Aliessa v. Novello, No. 73 (New York Court of Appeals, June 5, 2001).
New York's highest court has held that a state statute denying state-funded Medicaid benefits to certain legal immigrants who are not eligible for federally-funded Medicaid violates both Article XVII, section 1 of the New York State Constitution which requires the state to care for the needy and the federal and state equal protection guarantees. The state statute was enacted after the 1996 federal welfare law which restricted alien eligibility for federally-funded assistance and authorized states to do the same in their own programs. Plaintiffs excluded from Medicaid are eligible for state safety net assistance and emergency medical treatment.
As to the state Constitutional requirement to care for the needy the court rejected the state's argument that the statute was within its discretion to set a particular level of benefits for needy individuals. Instead, it concluded that the statute “violates the letter and spirit of article XVII, §1 by imposing on plaintiffs an overly burdensome eligibility condition having nothing to do with need, depriving them of an entire category of otherwise available basic necessity benefits.” As to equal protection, the court found that strict scrutiny applies and that the statute cannot survive this test. It rejected the state's argument that the statute implemented federal immigration policy and therefore was subject to the lenient rational basis test. Relying on Graham v. Richardson, 403 U.S.365, the court found that the federal law's authorization to the states to discriminate against lawful aliens was not a uniform federal immigration policy that allowed application of the deferential rational basis test and that Congress cannot constitutionally authorize the states to discriminate.
Plaintiffs' attorneys: Ellen Yacknin, Greater Upstate Law Project, tel.: 716-454-6500, e-mail: eyacknin@wnylc.com; Elisabeth Benjamin, Legal Aid Society of New York, tel.: 212-577-3386, e-mail: Ebenjamin@legal-aid.org; Connie Carden, New York Legal Assistance Group, tel.: 212-750-0800, fax: 212-750-0820.
Arrowood v. N.C. Department of Health and Human Services, 2001 N.C. Lexis 276 (N.C. Supreme Court, April 6, 2001).
In a per curiam opinion reversing the Court of Appeals the Supreme Court has ruled against a public assistance recipient whose family's cash assistance was terminated because of the state's 24 month time limit. In applying the time limit the state agency had counted receipt of assistance in months before the 1997 enactment of legislation and implementing regulations for the state's time-limited TANF program. During those pre-1997 months the state was operating under an HHS-approved AFDC waiver which included time limit provisions, but the state had not promulgated implementing regulations. The recipient argued that applying the time limit retroactively and counting the pre-1997 months was improper because the state's failure to adopt regulations for that pre-1997 period violated the state Administrative Procedure Act.
The Supreme Court did not write its own opinion but relied on the dissenting opinion in the Court of Appeals. That opinion concluded that the Work First program waiver was federal law with which the state was required to comply. The waiver terms and conditions specified the time period for implementation of the waiver program as well as the 24 month time limit. The recipient was required to sign a personal responsibility contract setting out the beginning of the 24 month time limit period. The state APA bars an agency from adopting a rule “that repeats the content of a law, a rule or a federal regulation.” The dissenting opinion therefore concluded that because the waiver was clear, the state did not have to promulgate a rule under the APA.
Petitioner's attorney: Curtis Venable, Pisgah Legal Services, P.O. Box 2276, Asheville, NC 28802-2276, tel.: 828-253-0406, e-mail: c-d.venable@att.net. Amici curiae briefs were submitted by North Carolina Justice and Community Development Center and Hunton & Williams on behalf of No. Carolina Justice and Community Development Center, No. Carolina Chapter of NOW and others.
Williams v. Humphreys, 121 F. Supp. 2d 881, 2000 U.S. Dist. LEXIS 18923 (S.D. Ind. 2000).
This class action case challenged the Indiana requirement that children excluded from TANF benefits by the family cap rule assign their rights to child support to the state, just as children who receive TANF benefits are required to assign their child support rights to the state. The court has held that requiring assignment by such excluded children is an unconstitutional taking of private property for public use without compensation.
The court first concluded that the federal statute, 42 U.S.C. 608 (a)(3) does not prohibit the state's rule. It then turned to the constitutional claim and distinguished this case from Bowen v. Gilliard, 483 U.S. 587 (1987) which upheld the mandatory inclusion rule in the former AFDC program. Applying the three factor analysis used in Bowen, the court first looked at the economic impact of the assignment. It concluded that unlike the situation in Bowen the only economic impact on the child is negative. The child does not receive benefits because of the assignment, the state is not assuming the risk of non-payment by providing benefits to the child, and the state retains support collected pursuant to the assignment to repay benefits provided to other family members.
Looking at the second factor which involves whether the individual has a protected interest, the court found that children do have a property interest in child support and the state has deprived them of that interest. As to the last factor, which is the nature of the governmental action, the court finds that the state has not provided anything comparable in return for the assignment.
The court rejected the argument that excluded children are nonetheless recipients of TANF and therefore subject to assignment, concluding that calling excluded children recipients does not mean that such children are recipients in any legally relevant way. It also rejected the argument that 42 U.S.C. 608 (a)(3) requires the assignment, since it has found that excluded children are not TANF recipients. The court granted permanent injunctive relief and ancillary notice relief to the class so that class members could request re-examination of their assignment.
Plaintiffs' attorney: Jackie Bowie, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202_3952, tel. 317 635_4059; fax 317_635_4105, email: iclu@aol.com.
Rimes v. Ohio Department of Human Services, 2001 Ohio App. LEXIS 254 (Jan. 26, 2001).
The court has reversed the sanction imposed on petitioner for not participating in required work activities, finding that petitioner had established that the child care placement was not appropriate for her child, as required by the county's good cause standards. Petitioner reported that her 2-year old child had reported sexual abuse by a private babysitter; the report was investigated but not substantiated. The welfare agency then located a day care provider for the child but the petitioner told the agency that she did not want her child in day care because of the recent alleged abuse. The welfare agency told petitioner she had to participate in work activities because the investigating agency advised that the child had not been traumatized and would do well in day care. Petitioner did not participate and was sanctioned.
She challenged her sanction on the ground that she had good cause because “appropriate” child care was not available. A child psychoanalyst/child psychiatrist was among the witnesses for petitioner at her administrative hearing. This expert testified that the child showed compelling symptoms of separation anxiety and that while he could not conclude that abuse had occurred it would not be in the child's interest to be in day care for a period of 4-6 months without his mother present on the premises. The hearing officer concluded that petitioner had not established her claim and this was upheld by the lower court.
The appellate court found that the standard of what is appropriate child care “is to be looked at from the standpoint of the safety and well-being of the child,” that petitioner had met her burden of showing that appropriate care was not available through the expert testimony that special arrangements were needed and that the county agency had not provided substantial, reliable or probative evidence from the standpoint of the “safety of the child” to support its decision. The decision of the lower court was reversed as an abuse of discretion.
Petitioner's attorney: Marley Ford Eiger, Legal Aid of Lake, Geauga, Painesville, OH.
Gambino v. Department of Transitional Assistance, Civil Action No. 00-0213-E (Superior Court, Suffolk, Mass., Mar. 13, 2001).
The court has ruled for the plaintiff in this challenge the welfare agency's denial of the earnings disregard for her earnings in the computation of the TANF grant for her daughter. Plaintiff, a working mother of a young child, was ineligible for TANF for herself because she had a prior conviction for a drug-related felony. The welfare agency's position was that as an ineligible person who was in the filing unit but not the assistance unit, the disregards did not apply to her income. Moreover, disregards are available only to recipients, and the plaintiff was not a recipient, according to the welfare agency. The court rejected these arguments based on the state statute and its underlying purpose of promoting work and federal law. Under state welfare rules, the family was considered “non-exempt.” Non-exempt families are subject to work rules, lower assistance levels, and income disregards, and these rules are part of a package. The only specification of the circumstances for denying the disregard did not apply to plaintiff. While plaintiff was personally ineligible based on the felony drug conviction rule, the court considered her to be a recipient insofar as she receives assistance for her dependent child. The court further concluded that under 12 U.S.C. 862a (b)(1) the agency should have applied the disregard in determining the child's eligibility and grant amount and then reduced the grant by the differential between the TANF grant for a one-person and a two-person unit.
Plaintiff's attorney: Michele Lerner, Greater Boston Legal Services, 197 Friend Street, Boston, MA 02114-1807m tel.: 617-371-1270, e-mail: mlerner@gbls.org
Gates v. McIntire, Civil Action No. 99-642 (Suffolk Superior Court, Mass.Oct. 31, 2000).
This case raised various claims against the state's family cap policy. In earlier proceedings the plaintiffs were unsuccessful in getting a preliminary injunction against the family cap. The court then granted a partial motion to dismiss certain claims without prejudice and plaintiffs withdrew their request for class certification.
In its Oct. 31, 2000 decision the court ruled against plaintiff on their claims that implementation of the family cap violates due process because the defendant has failed 1) to identify standards defining “extraordinary circumstances” for obtaining a waiver as provided in state statute and 2) to provide adequate notice to plaintiffs of the reasons for denying waiver of the family cap. State regulations implementing the “extraordinary circumstances” exception require a waiver in certain specific situations and allow the Commissioner to grant requests setting forth other extraordinary circumstances. In reviewing these regulations the court interpreted the regulatory reference to “extraordinary circumstances” to mean situations of the same type as the specified circumstances, noted that it would not be possible to enumerate all extraordinary circumstances, and thus rejected plaintiffs' claim. The court likewise rejected claims that the denial notices were inadequate, finding that if the written requests for waiver were deemed incorporated in the denial notices by reference “then the notices can be read to state that the Department ruled that the facts in the requests do not reach the standard for a showing of extraordinary circumstances.” The court also held that plaintiffs did not have to exhaust administrative remedies.
Plaintiffs' attorneys: Deborah Harris, Ruth Bourquin, Alan Rodgers, Massachusetts Law Reform Institute, 99 Chauncy Street, Suite 500, Boston, MA; tel. 617_357_0700; fax 617_357_0777; email dharris@gbls.org and rbourquin@gbls.org.
Rotondo v. Ferguson, C.A. No. 98_ 1497 (R.I. Superior Court, Providence, March 29, 2001) (Order Approving Stipulation Regarding Contempt Motion and Stipulation).
As reported earlier, in 1999 the parties settled this case which challenged the agency's failure in Medicaid disability cases to determine eligibility within the time required by federal and state law and its failure to take final action on hearing requests within 90 days. According to plaintiff's counsel the defendant was found in contempt in the summer of 2000 and entered into a compliance plan that included additional monitoring measures, such as monthly reports to plaintiff's counsel on every delay with all the facts and dates necessary to determine if the delay violates federal law and the consent order. The state subsequently failed to comply with the compliance plan and delays continued.
Plaintiff filed a second contempt motion in December 2000 and in March 2001 the parties entered into a settlement which has been approved by the court. Among the terms of the settlement are that plaintiff hire a computer consultant at defendant's expense to assess the adequacy of the defendant's computer, tracking, tickler, and other systems to take timely action. The defendant will not be purged of contempt until the consultant's report is filed. If the consultant concludes that systems are not adequate, further proceedings may be sought by either party and in the interim the defendant shall not be purged. The settlement also requires the defendant to file monthly reports for an extended period with specific directives as to the content of the reports to deal with the defendant's prior reporting failures and otherwise directs compliance with the consent order. This case was not brought as a class action.
Plaintiff's attorneys: Gretchen Bath and Janet Gilligan, Rhode Island Legal Services, 56 Pine St., 4th Fl., Providence, RI 02903, tel. 401_ 274_2652.
Debra Smith v. Los Angeles County Board of Supervisors (Los Angeles Superior Court, Apr. 10, 2001)
According to a report from the Western Center on Law and Poverty, “the court has entered judgement in favor of Los Angeles County in this taxpayer suit challenging the County's Pilot Project of requiring virtually all applicants for CalWORKs benefits to undergo an unannounced home visit....” “While the court found that Los Angeles County was imposing a new condition on eligibility for CalWORKs benefits and that ‘counties cannot set up their own conditions of eligibility' for aid, the court nonetheless reasoned that the County's program was permitted by state law since ‘home visits to confirm eligibility are not expressly prohibited by the relevant DSS regulations.' In that regard, Judge Fruin found that the home visits program complied with the requirements in Manual of Policies and Procedures (“MPP”) § 40-169 that home visits can be conducted where eligibility for aid ‘cannot be satisfactorily determined without such a visit.' The court additionally found that the County program did not violate the prohibition in MPP § 200-007.33 against ‘mass or indiscriminate home visits' because that regulation is only directed towards the operations of Special Investigative Units.”
“Turning to the constitutional issues in the case, Judge Fruin ruled that this case was distinguishable from Parrish v. Civil Service Commission, 66 Cal.2d 260 (1967), and so did not violate the state constitutional provision concerning searches and seizures. Judge Fruin likewise held that the Pilot Project did not violate applicants' rights of privacy nor dit it impose an unconstitutional condition on their eligibility for aid.”
Plaintiffs' counsel: Yolanda Arias, Silvia Argueta, Legal Aid Foundation of Los Angeles, (213) 640-3883; Kate Meiss and Dora Lopez, San Fernando Valley Legal Services (818) 896-5211; Bob Newman, Yolanda Vera and Richard A. Rothschild, Western Center on Law and Poverty, (213) 487-7211; Dan Tokaji, Mark D. Rosenbaum, ACLU Foundation of Southern California, (213)977-9500.
DeJesus v. Department of Revenue et al., Civil Action No. 98_ 59946 (Mass. Superior Court, Suffolk)(Settlement Agreement, 2001).
The parties have settled this action brought on behalf of TANF recipients who have been sanctioned for alleged failure to cooperate with child support enforcement requirements and who have informed the state TANF and child support agencies of their willingness to comply but who have been unable to get the sanctions lifted. Defendants are the Department of Revenue (DOR) which is responsible for determining cooperation and the Department of Transitional Assistance (DTA) which administers the TANF program. Plaintiffs claimed that DOR violated state law requiring it to remove the sanctions of those who cooperate and to promptly notify DTA of such cooperation and that DTA violated state statutory and regulatory requirements requiring fair and equitable administration, the provision of all benefits for which individuals are eligible, assistance in obtaining verification, and notice to recipients. Plaintiffs also asserted federal and state due process claims.
The settlement includes the following among its terms: DTA will affirmatively raise the issue of cooperation at eligibility or transition reviews with sanctioned recipients. For those who want to cooperate DTA will ask about new information concerning absent parents; forward notices of cooperation to DOR within 3 business days; and monitor cases for recurrent problems. Within 10 days of receiving cooperation notices, DOR will notify sanctioned individuals of the action needed to show cooperation and reschedule the event. If DOR does not schedule such events within 60 days after the notice, the individual will be deemed to have cooperated. DOR will promptly notify DTA of cooperation. The agencies will issue proposed regulations and relevant policy material. For six consecutive quarters DOR will report to plaintiffs' counsel on the number of recipients who have been sent a cooperation notice, and the status of these cases including information about rescheduled events, the recipient's participation, and whether a sanction has been lifted; DTA will report on the number of child support sanctions by each local office. Those under sanction when the agreement is executed will receive a one-time notice of the right to have the sanction lifted upon cooperation. Other terms address implementation and enforcement and the parties' agreement that certification of the putative class is not required. Plaintiffs' counsel also notes that when the suit was filed Maximus had a contract for child support enforcement services, that some 125 recipients were under sanction based on information from Maximus and that sanctions were often erroneous. Early in the litigation the agencies agreed to rescind sanctions involving Maximus. The agency terminated Maximus during its contract period, but the reasons were not publicized.
Plaintiffs' attorneys: Brian Flynn, Melanie Malherbe, Greater Boston Legal Services, 197 Friend St., Boston, MA 02114, tel. 617 603_1627, email: bflynn@gbls.org.
Voluntary Compliance Agreement between the HHS Office for Civil Rights and Georgia Dept. of Human Resources, Div. of Family and Children Services (Feb. 28, 2001).
The Georgia TANF agency and HHS' Office for Civil Rights have entered into a voluntary compliance agreement to address the state agency's administration of TANF in compliance with the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. OCR conducted a compliance reviews as part of “an OCR national priority enforcement initiative” and in response to complaints from Georgia Legal Services. The terms of the agreement include numerous detailed steps the agency must take within specified time frames. Among the terms are the following: The state agency agrees to delegate specific duties to its ADA/Section 504 coordinator to assure coordination of the agency's compliance efforts, including periodic reviews of agency policies and procedures, monitoring of federal requirements, ensuring the development of tracking systems to evaluate provision of services to disabled clients, assuring development of policies for grievance procedures by clients, record keeping systems for complaints filed by clients, coordination of staff training, and ensuring monitoring of compliance. The agency will modify its “Implementation Plan for Disabled TANF Clients” to, among other things, assure that its Disability Work group meets regularly and invites participation from Georgia Legal Services and OCR; reflect implementation dates for various activities included in the voluntary compliance agreement; provide for development and submission to OCR of a training agenda and training within a specified time; and include in the plan the various policies and procedures to be developed in accord with the agreement; and institute the revisions in the plan consistent with OCR's January 2001 guidance.
The agency will meet with Georgia Legal Services and OCR to discuss how it will address the particular needs of each individual complainant. The agency will assure that each county office has taken steps to provide effective communication with sensory-impaired clients. It will develop procedures to assure that each client who needs it will receive reasonable accommodation to participate effectively in the Division of Rehabilitation Services evaluation. The agency will develop procedures to reach out to people terminated from TANF who may not have been properly assessed for disability (starting first with those who have received lifetime sanctions). Other procedures deal with what happens if OCR determines that the agency has failed to comply with the agreement. Available on Welfare Law Center website:
www.welfarelaw.org. Go to Representing Clients with Disabilities: Advocacy Materials.
Attorney for complainants: Nancy Lindbloom, Georgia Legal Services, P.O. Box 547, Athens, GA 30603, tel.: 706-369-5922, e-mail: nlindbloom@glsp.org.
Solis v. Saenz (filed Feb. 27, 2001).
As reported by the Western Center on Law and Poverty, “this class action ...challenges the state welfare director's refusal to honor the effective date of a change in federal food stamp law which helps welfare and food stamp families own reliable used cars. The new rule, 7. C.F.R. § 273.8 (E)(i)(G), requires that states consider any car whose sale would not realize at least $1500 for the owner as an inaccessible resource. Thus, a car worth a lot of money but in which the owner has little equity will no longer disqualify the family from Food Stamps and cash aid in California. The legal issue is whether the entitlement to benefits to persons covered by the new rule runs from the effective date of the rule (January 20, 2001) or the date by which states must implement it (June 1, 2001).” The Western Center also reports that the defendant has agreed to relief for the two named plaintiffs.
Plaintiffs' attorneys: Clare Pastore, Western Center on Law and Poverty, 3701 Wilshire Blvd, Ste 208, Los Angeles, CA 90010, tel. 213 487-7211, cpastore@wclp.org.; Brewer & Mitchell, LLP.
Domenika v. Saenz, Case No. 317039 (Superior Ct., San Francisco County, Cal.) (Stipulation and order re Class Certification).
As reported in the March 2001 Welfare Bulletin, under the terms of a stipulation and order the defendants were barred from considering child support payments made on behalf of a minor parent intended to provide for the needs of the minor parent in determining the CalWORKS eligibility and grant amount for the minor parent's child under provisions of state welfare law. Pursuant to the recent stipulation and order the action is certified as a class action and the welfare department agrees to clarify a
particular regulation to provide examples of its application to certain kinds of families and to review cases subject to the regulation identified by plaintiffs' counsel to assure that the correct aid was granted and to make any necessary corrective payments.
Plaintiff's attorneys: Jennifer Horne, Hope Nakamura, Peter Reid, Legal Aid
Society of San Mateo County, 521 East 5th Ave., San Mateo, CA 94402, tel. 650_
558_0915; Sarah E. Kurtz, Eve Stotland, National Center for Youth Law, 405 14th
St., 15th Floor, Oakland, CA 94612, tel. 510-835_8098.
In re M.S. (Ohio Department of Job and Family Services, January 12, 2001).
The hearing officer held that the appellant was entitled to an extension of Ohio Works First benefits beyond 36 months because the county's policy of counting all income in the household to determine eligibility for an extension, particularly income excluded in OWF eligibility determinations, was in conflict with state and federal law. The appellant had received Ohio Works First for 36 months and her benefits were proposed to be terminated due to the time limit (R.C. § 5107.18). She applied for an extension under the county's hardship plan, which provided for an extension of OWF benefits beyond 36 months in certain situations the county had identified as likely to indicate a hardship for a family leaving OWF. The county denied her application for a hardship extension because the county's hardship plan required the county to take into account all income, including any income which would otherwise be excluded under Ohio Works First, such as SSI. The appellant's spouse and ten-year-old child received an amount of SSI income which exceeded the OWF payment standard. The hearing officer held that “O.R.C. 5107.18 contains no authority for the agency to waive existing OWF eligibility criteria nor does it contain authority for the agency to waive existing OWF eligibility criteria except for time limits.”
Appellant's representative: Kim Cole, Southeastern Ohio Legal Services-Newark.
The item above was reprinted from OSLSA Reports, Vol. 23, No. 2, February/March M 2001