Alexander v. Polk

• Decision Date: 31 October 1978
• Docket Number: Civ. A. No. 78-2594.
• Parties: Luvinia ALEXANDER, for herself and as guardian ad litum for Sharifa Alexander, Sylvia Bey, for herself and as guardian ad litum for Trustin Bey, Irene Burkett, for herself and as guardian ad litum for Robert Burkett, Andrea Carey, for herself and as guardian ad litum for Leslie Bonita Rex, Sheila Mitchell, for herself and as guardian ad litum for Tamika Mitchell, Elizabeth Truitt, for herself and as guardian ad litum for Leon Truitt v. Louis POLK, M.D., Acting Director of the Philadelphia Department of Health, Individually and in his official capacity, Pearl Pitt, M.D., WIC Coordinator Division of Maternal and Child Health, Philadelphia Department of Health, Individually and in her official capacity, David Soricelli, D.D.S., Director of Community Health Services, Individually and in his official capacity, Christine Kniszley, M.D., Director of Maternal and Child Health Programs, Individually and in her official capacity, Barry Dickman, Administrator of the WIC Program, Individually and in his official capacity, Jack Burkhardt, Administrator of the Division of Maternal and Child Health of the Philadelphia Department of Health, Individually and in his official capacity, the Department of Health of the City of Philadelphia.
• Court: U.S. District Court — Eastern District of Pennsylvania

459 F. Supp. 883

Luvinia ALEXANDER, for herself and as guardian ad litum for Sharifa Alexander, Sylvia Bey, for herself and as guardian ad litum for Trustin Bey, Irene Burkett, for herself and as guardian ad litum for Robert Burkett, Andrea Carey, for herself and as guardian ad litum for Leslie Bonita Rex, Sheila Mitchell, for herself and as guardian ad litum for Tamika Mitchell, Elizabeth Truitt, for herself and as guardian ad litum for Leon Truitt

v.

Louis POLK, M.D., Acting Director of the Philadelphia Department of Health, Individually and in his official capacity, Pearl Pitt, M.D., WIC Coordinator Division of Maternal and Child Health, Philadelphia Department of Health, Individually and in her official capacity, David Soricelli, D.D.S., Director of Community Health Services, Individually and in his official capacity, Christine Kniszley, M.D., Director of Maternal and Child Health Programs, Individually and in her official capacity, Barry Dickman, Administrator of the WIC Program, Individually and in his official capacity, Jack Burkhardt, Administrator of the Division of Maternal and Child Health of the Philadelphia Department of Health, Individually and in his official capacity, the Department of Health of the City of Philadelphia.

Civ. A. No. 78-2594.

United States District Court, E. D. Pennsylvania.

October 31, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gregory E. Lucyk, Suzanne Reilly, Community Legal Services, Philadelphia, Pa., for plaintiffs.

James M. Penny, Jr., Asst. City Sol., Philadelphia, Pa., for defendants.

OPINION

LUONGO, District Judge.

This action challenges the administration of the Supplemental Food Program for Women, Infants, and Children (WIC), 42 U.S.C. § 1786 (Supp. V 1975), by the Philadelphia Department of Public Health (City). The plaintiffs are six women whose children had been participants in the Philadelphia WIC program. They allege that the City wrongfully terminated their children's benefits in violation of the statute, the regulations promulgated thereunder, and the Constitution. In addition to injunctive and declaratory relief, the plaintiffs pray for punitive damages in excess of $10,000 against each of the named defendants, including the city agency and its director, the administrator and the coordinator of the City's WIC program, the director and the administrator of the Division of Maternal and Child Health, and the director of the Community Health Services.

Before me is plaintiffs' motion for a preliminary injunction. Following a hearing on August 8, 1978, plaintiffs and the City entered into a stipulation which might have effectively disposed of plaintiffs' complaint except that the agreement reached by the immediate parties was contingent upon modification of an existing contract between the City and the Pennsylvania Department of Health (Department). As the City and the Department failed to reach a satisfactory accord, the hearing resumed on September 5. For the reasons stated below, I will deny the motion for preliminary injunction.

Congress enacted the special supplemental food program in 1972 as an amendment to the Child Nutrition Act of 1966. Pub. L.No. 92-433, § 9, 86 Stat. 729-31 (1972) (current version at 42 U.S.C. § 1786 (Supp. V 1975)) (amending 42 U.S.C. § 1771 et seq. (1970)).¹ Recognizing that a substantial number of pregnant women, infants, and young children faced a special health risk because of inadequate nutrition, Congress sought to ameliorate that risk by providing free nutritious foods to supplement the diets of program participants. 42 U.S.C. § 1786(a) (Supp. V 1975). Entirely federally-funded, the WIC program is administered by the Food and Nutrition Service (FNS) of the United States Department of Agriculture (USDA). Id. § 1786(b); 7 C.F.R. §§ 246.1(a), .3(a) (1978). The legislation empowers the Secretary of Agriculture to make cash grants to the health agencies of states choosing to participate. The state, in turn, contracts with local agencies in areas with needy populations to effectuate the delivery of program benefits to eligible recipients. 42 U.S.C. § 1786(b) (Supp. V 1975); 7 C.F.R. §§ 246.1(b), .3, .4 (1978). Prospective participants must reside in the area or belong to the population served by the local agency, must meet the income criteria set by the state agency, and must be determined to be in nutritional need by a competent professional authority.² 42 U.S.C. § 1786(b)(1), (e) (Supp. V 1975); 7 C.F.R. § 246.7(a)(2), (b) (1978). In order to provide the local agencies with an equitable and effective means of distributing the allocated funds, 42 Fed.Reg. 43205, 43208 (1977), the regulations enumerate six categories of nutritional need, in descending order of priority,³ to be implemented when a program reaches its maximum participation level. 7 C.F.R. § 246.7(b)(2)(ii) (1978).

In Pennsylvania, the Department is the agency charged with state-wide administration of the WIC program, and the City, by virtue of its contract with the Department, dispenses benefits locally. N.T. 16-17 (Aug. 8, 1978);⁴ Defendants' Exhibit No. 2. The City operates its program as an adjunct to a health care program and utilizes both its own district health centers and, by subcontract, independent health facilities. N.T. 109 (Aug. 8, 1978); N.T. 26 (Sept. 5, 1978).⁵ A potential WIC recipient⁶ undergoes a health assessment by a competent professional authority,⁷ who evaluates the applicant's nutritional status and makes the determination of eligibility. N.T. 110 (Aug. 8, 1978); N.T. 57-59 (Sept. 5, 1978). The certified WIC recipient then receives a prescription⁸ for the appropriate food package.⁹ N.T. 110 (Aug. 8, 1978). The prescription is in the form of a voucher, to which is attached a check drawn on the Commonwealth's account. N.T. 111 (Aug. 8, 1978); Defendants' Exhibit No. 5. The recipient designates, from the list of vendors who have agreed with the City to supply the required foods at a specific price, the grocery store at which she will exchange the voucher for the food prescribed. N.T. 110-12 (Aug. 8, 1978). The recipient has thirty days from issuance to cash in the voucher, and the vendor then has sixty days¹⁰ from the expiration date of the voucher to present the check for payment. 7 C.F.R. § 247.10(d)(3) (1978). The checks paid in a given month are reported through the state's data processing system to the Department, which relays that information to the local agency. N.T. 17-19 (Aug. 8, 1978).

The contract between the City and the Department limits the City's WIC program food expenditures to $300,000 per month, with a ceiling of $2,700,000 for the short fiscal year, which ran from October 1, 1977 to June 30, 1978.¹¹ Defendants' Exhibit No. 2, ¶ 1, at 1; id. ¶ 20, at 6. In addition, the contract imposes a limit on the City's administrative costs; reimbursement for these expenses is based on the number of food vouchers issued and is limited to approximately 12% of the food costs.¹² Id. ¶ 19, at 6. The contract recommends a monthly caseload of 15,000 recipients, with the caveat that should program participation reach caseload without maximum expenditure, the agency should accommodate more people up to the budgetary limit. Id. ¶ 2, at 1. The City's contract with the independent health care facilities tracks the City's contract with the Department with respect to duration and provides for reimbursement of the facilities' actual personnel expenses up to a maximum of 8% of the value of food vouchers issued during the monthly reporting period.¹³ Defendants' Exhibit No. 3, ¶ 9, at 3; id. ¶ 3, at 2.

In November 1977, the City conducted a head count of program participants, which revealed that the City's caseload was approximately 19,000. N.T. 117 (Aug. 8, 1978); N.T. 11 (Sept. 5, 1978). Fearing that its budget would be exhausted before the end of the contract period, the City decided to implement the priority system. N.T. 117, 120-24, 137-38 (Aug. 8, 1978). In a memo dated December 20, 1977, addressed to the district health directors and nursing and clerical supervisors, Dr. Pearl Pitt, the City WIC coordinator, directed not only that certification of postpartum women and children who had reached age four be discontinued but also that these categories of recipients be removed from the program. Defendants' Exhibit No. 8. On December 30, 1977, Dr. Pitt similarly instructed the directors of the independent health care facilities to remove from the program postpartum women and children over four years of age with no medical problems; she also limited the permissible caseload of each facility. Defendants' Exhibit No. 9 to 19. When those WIC recipients designated for removal next appeared to obtain their vouchers, they were informed that they were to be removed from the program; they were, however, issued a food prescription at that time. N.T. 64 (Sept. 5, 1978). The City concedes that at the time of removal, plaintiffs received neither written notice of the reasons for the action nor an opportunity for a hearing. N.T. 13, 149 (Aug. 8, 1978).

Plaintiffs challenge the City's implementation of the priority system on several grounds. First, they allege that the categorical removals deprived plaintiffs of their right under section 1786(e) to have their eligibility individually determined by a competent professional authority. Second, they argue that the City's action contravenes the regulations promulgated by the FNS under section 1786 in several respects. They contend that the City was powerless, absent an express directive from the state, to implement the priority system; that the City program was not at maximum capacity and circumstances did not thus necessitate the City's action; and finally, that the manner of implementation, specifically, the removal of the four-year-old children, created a priority within a priority that is inconsistent with the regulations. They also contend that the regulations require the City to provide...