).

 Plaintiff now argues that even if the DSS policy is a reasonable statutory interpretation, defendants have violated her due process rights by failing to fully inform her of her rights not to cooperate. Specifically, plaintiffs argue that defendants must inform applicants that:

 
(1) Applicants for Medicaid, including prior recipients of "Poverty Level Pregnant Women" Medicaid coverage, are not required to cooperate with defendants to obtain support or repayment of previously paid "Poverty Level Pregnant Women" expenses from the unwed father if they apply for continued or first-time Medicaid coverage for their children, but not for themselves (See 42 C.F.R. § 433.148(b));
 
(2) recipients of "Poverty Level Pregnant Women" Medicaid coverage will be required to cooperate with defendants to obtain repayment of their prenatal and birth-related medical expenses only if they later apply for continued Medicaid coverage for themselves. (See Perry v. Dowling, 95 F.3d at 238); and
 
(3) applicants for, and recipients of, "Poverty Level Pregnant Women" Medicaid coverage have an absolute right to refuse to cooperate with defendants to obtain support from the unwed father. (See Perry v. Dowling, 95 F.3d at 238).

 Item 75, p.7.

 I. Plaintiff's Due Process Claim

 It is generally recognized that Medicaid, Medicare, and other federal cash assistance recipients have standing to raise due process claims alleging an agency's failure to issue adequate notice of their rights and obligations. See Schwartz v. Dolan, 854 F. Supp. 932 ...


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