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February 25, 1982

Linda INGRAM, et al.
Helen B. O'BANNON, et al.

The opinion of the court was delivered by: HUYETT


The plaintiff class consists of all those residing in Philadelphia who are or will be eligible for homemaker service, who have requested or will request this service, and who have not received or will not receive it. Within the class, the plaintiffs fall into two groups, applicants and former recipients. *fn1" The applicants are those persons who are eligible to receive the service based upon their financial status and need for the service. They have requested the service but have not received it. Their requests are placed on waiting lists until a homemaker is available. If they request the service for a specific time and the time passes without the service being made available to them, then their request is canceled. The complaint of the applicants is two-fold: (1) because they meet the pertinent financial and need standards, they contend that they are entitled to receive the service with reasonable promptness which in some cases means immediately, and (2) if they do not receive the service with reasonable promptness, then procedural due process requires that they receive notice and the right to appeal. The defendants contend based upon the language of the state regulation that the plaintiffs do not have an entitlement to the service and therefore, have not been denied due process.

 The second group within the class are persons who until recently received the service but whose service was terminated because of a reduction in federal funding. The former recipients' claim is the same as the applicants' first claim: as long as the state continues to offer the service and the plaintiffs meet the financial and need standards, they are entitled to receive the service. The former recipients do not press a procedural due process claim. The former recipients were notified that their service was being terminated and that they would be referred to another social service agency. They were given notice of their right to appeal the termination. The benefits of those who appealed were continued pending the resolution of all appeals. All of the appeals decisions were in favor of the secretary of the Pennsylvania Department of Public Welfare (DPW). By agreement the benefits were continued until February 11, 1982, the date of a hearing before me on plaintiffs' request for a preliminary injunction.

 On Thursday, February 11, 1982, following a hearing in open court I denied the plaintiffs' request for a preliminary injunction. Before me now are the parties' cross-motions for summary judgment. *fn2" For the same reasons that I concluded that the plaintiffs had failed to show a likelihood of success on the merits at the preliminary injunction hearing, I conclude that the defendants' motion for summary judgment should be granted. This opinion memorializes my reasons for denying the plaintiffs' motion for a preliminary injunction as well as their motion for summary judgment, and for granting defendants' motion.

 The first issue to be determined is whether the plaintiffs have an entitlement to homemaker service. Plaintiffs contend that they have a property interest in receiving the service which is protected by the due process clause. Because I conclude that there is no entitlement to the service, I do not reach the applicant-plaintiffs' procedural due process argument. I recognize that all persons have an interest flowing directly from the due process clause to be free from arbitrary and capricious government action. See Block v. Potter, 631 F.2d 233 (3d Cir. 1980). Therefore, I have considered whether the state's actions are arbitrary and capricious. I conclude that they are not.

 Any property interest that the plaintiffs might have had would have been created by the legislation and regulations governing homemaker service. Originally, this action was governed by 42 U.S.C. § 1397 (amended 1981), Title XX of the Social Security Act, entitled "Grants to States for Services." The Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, § 2351, 95 Stat. 867 rewrote Title XX of the Social Security Act. The new Title XX is titled "Social Services Block Grant Act" (Block Grant Act). The goals of Title XX remain the same, however, the amendment substantially changes the states' administrative responsibilities. The Block Grant Act no longer requires the states to provide at least one service addressing each of the five goals of Title XX. States are no longer required to adopt state Plans but instead are to submit Reports to the federal government on how the grant is being used. The Block Grant Act relaxes the procedure by which states alter their lists of services offered. Under the Block Grant Act the states are no longer required to provide matching funds. The states are no longer required to spend a specific portion of their grants on welfare recipients. They are no longer limited in their ability to charge fees for social services, and no longer prohibited from providing services to families with incomes that exceed 115% of the states' median income. Title XX was always designed to give the states great flexibility in the delivery of social services. The 1981 amendment was adopted "in order to eliminate burdensome restrictions on programs and to give the States the increased flexibility they need to target resources on problems which they regard as most important." 1981 U.S.Code Cong. & Adm.News 396, at 799 (Senate Report). Because the plaintiffs seek prospective relief only, the Block Grant Act, the current version of Title XX, applies to their claims.

 In conjunction with the amendment of Title XX, the secretary of U.S. Department of Health and Human Services (HHS) revised the existing regulations relating to Title XX. See 46 Fed.Reg. 48,582 (Oct. 1, 1981) (to be codified at 45 C.F.R. §§ 16, 74, & 96). The new regulations state that they are intended to lift the regulatory burden on the grantee states. Id. at 48,593. Before Title XX's amendment, the regulations governing it appeared at 45 C.F.R. § 1396. The prior regulations were extensive. They established procedures, content requirements for state plans, reimbursement rates, and limitations on individuals served, eligibility and fees. The section on eligibility was central to the parties supplementary memoranda in support of their motions. This regulation no longer exists. Furthermore, the secretary did not replace the removed regulations with comparable ones because:

(t)he Secretary has determined that the Department should implement the block grant programs in a manner that is fully consistent with the congressional intent to enlarge the States' ability to control use of the funds involved. Accordingly, to the extent possible, we will not burden the States' administration of the programs with definitions of permissible and prohibited activities, procedural rules, paperwork and recordkeeping requirements, or other regulatory provisions.

 46 Fed.Reg. at 48,582.

 The state of Pennsylvania also reacted to the Block Grant Act by enacting new regulations. First, the state repealed all pertinent parts of its Title XX state Plan. In its place, the state published a new Report and regulations implementing the Block Grant Act. See 11 Pa. Bulletin 3901 (Oct. 31, 1981). These regulations govern the state's use of Title XX monies to provide approximately twenty-two services, one of which is homemaker service. The plaintiffs agree that neither the federal statute nor the federal regulations give them an entitlement to the service. They rely upon the state regulations to create an entitlement to homemaker service. In other words, the plaintiffs contend that they have a property interest in receiving homemaker service which is protected by the due process clause. Without such a protected interest, even a "grievous loss" will not implicate the due process clause. Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451 (1976). The Supreme Court has stated: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). The Court continued:

(property) interests are not, of course, created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

 Id. Receipt of a government benefit can constitute a property interest. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1968) (welfare benefits). However, not every benefit program creates a property interest. Where the plaintiffs allege that the interest is created by statute or regulation, a close examination of the provisions of the statute or regulation is required. See O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980). Those provisions both create the interest and define its scope. Therefore, I turn to the Pennsylvania regulations relating to homemaker service.

 Homemaker service is one of twenty-two services that the DPW makes available through the use of its Title XX block grants. Homemaker service "consists of activities provided in the person's own home by a trained, supervised homemaker when there is no family member or other responsible person available and willing to provide such services or to provide occasional relief to the person regularly providing such service." 11 Pa.Bulletin at 3905. Homemakers provide such services as cooking, cleaning, handling simple financial matters and providing non-medical personal care of the recipient.

 With respect to homemaker service the regulations provide that one is financially eligible if one is either a current recipient of Aid to Families with Dependent Children (AFDC), or current recipient of Supplemental Security Income (SSI), or current recipients of State-funded General Assistance or a primary recipient whose family monthly gross income does not exceed 50% of the State median income, adjusted according to family size. 11 Pa. Bulletin 3922 (Oct. 31, 1981) (to be codified at 55 ...

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