Smith v. Vowell

• Citation: 379 F. Supp. 139
• Decision Date: 27 June 1974
• Docket Number: Civ. A. No. SA-72-CA-285.
• Parties: Benjamin Edward SMITH et al. v. Raymond W. VOWELL et al.
• Court: U.S. District Court — Western District of Texas

379 F. Supp. 139

Benjamin Edward SMITH et al. v. Raymond W. VOWELL et al.

Civ. A. No. SA-72-CA-285.

United States District Court, W. D. Texas, San Antonio Division.

June 27, 1974.

COPYRIGHT MATERIAL OMITTED

Barry Snell, Stanley Dalton Wright, Melvin N. Eichelbaum, Bexar County Legal Aid Association, San Antonio, Tex., for plaintiffs.

Robert W. Gauss, Asst. Atty. Gen., Austin, Tex., for defendants.

William S. Sessions, U. S. Atty., Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, Tex., John B. Rhinelander, Gen. Counsel, Dept. of Health, Ed. and Welfare, Washington, D. C., John M. Stokes, Regional Atty., office of Gen. Counsel, Dept. of Health, Ed. and Welfare, Dallas, Tex., for HEW.

OPINION

CLARY, Senior District Judge.

This is a class action brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4) seeking injunctive and declaratory relief pursuant to 28 U.S.C. § 2201 and § 2202 against the State of Texas and its Department of Public Welfare for their alleged failure to comply with the provisions of the Social Security Act of 1935, 42 U.S.C.A. §§ 1302, 1351 et seq. and 1396 et seq. and the regulations promulgated thereunder, 45 C.F.R. 249.10(a)(5) in the operation of the state Medicaid program (Title XIX). The jurisdiction of this Court is unchallenged. Plaintiffs allege in this case of virtually first impression¹ that the State of Texas has failed to promulgate a "state plan" for medically necessary transportation for the recipients of Medicaid in conformity with 42 U.S.C.A. supra² and 45 C.F.R. supra and the named plaintiff alleges that, as a result, he, individually, for a period of years³ has lacked such transportation to providers of necessary medical treatment. Although the plaintiffs do not so allege, such lack of compliance with the applicable Federal law would also be in violation of Article VI of the Constitution, the Supremacy clause.⁴ The named plaintiff further seeks retroactive benefits for himself.

Ancillary relief is also sought to declare that the dismissal for being out of time⁵ of the named plaintiff's administrative appeal from the Department's denial of transportation violates the Due Process Clause of the Fourteenth Amendment, the Social Security Act, 42 U.S.C. 139.(a)(3), the regulations promulgated thereunder, 45 C.F.R. § 205.10(a)(3)(ii), and the Department's own Administrative Procedures Handbook, Section 1212 and the Texas Medical Assistance Act of 1967, Vernon's Tex. Rev.Civ.Stat.Ann. art. 695j-1, Sec. 9. Injunctive relief is also sought on behalf of the alleged class of those persons who complain of Department denials of financial or medical benefits of a continuing nature and whose complaints are similarly dismissed for being out of time.

The case was tried upon a stipulated set of facts incorporating the named plaintiff's factual allegations in his pleadings, the attached exhibits, the defendant's answer and the affidavit and accompanying exhibits of defendant Vowell, the deposition of defendant Zalaznick and the exhibits attached to the stipulations. No witnesses were called.

Nevertheless, since the central question in this case is the proper interpretation of the regulations administered by the Department of Health, Education and Welfare (hereinafter HEW), this Court has followed the command of the Supreme Court in Rosado v. Wyman, supra, 397 U.S. at 407, 90 S.Ct. 1207,⁶ and has asked HEW to lend its expertise and to file a Brief of Amicus Curiae which has been so submitted to the Court.

I. STATEMENT OF THE CASE

The named plaintiff, Benjamin Edward Smith, 24 years old, has been a victim of spastic cerebral palsy (Stipulation 3) since birth and has been a recipient of categorical assistance, Aid to the Permanently and Totally Disabled (APTD) (Stipulation 2), under the Title XIX Medicaid Program since April 3, 1969. The plaintiff has been a ward of the state since he was two years old (April 15, 1953) (Stipulation 6); he has no family and no resources other than those provided by the State (Stipulation 4). He lived entirely in various foster homes until 1969 when he reached the aid requirement for Medicaid and since then he has lived entirely in various nursing homes and hospitals (Stipulation 7).

Benjamin Edward Smith is totally disabled. He is confined to a wheelchair — which he cannot operate himself. His doctor describes him as requiring "total care" (Stipulation 11): He is palsied to the extent that he can neither walk, feed, nor dress himself — nor perform any other normal daily functions without assistance (Stipulation 9). Nor, apparently, can he speak without difficulty.⁷

In addition to his primary illness, plaintiff Smith suffers from numerous secondary including chronic peptic esophagitis, disphagia, and a neurogenic bladder which has required the construction of an artificial bladder (Stipulation 10). The complexity and severity of his disorders is of such a magnitude that no single doctor or clinic is capable of treating him.

His visits to doctors and clinics require transportation at least three (3) days a week (see attached chart — Appendix I — stipulated to by the parties) in addition to emergency transportation for recurrent urinary and ear problems.

Consequently, the gravamen of the named plaintiff's complaint is that ". . . The State Department of Public Welfare is unable to assure the availability of transportation of plaintiff to and from the providers of medical services." (Stipulation 35; see also Stipulation 36).

The plaintiff, for example, requires visits⁸ to rehabilitation therapy twice a week; to the Gastroenterology Clinic once a month; to the Orthopedic Clinic once a month; to the Hand Clinic once a month; to a private urologist at least once a month.^8a The combined trips total somewhere between twelve-fifteen trips per month^8b excluding emergencies and visits to the Hand Clinic and Adult Neurology Clinic scheduled every three months. It has been stipulated that each of these treatments requires transportation to and from (Stipulation 13), and we also take judicial notice that the day of the house call is long since gone. Moreover, it has been stipulated that the named plaintiff requires some kind of transportation, e. g., ambulance, van, or truck with an hydraulic lift, that would allow him to remain in his wheelchair or be carried by litter (Stipulation 14). It has further been demonstrated⁹ that since 1970 the State has provided ambulance service on a total of four occasions.

Benjamin Smith's total monthly income of $25.00 from his "Personal Needs" allowance¹⁰ provided by the State is insufficient to pay for even one ambulance trip per month (Stipulation 15) (ambulance rates are $40.00 per round trip plus $10.00 per hour waiting time — (Stipulation 29) even if such an expenditure by a welfare recipient were permissible under the Social Security regulations which it may not be anyhow.¹¹

Moreover, the only kind of transportation which plaintiff Smith can afford — taxicabs — is both too little (he can only afford one or two taxi trips per month (Stipulation 16); too inadequate (he cannot remain in his wheelchair but must be "lifted in and out of taxicabs like a lifeless manikin" in his lawyer's chilling words); ¹² & ¹³ too dangerous (one taxicab driver broke the plaintiff's foot by catching it in his wheelchair as he was lifting the plaintiff in and out of the cab);¹⁴ and, finally, not even then available with some degree of assurance, for some drivers upon observing the plaintiff's plight have refused to permit him in their cabs.¹⁵

We must now turn to the transportation capability of plaintiff Smith's friends and of volunteer organizations, as the above cited Medical Assistance Manual MSA-PRG-17, "Transportation of Recipients" id., mandates that the states are to hold down the costs of medical transportation of the needy by the utilization of volunteer resources whenever possible:

"Although the State has an obligation to assure that transportation will be available for recipients to and from medical care, it also has an obligation to assure that payment is made only where transportation is not otherwise available. If neighbors, friends or voluntary organizations have been providing a service it is reasonable to expect them to continue except in the face of markedly changed circumstances or evident hardship." "Implementation of Regulation; D. Administrative Controls."

This issue has, however, been expressly settled by stipulation. Stipulations 31-35 provide a summary of the volunteer efforts and corresponding failures¹⁶ to transport the named plaintiff to and from his medical providers. Personal friends, Red Cross, VISTA, F. I.S.H., nursing homes, the Easter Seal Foundation and other volunteer agencies have all been tried and individually and collectively, have been found wanting.¹⁷ Nor, apparently, are the hospital personnel (and one would assume the clinic personnel as well) prepared to undertake this task.¹⁸

The Department's own caseworkers were unable to obtain regular transportation for plaintiff Smith¹⁹ and in the words of the State Appeals Analyst who dismissed his appeal, "he the caseworker ran up against a blank sic wall in his attempt to obtain transportation."²⁰ Similarly, the plaintiff's attorneys and their staff attempted and failed to obtain the necessary transportation.²¹

Finally, the plaintiff's doctors appear to be gravely concerned with his transportation difficulties as having a direct and causally injurious effect upon the course of his medical treatment. Dr. Kenneth B. Washburn of the University of Texas Medical School writes: "The greatest problem . . . for this patient has been the inability to carry through with a complete program due to transportation difficulties."²² (emphasis added).

Dr. Charles L. Simpson also of the University of Texas Medical School and the Bexar County Hospital District writes of the plaintiff: "He appears to be well motivated and very interested in his occupational...