Herweg v. Ray, Civ. No. 77-222-1.

• Decision Date: 10 July 1978
• Docket Number: Civ. No. 77-222-1.
• Parties: Elvina M. HERWEG, by her husband and next friend, Darrell E. Herweg, and Darrell E. Herweg, and all others similarly situated, Plaintiffs, v. Robert D. RAY, Individually and in his capacity as Governor of the State of Iowa, and Kevin J. Burns, Individually and in his capacity as Commissioner of the Iowa Department of Social Services, Defendants.
• Court: U.S. District Court — Southern District of Iowa

481 F. Supp. 914

Elvina M. HERWEG, by her husband and next friend, Darrell E. Herweg, and Darrell E. Herweg, and all others similarly situated, Plaintiffs, v. Robert D. RAY, Individually and in his capacity as Governor of the State of Iowa, and Kevin J. Burns, Individually and in his capacity as Commissioner of the Iowa Department of Social Services, Defendants.

Civ. No. 77-222-1.

United States District Court, S. D. Iowa, C. D.

July 10, 1978.

COPYRIGHT MATERIAL OMITTED

Gill Deford, Neal S. Dudovitz, Los Angeles, Cal., Robert L. Bray, Des Moines, Iowa, for plaintiffs.

Richard C. Turner, Atty. Gen. of Iowa, Stephen C. Robinson, Sp. Asst. Atty. Gen., Des Moines, Iowa, for defendants.

RULING AND ORDER

STUART, Chief Judge.

On January 19, 1978 this Court entered a Memorandum Opinion and Order which granted plaintiffs' request for class certification, their motion for summary judgment and their request for a permanent injunction against state "deeming" procedures. Herweg v. Ray, 443 F.Supp. 1315 (S.D.Iowa 1978). On March 17, 1978 plaintiffs filed a request with this Court seeking an Order which would set forth specifically the contours of relief to which plaintiffs were entitled. Defendants joined in this motion on March 22, 1978 and at the same time filed a brief which argued against retroactive application of the Court's affirmative relief set forth in the January 19, 1978 Order. Plaintiffs responded on March 31, 1978 and the matter came on for hearing on April 27, 1978. Appearing for plaintiffs were Gill Deford and Robert Bray. Appearing for defendant was Stephen Robinson. Supplemental briefs were filed May 10 and June 27 by plaintiffs and defendants respectively. The Court now considers the matter fully submitted.

Three primary issues remain to be resolved: (1) the contents of the class notice; (2) the question of retroactive application of the Court's original ruling; and (3) the sufficiency of defendant's modified procedures pursuant to the statutes and this Court's Order. These issues will be discussed in inverse order.

Proposed revised procedures of the State Department of Social Services provide generally for disregarding of certain income and for the individualized determination of the amount of a non-institutionalized spouse's income which is in fact reasonably available for the support of the institutionalized spouse. Plaintiffs contend that adequate provision is not made for the disregarding of Social Security benefits, 42 U.S.C. § 407, Railroad Retirement Board annuities, 45 U.S.C. § 231m, and Civil Service Commission annuities, 5 U.S.C. § 8346(a). Plaintiffs also claim "the strong possibility remains, given the bland nature of these instructions, that workers will simply use the work sheet as their format and not bother to determine whether other expenses could be deducted".

The Court agrees that the three specific items noted above should be specifically mentioned in the revised State procedures. With this exception, the procedures are satisfactory. The comment to section 4(e) provides "the items listed are not intended to be all inclusive or in any way a limitation". The Department of Social Services employs trained individuals who, in cooperation with affected individuals, make independent determinations of income and expense items. The Court will not assume that certain items of income, properly exempt under various federal provisions, will be included as income or that proper expenses will not be allowed. Should either event occur proper procedures are certainly available within the administration of the Department of Social Services without detailed and continual federal court supervision.

Plaintiffs major dispute with the revised procedures concerns what is perceived by them to be continued "deeming" of income to be available from the non-institutionalized spouse for the institutionalized spouse's care. Plaintiffs take issue with revised procedures which, as an initial premise, combine incomes of the institutionalized and non-institutionalized spouse and, only after such combination has been made, make provision for the reasonable requirements of the non-institutionalized spouse. Plaintiff argues that any available income of the non-institutionalized spouse cannot automatically be "deemed" available unless it is actually contributed and that contribution can be compelled only through relative responsibility laws which would place the burden to pay on the non-institutionalized spouse without jeopardizing the qualification status of the institutionalized spouse.

The Court disagrees with the plaintiffs. Although such a procedure might be possible under the relevant statutes, the State has undertaken the responsibility of formulating a plan that also complies with the applicable statutes. The existence of alternative procedures is irrelevant. Title 42 U.S.C. § 1396a(a) provides:

A State plan for medical assistance must — (17) include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and . . . (C) provide for reasonable evaluation of any such income or resources . . .

In the Court's opinion the proposed State plan involved herein adequately fulfills these objectives. In its original Order this Court recognized that, although a State may not "deem" income to be available by use of an arbitrary formula, this does not mean...