Friedman v. Berger

• Decision Date: 17 March 1976
• Docket Number: No. 75 Civ. 6485.,75 Civ. 6485.
• Citation: 409 F. Supp. 1225
• Parties: Ruth FRIEDMAN et al., v. Stephen BERGER, Individually and as Commissioner of the New York State Department of Social Services, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

409 F. Supp. 1225

Ruth FRIEDMAN et al., v. Stephen BERGER, Individually and as Commissioner of the New York State Department of Social Services, et al., Defendants.

No. 75 Civ. 6485.

United States District Court, S. D. New York.

March 17, 1976.

John C. Gray, Jr., Brooklyn Legal Services Corp. B, Brooklyn, N.Y., for plaintiffs; John M. Fredenburg, Los Angeles, Cal., National Health Law Program, of counsel.

Louis J. Lefkowitz, Atty. Gen., New York City, for defendants Stephen Berger and New York State Dept. of Soc. Serv.; Robert S. Hammer, Asst. Atty. Gen., New York City, of counsel.

WYATT, District Judge.

This is a motion by plaintiffs for an order (a) "certifying" (determining) that this action may be maintained as a class action (Fed.R.Civ.P. 23(c)(1)) and (b) granting a preliminary injunction restraining the alleged unlawful enforcement of Section 360.5(e) of Title 18 of the official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR).

1.

In 1965, Congress added a new Title XIX to the Social Security Act (42 U.S.C. § 1396 and following). This was entitled "Grants to States for Medical Assistance Programs" and apparently has come to be called "Medicaid".

The 1965 addition provided for payments by the federal government to states which submit and secure approval by HEW of state plans for medical assistance. New York is such a state.

The Medicaid statute provides through the states for "medical assistance on behalf of . . . aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services . . ." (42 U.S.C. § 1396).

The Medicaid statute (as is true of other parts of the Social Security Act) is an aggravated assault on the English language, resistant to attempts to understand it. The statute is complicated and murky, not only difficult to administer and to interpret but a poor example to those who would like to use plain and simple expressions. The present motion must be decided, however, and what follows is the result of best efforts to find the meaning of the Medicaid statute and other relevant statutes and regulations.

2.

The case at bar deals with two groups eligible for Medicaid assistance, the "categorically needy" and the "medically needy". The quoted terms come from federal regulations cited hereafter.

The eligibility of the two groups is based on provisions of the Medicaid statute (42 U.S.C. § 1396a(a)(10) and (17)) and the related New York statute (Social Services Law § 366(1)(a)(2) and (5)).

3.

By federal law, the state plans for medical assistance must provide "for making medical assistance available to all individuals . . . with respect to whom supplemental security income benefits are being paid under subchapter XVI of this chapter" (42 U.S.C. § 1396a(a)(10)(B)).

"Subchapter XVI of this chapter" provides for "Supplemental Security Income for Aged, Blind and Disabled" (42 U.S.C. §§ 1381-1383c). Eligible individuals are those aged, blind, or disabled whose income does not exceed $1752 per year (42 U.S.C. § 1382(a)(1)). Money benefits are payable; these are usually called Supplemental Security Income benefits or "SSI benefits".

Federal regulations describe those who are "categorically needy" in relevant part as follows (45 CFR § 248.1(a)(1)(i)):

"In order to be considered as categorically needy for purposes of the Medicaid statute an individual must in general be receiving financial assistance or sufficiently in need to be financially eligible for financial assistance under title . . . XVI of the Social Security Act . . .".

The New York plan for medical assistance is provided for in Title 11 of Article 5 of the Social Services Law ("SSL") (§§ 363-369).

SSL § 366(1)(a)(2) provides for medical assistance to persons who are "receiving or . . . eligible to receive federal supplemental security income payments . . .." This seems to cover the "categorically needy".

4.

By federal law, the state plans for medical assistance may provide "for making medical assistance available to all individuals who would, except for income and resources, be eligible . . . to have paid with respect to them supplemental security income benefits under subchapter XVI of this chapter, and who have insufficient . . . income and resources to meet the costs of necessary medical and remedial care and services . . ." (42 U.S.C. § 1396a(a)(10)(C)(i)).

The reference to "subchapter XVI" etc. is to SSI benefits already explained.

Federal regulations describe those who are "medically needy" as follows (45 CFR § 248.1(a)(2)(i)):

"An individual is considered to be medically needy if he has income and resources which exceed the amount of income and resources allowed to the categorically needy but which are insufficient to meet the costs of necessary medical and remedial care and services."

The New York plan provides for medical assistance to the medically needy but does not describe them exactly as does the quoted federal regulation. SSL § 366(1)(a)(5) provides for medical assistance to a person who

". . . although not receiving nor in need of public assistance or care for his maintenance under other provisions of this chapter, has not, according to the criteria and standards established by this article or by action of the department, sufficient income and resources, including available support from responsible relatives, to meet all the costs of medical care and services available under this title, and is either (i) under the age of twenty-one years or over the age of sixty-four years or (ii) a spouse of a cash public assistance recipient living with him and essential or necessary to his welfare and whose needs are taken into account in determining the amount of his cash payment or (iii) for reasons other than income or resources, is eligible for aid to dependent children or federal supplemental security income benefits and/or additional state payments; . . .."

This seems to cover in substance the "medically needy".

5.

If a person receiving SSI benefits is in a hospital, skilled nursing facility or intermediate care facility receiving Medicaid assistance the SSI benefits are $300 per year or $25 per month (42 U.S.C. § 1382(e)(1)(B); 20 CFR § 416.231(a)(2)). In determining eligibility for SSI benefits (income of no more than $1752 per year), the first $240 per year of income (or $20 per month) is excluded. 42 U.S.C. § 1382a(b)(2) The combined effect of the cited statutes and regulation — according to the plaintiffs — is that a "categorically needy" individual (one receiving SSI benefits) who is in a hospital or other institution in New York and receiving Medicaid assistance and who has income of at least $20 per month, is able to retain $45 per month for personal needs. This is not true, as will be seen. If any such individuals are in fact retaining $45 per month for personal needs, it is not because of the cited statutes and regulation (or any others).

The question may be asked at this point: if a "categorically needy" person in an institution for chronic care has income of more than the sum retained for personal needs but less than $1752 per year (the maximum income beyond which a person is ineligible for SSI benefits, 42 U.S.C. § 1382(a)(1)), what happens to the difference?

Counsel have not supplied any answer to this question and have cited nothing from the Medicaid statute on the point.

The federal regulations require that the state plan must provide that individuals in "long term care facilities" apply their income "first to personal needs" and then "for the application of the remainder to the cost of medical or remedial care". 45 CFR § 248.3(b)(5).

Counsel have not cited anything in SSL which deals with the matter and a study of its provisions discloses nothing which seems to be relevant.

The state regulations, however, include a provision, that which is attacked in this action, which provides that all resources of Medicaid recipients in excess of $28.50 per month (with irrelevant exceptions) must be used to meet the cost of their medical assistance (that is, must be turned over to the state or to the medical institution). This provision is in 18 NYCRR § 360.5(e) and in relevant part reads as follows:

"If an applicant or recipient is receiving chronic care in a medical institution or intermediate care facility, all resources in excess of those exempt from consideration in accordance with paragraph (a) of subdivision 2 of section 366 of the Social Services Law and $28.50 per month for personal expenses shall be utilized to meet the cost of medical assistance for that applicant or recipient and for maintenance needs of the dependent members of his former family household."

This seems to mean that as to the "chronically needy" all income above $28.50 per month (and of course below $1752 per year because no "categorically needy" person could have more than that) "shall be utilized to meet the cost of medical assistance . . ." etc. It seems equally to mean that as to the "medically needy" all income above $28.50 per month "shall be utilized to meet the cost of medical assistance . . ." etc.

In calculating the excess of $28.50, there are the exemptions specified in SSL § 366(2)(a). These include income of $2700 for a single person and increasing income amounts if there are more "family members". However, according to the regulation — 18 NYCRR § 360.5(e) — a Medicaid recipient "receiving chronic care in a medical institution" does not count as one of the "family members" and thus a single person would not have any income exemption, a person with one family member would have a $2700 income exemption, and upwards from that amount for additional family members.

It appears, therefore, that according to the state regulation, a single person receiving chronic care in a medical institution would be able to keep "for personal expenses"...