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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

PAUL SHAFER and JOSHUA HARDER, Individually and on behalf of all other persons similarly situated,

: :

CIVIL ACTION NO. 3:12 CV-00039 (AWT)

: Plaintiffs : v. : : : : RODERICK BREMBY, in his : official capacity as Commissioner of : the Connecticut Department of Social Services, : : Defendant. :

December 17, 2012

CLASS ACTION

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS Plaintiffs file this supplemental memorandum to bring to the Court’s attention that, on December 4, 2012, a decision was rendered by United States District Judge Vanessa Bryant in the companion case of Briggs v. Bremby, 3:12-cv-00324 (VLB)(D. Conn.)(hereinafter, “Decision”), that directly impacts both of the pending preliminary injunction motions in the instant case. The Briggs plaintiffs challenged delays by the Connecticut Department of Social Services in the processing of applications for benefits under the Supplemental Nutrition Assistance Program (“SNAP”), commonly known as the “Food Stamp” program. As in the instant case, the Briggs plaintiffs’ claims are based primarily on state data on delays generated by defendant’s Eligibility Management System (EMS). As he did in the instant case, the defendant Commissioner responded to the Briggs lawsuit with a motion to dismiss, claiming that the timeliness provisions of the Food Stamp Act at issue in that case did not create enforceable rights

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under 42 U.S.C. § 1983, as determined by the U.S. Supreme Court in Gonzaga v. Doe, 536 U.S. 273 (2002). In addition to a motion to dismiss with parallel arguments regarding the enforceability of the timeliness requirements of the Food Stamp Act, the defendant Commissioner defended against the Briggs plaintiffs’ claims for preliminary injunctive relief with arguments that parallel the ones raised in the instant case. Conceding in both cases – as he must – the existence of a “systemic problem which [DSS] has been working to resolve for several years,” Decision at 33, he sought to defeat the granting of preliminary injunctive relief in Briggs with the same arguments made against preliminary injunctive relief in the instant case: first, that the serious untimeliness rate must be considered with data his agency has collected in connection with Alvarez v. Commissioner of Income Maintenance, No. B-90-190 (WWE), which, he asserted, shows that a significant amount of delay is “excused”; second, that he is only required to show “substantial compliance” with the timeliness requirements of the Food Stamp Act, not full compliance; and, third, that preliminary injunctive relief is not necessary in light of claimed improvements in staffing and plans for the modernization of outdated technology. In a thorough and well-reasoned decision, Judge Bryant addresses these parallel issues, ultimately denying the defendant Commissioner’s motion to dismiss and granting the plaintiffs’ motion for a preliminary injunction.1 This memorandum addresses some of the many aspects of the Briggs ruling that directly support the plaintiffs’ claims herein. Given that the relief sought by the Briggs plaintiffs with respect to improving the timeliness of processing food stamp applications will necessarily overlap with, and impact, the relief sought by the plaintiffs herein regarding the processing of Medicaid applications, plaintiffs ask this Court to expeditiously grant The Court has scheduled a further “status conference/hearing” on December 21, 2012 to address, inter alia, the specifics of injunctive relief.
1

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their motion for preliminary injunctive relief,2 which presumably also means denying the pending motion to dismiss.3 Briggs Decision on Motion to Dismiss As in the instant case, the defendant Commissioner asserted that the Briggs plaintiffs were not likely to succeed on the merits of their untimeliness claims because the provisions of the Food Stamp Act they seek to enforce do not create enforceable rights under 42 U.S.C. § 1983 based on the Supreme Court’s decision in Gonzaga. Although the Food Stamp provisions in Briggs are different from the provisions of 42 U.S.C. § 1396a(a)(8) at issue in this case, the defendant Commissioner makes the same arguments in Briggs as in the instant case. Specifically, he claims that Gonzaga requires the Court to consider the overall structure of the Food Stamp Act in determining the enforceability of its specific timeliness provisions, that there is inconsistency in the Second Circuit’s application of Gonzaga’s requirements and that the wording of the statute defeats a finding of enforceability. The Briggs decision addresses – and easily disposes of -- each of the defendant Commissioner’s arguments against the enforceability of the food stamp timeliness provisions. Of particular note to the instant case, the Court’s decision in Briggs states that:

2

The same limited pool of DSS eligibility workers currently process both food stamp and Medicaid applications using the same outdated EMS system, and both application systems will be impacted by the promised “modernization” changes in the way in which DSS processes applications for public assistance benefits.
3

However, it is not necessary for the Court to actually rule on the motion to dismiss to grant the preliminary injunction motions. It could determine that plaintiffs are likely to prevail on the enforceability of their Section 1983 claim, and grant the motions on that basis. See, e.g., Davis v. Shah, 2012 WL 1574944, at *6-8 & note 3 (W.D.N.Y May 3, 2012).

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The requirement in the Food Stamp Act (7 U.S.C. § 2020(e)(3) and (9)) for the processing of food stamp applications and the provision of such benefits within 30 days [7 for expedited food stamps] “unambiguously provides a precise benefit to identifiable individuals unlike FERPA’s provision directing that funds not be made available to an agency which has a prohibited policy or practice.” Decision at 20.

The Second Circuit’s approach to Gonzaga has not been inconsistent, as defendant claims based on the decisions in Rabin v. Wilson-Coker, 362 F.3d 190 (2d Cir. 2004), and Taylor v. Vermont Dep’t of Education, 313 F.3d 768 (2d Cir. 2002). “[T]his Court agrees with the Williston court that ‘when comparing the outcomes in Rabin and Taylor, the Circuit did not reach different outcomes when applying the Gonzaga test to like statutes. Rather, the Circuit arrived at different outcomes because the statutes at issue were different.’” Decision at 20, n. 2, citing Williston v. Eggleston, 410 F.Supp. 2d 274, 277 (S.D.N.Y 2006).

The meaning of the provision does not depend on the ordering of the words. As the Briggs court noted, enforceability is not precluded merely because “phrases constituting the sentence were simply reversed to specify that eligible individuals shall be provided with the benefit within the specified time-frames by the State agency under the plan of operation.” Decision at 21.

The availability of an overall administrative enforcement mechanism, with an aggregate focus,4 does not preclude enforcement of other provisions that focus on

4

In the Medicaid Act, this statute is 42 U.S.C. § 1396c, which the defendant Commissioner asserted (as he did in Briggs) undercuts the availability of individual enforcement of discrete provisions that create individual rights.
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the needs of identified individuals and not on the aggregate practices of the State. Decision at 24-26. Briggs Decision on Motion for Preliminary Injunction. As is true in the instant case, the plaintiffs in Briggs sought a preliminary injunction requiring the defendant Commissioner to process Food Stamp applications within the applicable statutory time frames (30 days for regular Food Stamps and 7 days for expedited Food Stamps). The Briggs plaintiffs rely on the same state-provided EMS data on timeliness on which the plaintiffs herein rely and have presented to the Court.5 Significantly, while there is no question that Food Stamp applications are processed in a grossly untimely manner, the percentage delays identified in Briggs are not nearly as serious as the percentage delays identified in the instant case for Medicaid applications. In Briggs, the percentage of applications for regular Food Stamps pending beyond the statutorily prescribed timelines between August 2010 and February 2012 ranged from 18% to 40%. During that same time period, the percentage of applications for Medicaid that were so delayed ranged from 38% to 55%, and today they are fluctuating around that 55% figure, which was also the delay rate at the time this case was filed in January of 2012. Exhibit A to Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunctive Relief (January 9, 2012)(Document 3); Exhibit F to Plaintiffs’ Memorandum in Support of Second Motion for Preliminary Injunctive Relief (October 18, 2012)(Document 50). As is true in Briggs, “[t]he low levels of timeliness rates are persuasive evidence that the state has failed to provide [Medicaid] benefits in compliance with the unambiguous mandates of [42 U.S.C. § 1396a(a)(8)].” Decision at 35-36. This data is taken from monthly DSS “Application Length Pending Report,” DMF 8030A-DMF 80271, pp. 239-40, and DSS “Pending Overdue Application Report.”
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These abysmal untimeliness rates not only demonstrate the need for an injunction requiring compliance with the requirements of 42 U.S.C. §1396a(a)(8) and its corresponding timeliness regulations, but they also demonstrate the need for an immediate injunction against the defendant voluntarily seeking federal approval for complex new eligibility requirements that will worsen these untimeliness rates.6 While plaintiffs recognize that the specific injunctive relief required by approval of plaintiffs’ first motion for preliminary injunction can be negotiated and, if negotiations are unsuccessful, can be determined following a hearing on the specific relief required, there is no question that time is of the essence with respect to action on the so-called “LIA waiver” motion for preliminary injunction. Not only has the waiver application been submitted, but also the defendant’s responses to questions about the waiver posed by the Centers for Medicare and Medicaid Services were submitted on November 30, 2012. The matter is now ripe for determination in light of threatened irreparable consequences for members of the plaintiff class. Besides his Gonzaga enforceability argument, the defendant Commissioner’s defense to the imposition of injunctive relief in Briggs, notwithstanding the irrefutable evidence of untimeliness, was the same as the instant case. Defendant asserted, first, that the significant delay was attributable largely to applicant fault, based on data provided pursuant to a stipulated judgment in binary litigation in Alvarez v. Commissioner of Income Maintenance, No. B-90-190
6

It is not disputed that the use of a contractor to collect documentation relevant to the proposed new eligibility criteria for current LIA enrollees will not assist DSS workers in any way with the respect to the thousands of pending and new LIA applications. It also is not disputed that, while the collection of documents for the 84,000 existing LIA enrollees may be done by the contractor, all determinations of whether, based on this information, these new requirements have been met must be made by DSS workers. See Affidavit of Roderick L Bremby, attached as Exhibit A to Defendant’s Memorandum In Opposition To Plaintiffs’ Second Motion For Preliminary Injunctive Relief (November 8, 2012)(Document 56); Conn. Gen. Sta. § 17b-261b (“The Department of Social Services shall be the sole agency to determine eligibility for assistance and services under programs operated and administered by said department”).
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(WWE)(D. Conn.). The Court in Briggs was “disinclined to credit” the Alvarez data. Decision at 34. While that disinclination stemmed from an inconsistency between the legitimate reasons for delay under the current Food Stamp Act and the 20-year old Alvarez stipulation, the disinclination is equally well-founded in this case. Specifically, as the Court noted in Briggs, there was no evidence of any fault by the named plaintiff and, likewise, in the instant case, there is no evidence of any applicant fault by named plaintiff Paul Shafer. Like Mr. Briggs, Mr. Shafer filed his application for benefits, but did not receive any response from DSS regarding any documentation he needed to provide to establish his eligibility and, even after he communicated with DSS about his application (and it was determined that all information had been provided), he still waited over five months for approval. That approval occurred only after he filed this case. And like Mr. Briggs, Mr. Shafer received a letter telling him his application was delayed because he failed to provide required documentation. In the Briggs case, Mr. Briggs had provided the documentation; in the Shafer case, no documentation had been requested or was needed. In both cases, there was absolutely no evidence of any fault on the part of the plaintiff.7 Moreover, as the Court noted in Briggs, a timely request for information is essential to the timely processing of applications within statutorily-mandated time frames. Decision at 33. It is not disputed that the defendant Commissioner’s regulations on the processing of applications for Medicaid do not require eligibility workers to make requests for documentation within any specified time frame. It also is undisputed that all of the so-called “Alvarez data” on

7

Similarly, in the case of Intervenor plaintiff Mouanodji Mbaissouroum, DSS confirmed it had the required documents but then sent a letter telling him his application was delayed and that it was unable to complete work on his application. Approval occurred three months after the application was filed, in this case subject to the 45-day time limit. As in the Briggs case, there was no evidence of fault on the part of the Intervenor plaintiff.
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“excused” delays is entered by workers without regard to whether the applicant was notified in a timely manner as to the documentation he or she must provide (directly or through a third party) to establish his or her eligibility, even though the Alvarez stipulation required such timely notification and specifically prohibited the counting of delayed cases as “excused” absent such notification. Accordingly, as in Briggs, the Court herein cannot credit this data as demonstrating that any percentage of delayed applications can be attributed to applicant fault. Second, the defendant Commissioner claimed in Briggs – as in the instant case -- that he is only obligated to “substantially comply” with the applicable time frames, not fully comply. The Briggs decision rejects this argument for essentially the same reasons set forth in plaintiffs’ memoranda in support of their motion for preliminary injunction. Decision at 36. Relying on Reynolds v. Giuliani, 2005 WL 342106 (S.D.N.Y. Feb. 14, 2005), the Court held that the administrative enforcement mechanism found in the Food Stamp Act – which sets forth the standard for enforcement action by the federal government8 - “was not intended to measure what the [Food Stamp Act] requires but only intended to measure how great a failure to meet those requirements should cause funds to be cut off. Id. (citing Withrow v. Concannon, 942 F.2d 1385, 1387 (9th Cir. 1991)).” Decision at 36. Of course, in the instant case, the defendant has conceded that he is out of compliance with “timely application processing” requirements even if, contrary to the Briggs ruling, “substantial compliance” were the standard applicable to private party enforcement. See Defendant’s Memorandum in Opposition to Preliminary Injunction, at 17 (Document 25).

8

The defendant Commissioner made the same argument regarding the statutory provision for the enforcement of the Medicaid Act by the federal government found at 42 U.S.C. § 1396c.
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Finally, as in the instant case,9 the defendant Commissioner argued in Briggs that preliminary injunctive relief was not required because of the ameliorative measures he has taken to improve timeliness rates. These measures include the hiring of some additional staff and the intended implementation of document scanning and other measures. The Court easily disposed of that claim: “[S]uch action, while commendable [,] does not render injunctive relief moot, nor does it deprive the Court of its authority to grant injunctive relief or determine the question before it.” Decision at 39, quoting M.K.B. v. Eggleston, 445 F.Supp. 2d. 400, 438 (S.D.N.Y 2006). For all of these reasons, based on the ruling in Briggs, all of defendant’s defenses to the entry of preliminary injunctive relief in this action are unavailing and, as in Briggs, defendant’s motion to dismiss should be denied and plaintiffs’ motions for preliminary injunctive relief granted, subject to further negotiations with respect to the specific relief to be provided in connection with the granting of plaintiffs’ January 9, 2012 Motion for Preliminary Injunction.

PLAINTIFFS By Their Attorneys: /s/ Sheldon Toubman ______________________________ Sheldon Toubman (ct08533) New Haven Legal Assistance Assoc. 426 State Street New Haven, CT 06510-2018 Phone: 203-946-4811 Fax: 203-498-9271 Email: stoubman@nhlegal.org

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See Defendant’s Memorandum in Opposition to Preliminary Injunction, at 19-22. (Document 25).
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/s/ Shelley White _____________________________ Shelley A. White (ct05727) New Haven Legal Assistance Assoc. 426 State Street New Haven, CT 06510-2018 Phone: 203-946-4811 Fax: 203-498-9271 Email: swhite@nhlegal.org

CERTIFICATE OF SERVICE I hereby certify that on this 17th day of December, 2012, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system.

By /s/ Sheldon Toubman Sheldon Toubman

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