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May 7, 1998

UNITED STATES OF AMERICA, Plaintiff, against STATE OF NEW YORK, GEORGE E. PATAKI, Governor of the State of New York, BRIAN J. WING, Acting New York State Commissioner of Social Services, BARBARA A. DeBUONO, New York State Commissioner of Public Health, JAMES L. STONE, New York State Commissioner of Mental Health, THOMAS A. MAUL, New York State Commissioner of Mental Retardation and Developmental Disabilities, RICHARD P. MILLS, New York State Commissioner of Education, JOHN L. BEHAN, Director of the New York State Division of Veterans Affairs, WALTER G. HOEFER, Director of the New York State Office for the Aging, JEAN SOMERS MILLER, New York State Commissioner of Alcoholism and Substance Abuse, ALEXANDER F. TREADWELL, New York State Secretary of State, ROBERT R. SNASHALL, Chairman of the New York State Workers' Compensation Board, MARVA L. HAMMONS, Commissioner of Human Resources of the City of New York, and THOMAS R. WILKEY, Executive Director of the New York State Board of Elections, in their official capacities, Defendants. DISABLED IN ACTION OF METROPOLITAN NEW YORK; JOVITA ACOSTA; TISHECA LUCKEY, Plaintiffs, -against- MARVA L. HAMMONS, Administrator, New York City Human Resources Administration, in her official capacity; BARBARA A. DeBUONO, Commissioner, New York State Department of Health, in her official capacity; BRIAN J. WING, Acting Commissioner, New York State Department of Social Services, in his official capacity, Defendants.

The opinion of the court was delivered by: BLOCK


 BLOCK, District Judge:

 The two above-captioned actions challenge the "agency-based" voter registration system that was implemented by the City and State of New York in response to the enactment of the National Voter Registration Act of 1993 ("NVRA"), 42 U.S.C. § 1973gg et seq. The discrete legal issue posed by the motions which are the subject of this decision is whether the State is required to designate the approximately 1,600 public and private hospitals, nursing homes, clinics, and other community-based organizations that process Medicaid applications in the City (the "subject facilities" or "facilities") as mandatory voter registration sites pursuant to this Congressional act. For the reasons that follow, the Court concludes that these facilities need not be so designated.

 In case number 96-CV-5562, the plaintiff is the United States of America ("the Government"), and the defendants are the State of New York ("State"), eleven State officials, including Governor George E. Pataki (collectively "the State defendants"), and Marva L. Hammons in her capacity as Commissioner of the Human Resources Administration ("HRA") of the City of New York ("City"). *fn1" In case number 96-CV-5864, the plaintiffs are Disabled in Action of Metropolitan New York, Inc. ("DIA"), a New York-based not-for-profit organization that advocates on behalf of the disabled, and two individuals, Jovita Acosta and Tisheca Luckey (collectively "the DIA plaintiffs"). The defendants are the Commissioner of HRA, the State Health Commissioner, and the Acting State Commissioner of Social Services.

 There are three motions pending before the Court. The Government and the DIA plaintiffs each move for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking a declaratory judgment that HRA and the State defendants are required to designate the subject facilities as voter registration sites, thus ensuring that the facilities offer all Medicaid applicants the full range of voter registration services mandated by the NVRA. The Government contends that the subject facilities are so critical to the administration of the City's Medicaid system that they constitute de facto arms of the HRA that must therefore provide voter registration assistance to all applicants. HRA has also moved for partial summary judgment, contending that, as a matter of law, the subject facilities need not be designated as voter registration sites. Because of the considerable overlap between the two cases, the three motions are consolidated for disposition.


 In order to evaluate plaintiffs' argument that the NVRA requires voter registration at the subject facilities, the Court will first discuss the NVRA, and then turn to a general discussion of the manner in which Medicaid applications are processed within the City.

 I. The NVRA

 The NVRA, also known as the "motor-voter" law, was designed to "establish procedures . . . [to] increase the number of eligible citizens who register to vote in elections for Federal office" and "to enhance[] the participation of eligible citizens as voters in elections for Federal office." 42 U.S.C. § 1973gg(b)(1), (2); see also Association of Community Organizations for Reform Now (ACORN) v. Miller, 129 F.3d 833, 834-835 (6th Cir. 1997); Association of Community Organizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 792-793 (7th Cir. 1995). To that end, the NVRA requires that states, in addition to any other method of voter registration allowed by state law, establish procedures for three separate methods of voter registration: (1) by application made simultaneously with an application for a driver's license; (2) by mail application; and (3) by application at certain designated federal, state, and non-governmental office sites, also known as "agency-based" registration. 42 U.S.C. § 1973gg-2(a).

 Section 1973gg-5 of the NVRA implements a two-tiered approach to agency-based voter registration. First, each state is required to designate as voter registration agencies "all offices in the State that provide public assistance." 42 U.S.C. § 1973gg-5(a)(2)(A), (B). In the conference report that accompanied the final version of the NVRA, Congress indicated that "[by] public assistance agencies, we intend to include those State agencies in each State that administer or provide services under the food stamp, medicaid, the Women, Infants and Children (WIC) and the Aid to Families With Dependent Children (AFDC) programs." H.R. Conf. Rep. No. 103-66, 103rd Cong., 1st Sess. (April 28, 1993) ("Conf. Rep."), at 19. The legislative history further indicates that the purpose of the mandatory agency-based registration program was "to supplement the motor-voter provisions of the bill by reaching out to those citizens who are likely not to benefit from the State motor-voter registration application provisions." H.R. Rep. No. 103-9, 103rd Cong. 1st Sess. (February 2, 1993) ("House Rep."), at 12. Thus, "agency-based voter registration provides a useful supplement to motor-voter registration systems, [and] enables more low income and minority citizens to become registered . . . ." Sen. Rep. 103-6, 103rd Cong., 1st Sess. (February 25, 1993) ("Sen. Rep."), at 14.

 In addition to these mandatory voter registration sites, each state must select an unspecified number of other offices within the state to serve as voter registration sites. These alternative sites are sometimes referred to as "discretionary" voter registration sites, although this is something of a misnomer in that each state is required to designate other offices as voter registration sites and may exercise discretion only in deciding precisely which sites to designate. "Discretionary" sites may include state or local government offices, such as public libraries, public schools, offices of city and county clerks, fishing and hunting license bureaus, government revenue offices, and unemployment insurance offices. 42 U.S.C. § 1973gg-5(a)(3)(B)(i). Notably, discretionary sites may also include "Federal and nongovernmental offices, with the agreement of such offices. " 42 U.S.C. § 1973gg-5(a)(3)(B)(ii) (emphasis added). Moreover, while the statute provides that all departments and agencies of the executive branch of the federal government are required, "to the greatest extent practicable," to cooperate with the states in implementing agency-based voter registration, non-governmental entities are merely "encouraged" to do so. 42 U.S.C. § 1973gg-5(b). Thus, the NVRA clearly provides that non-governmental offices must consent before they can be designated as discretionary voter registration sites. However, the Senate Report on the NVRA states that "[a] comprehensive agency-based program should include private locations and offices, as well as public agencies," and that "an agency program that includes private places at which persons may register to vote may be organized through cooperative arrangements and agreements between the sponsoring agency and appropriate local or State election officials." Sen. Rep. at 15.

 The statute provides that at each designated voter registration site, whether mandatory or discretionary, the following services must be made available: (1) distribution of mail voter applications; (2) assistance to applicants in completing voter registration forms; and (3) acceptance of completed voter registration application forms for transmittal to state election officials. 42 U.S.C. § 1973gg-5(a)(4)(A). The statute specifically provides that any person who assists applicants in filling out voter. registration forms may not seek to influence an applicant's registration, display any party allegiance, discourage an applicant from registering to vote, or make any statement that would lead an applicant to believe that his or her decision to register or not to register would have any bearing upon the eligibility of services. 42 U.S.C. § 1973gg-5(a)(5).

 II. The New York Medicaid Program

 The Court's discussion of the Medicaid program in New York is largely drawn from the Stipulation of Facts and Supplemental Stipulation of Facts that were submitted by the parties in lieu of a statement pursuant to Local Rule 56.1. The stipulations were signed by counsel for both sets of plaintiffs, HRA, and the State Board of Elections, but not by counsel for the remaining State defendants. However, unless otherwise indicated, the facts are not in dispute.

 The Medical Assistance Program, sometimes referred to as the Medicaid or "MAP" program, is a joint state-federal program that provides medical assistance payments for qualified needy persons. Medical assistance is defined as "payment of part or all of the cost of medically necessary medical, dental and remedial care, services and supplies . . . ." N.Y. Soc. Serv. Law § 365-a(2). The program is administered statewide by the State Department of Health, *fn2" and citywide by the City's Department of Social Services. Defendant Barrios-Paoli is the Administrator of HRA, and is also the Commissioner of Social Services of the City of New York, and chief executive of the New York City Department of Social Services.

 As a general rule, persons who are eligible to receive cash assistance under the Aid to Dependent Children ("ADC") or Home Relief ("HR") programs, or who are disabled within the meaning of the federal Supplemental Security Income ("SSI") statute, are automatically entitled to receive Medicaid benefits. However, because persons not eligible for cash assistance under these programs may also qualify for Medicaid, see N.Y. Soc. Serv. Law § 366-b; N.Y. Comp. Codes R. & Regs., tit. 18, § 360-3.3, New York also accepts applications which only request medical assistance -- also known as "Medicaid-only" applications -- from persons who do not apply for ADC, HR, or SSI. These motions focus upon the manner in which Medicaid-only applications are processed by HRA.

 A needy person applying for Medicaid in the City must submit a completed application to HRA, which reviews and processes the application and ultimately determines whether the person is entitled to receive Medicaid payments. The City has established 19 MAP offices throughout the City at which individuals can apply for medical assistance. Thirteen of the MAP offices are located in outpatient departments of public and private hospitals, and six are free-standing offices. Additionally, the MAP central office on 34th Street in Manhattan also accepts Medicaid applications. Approximately 8,600 applications per month are made in person at the City's MAP offices. All of these MAP offices have been designated by the State as voter registration sites.

 Applicants at these MAP offices receive application forms from pre-screeners, who also advise applicants of the information and documentation that will be required to complete the form. As of May 1995, the Medicaid-only application form authorized by DSS has physically incorporated an application for voter registration. Applicants may complete the form either at the MAP office or at home. Approximately one week after HRA receives a completed application form, the prospective applicant is given an appointment for a face-to-face interview, at which a MAP eligibility worker reviews the application and supporting documentation. While HRA contends that MAP employees orally advise applicants that they may register to vote and offer assistance with completing voter registration applications both at the pre-screening stage and at the face-to-face interview, plaintiffs dispute this contention.

 HRA also accepts Medicaid-only applications from a variety of other sources, including public and private hospitals, nursing homes, health clinics, and community organizations. The City conducts a "certified pre-screener program" at which it trains persons who are not employed by MAP to assist applicants in completing their applications for Medicaid. Many of the persons who assist Medicaid applicants at hospitals, nursing homes, clinics, and community organizations have taken the City program. The State Board of Elections has not designated these facilities as voter registration sites. Moreover, HRA and the State defendants have not instructed these facilities about providing voter registration opportunities to Medicaid applicants, nor have they monitored the facilities to determine whether they provide such information on their own.

 Approximately 9,000 Medicaid applications are received by MAP each month from approximately 81 public and private hospitals in the City. Some, though not all, of the hospitals assist their patients in completing their Medicaid applications. However, to the extent that hospitals provide such assistance, they do so in order to obtain Medicaid reimbursement for services rendered to the applicant and not pursuant to statute or because of a contractual relationship with HRA. The hospital employees who may assist in the application process are not employed by MAP, and MAP has no supervisory authority over them.

 MAP maintains special offices in eleven City hospitals to review inpatient applications for Medicaid; however, these offices do not schedule face-to-face interviews with applicants, and MAP employees do not have any personal contact with the inpatient applicants. Inpatient applications from those hospitals that do not have a MAP office on site are transmitted to the main MAP office at 34th Street for eligibility determinations; however, upon receipt of those inpatient applications, the office does not schedule face-to-face interviews. Plaintiffs allege that approximately 41 private hospitals use a Medicaid application form that does not contain any space for voter registration, and that the remaining 40 public and private hospitals have not consistently used the DSS form that incorporates a voter registration application.

 HRA receives approximately 1,800 Medicaid-only applications per month from residents at approximately 308 nursing homes licensed by the State Department of Health. Additionally, HRA receives approximately 1,600 applications per month from approximately 1,237 health clinics and other community organizations. As with the hospitals that forward Medicaid applications to HRA, those nursing homes, clinics, and community organizations that assist applicants in completing forms do so in order to obtain Medicaid reimbursement and not pursuant to statute or by virtue of a contractual relationship with MAP. Similarly, HRA does not conduct in-person interviews with those applicants who submit their completed Medicaid application form through nursing homes, clinics, and community organizations. While HRA maintains that, as a general rule, clinics and community organizations use a version of the DSS application form that physically incorporates a voter registration application, plaintiffs allege that not all clinics and community organizations that transmit applications to MAP use this form and that MAP processes such applications for Medicaid regardless of whether the application form contains a voter registration application.

 In addition to the application scheme outlined above, a special set of rules applies to Medicaid applications made by pregnant women and persons applying on behalf of certain children born after September 30, 1983. The federal Medicaid statute requires that Medicaid application forms be made available to pregnant women and those applying on behalf of such children at sites other than local social services offices. See 42 U.S.C. § 1396a(a)(55). The intent of this statutory provision is to facilitate the application process and increase access to medical care by permitting applications to be completed at medical facilities rather than at government offices. See New York State Department of Social Services Administrative Directive 91 ADM-28 (August 19, 1991), annexed to Supplemental Stipulation of Facts ("Supp. Stip."), at Exh. "I." These sites include "disproportionate share hospitals," which are hospitals that participate in the bad debt and charity pool, see id. ; 42 U.S.C. 1396r-4(b), and Federally-Qualified Health Centers ("FQHCs"), which are those community health centers, migrant health centers, and centers that provide health care to the homeless, under grants from the federal government pursuant to the Public Health Service Act, 42 U.S.C. § 200 et seq. See 42 C.F.R. § 435.904.

 In order to carry out its obligation to provide pregnant women and qualified children with access to the Medicaid program, New York has enacted the Prenatal Care Assistance Program ("PCAP"), N.Y. Pub. Health Law § 2520 et seq. In the City, 62 hospitals and clinics have been designated as PCAP providers. These facilities furnish Medicaid application forms, assist applicants in completing the forms and collecting required documentation, and transmit the completed applications and documentation to the City Department of Social Services for eligibility determinations. The City's MAP receives more than 30,000 applications each year from PCAP providers. At those PCAP hospitals that have on-site MAP offices, MAP employees interview applicants. At all other PCAP sites, however, MAP employees do not have contact with applicants and do not conduct face-to-face interviews upon submission of the completed applications. The 62 PCAP providers have not been designated as either mandatory or discretionary voter registration sites. Moreover, the "Growing Up Healthy" application form that is used by PCAP applicants does not physically incorporate a voter registration form.

 III. Implementation of New York's Agency-Based Voter Registration Program

 In 1994, New York amended its Election Law to bring it into compliance with the requirements of the NVRA. 1994 N.Y. Sess. Laws, ch. 659. With a few exceptions not relevant here, these amendments became effective on January 1, 1995. Election Law § 5-211, as amended, designated the DSS as a public assistance agency that was required to provide voter registration opportunities. The statute also required that all agencies of local government that furnished such assistance also provide for voter registration. The statute designated as mandatory voter registration sites the following state agencies that provide services to people with disabilities: (1) the Department of Health; (2) the Department of Labor; (3) the Office for the Aging; (4) the Division of Veterans' Affairs; (5) the Office of Mental Health; (6) the Office of Vocational and Educational Services for Individuals with Disabilities; (7) the Office of Mental Retardation and Developmental Disabilities; (8) the Commission for the Blind and Visually Handicapped; (9) the Office of Alcoholism and Substance Abuse Services; (10) the Office of the Advocate for the Disabled; and (11) all other offices which administered programs established or funded by such agencies. *fn3" The statute also designated as discretionary voter registration sites the Department of State and the Division of Workers' Compensation. The statute required the Board of Elections to work with the United States Department of Defense to develop procedures for including recruitment offices as voter registration sites, and with the Immigration and Naturalization Service to ensure that mail-in voter registration applications were included with materials given to new citizens. Finally, the statute required that all institutions of the State University of New York and the City University of New York provide voter registration materials to students at the beginning of each school year and in January of every year in which a presidential election was scheduled to take place.

 On April 28, 1995, David C. Flanagan of the New York State Board of Elections sent a letter to MAP's Alicia Hamill, which stated, in pertinent part:

We would like to advise that as of this date we have not determined how best to proceed in handling the administration of agency-based voter registration with regard to institutional care, hospital eligibility or certified pre-screening programs.
Therefore, until further notice from this office, please do not make any arrangements with the approximately 2,500 locations within these programs with regard to training, supplies, or procedures connected with ...

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