Idabelle Benton and William Wisebaker v. James A. Rhodes, Governor, State of Ohio, and Raymond McKenna Director, Ohiodepartment of Public Welfare
586 F.2d 1
6th Cir.
1978
Check Treatment

*1 KEITH, and Before WEICK Circuit CECIL, Judge. Circuit Judges, and Senior WEICK, Judge. Circuit The suits in District were Court brought by plaintiffs under 28 U.S.C. 134313), of all Ohio Medic- as class actions Rhodes, A. recipients, against aid James McKenna, Ohio, Raymond Governor of Department of the Director of the Ohio Welfare, enjoin propоsed re- Public iu optional benefits of a number of duction program, and from the state’s medicaid seeking declaratory relief. appealed from an have

The defendants May entered on order of the District Court effect, 11, 1975, which still remains pre- plaintiffs’ motion for granted restraining defendants liminary injunction, Keith, Judge, concurred benefits, reducing optional opinion. and filed of reduction alleged grounds that the notice compliance was defective ‍​‌​‌‌‌​‌​‌‌​​​​‌​​​‌‌‌‌​​‌‌​​‌​‌‌‌​​​​‌​​‌‌​​​​​‍and was not in regulations, and applicable with the federal medic- affordеd to the that no in services. recipients aid on such reduction are of the We reverse. disagree We suffi- notice of termination that the regulations ciently complied with required no applicable reduction hearing on the state’s benefits.

2 Hearings. 205.10 §

I requirements. A (a) plan Stаte State with finding The of the District Court plan provide system . . . for a shall of respect to the form contents hearings under which: notice, is as follows: 1, 1976, April On or about the Ohio (5) An opportunity hearing for a shall Welfare included of Public granted any recipient be ... monthly mailing recipi- in its mеd'caid aggrieved by any agency who is approximately ents an enclosure size reduction, resulting suspension, in discon- card, computer of a styled “Reduction in assistance. A tinuance or termination of Medical Benefits.” The front card granted hearing need not be when either following contained the language: State or Federal law automatic grant adjustments recipi- for classes law requires Depart- State ents unless an for individual spend ment not more monr- than it has grant computation. is appeal incorrect given by Legislaturе been the State for [Emphasis added.] The medical benefits. amount of mon- in regulation When the was introduced ey provided by Legislature the State 15, form, Fed.Reg. (Aug. final 38 22006 not for the the budget sufficient rest of Health, 1973), Secretary Education period with ending deep 6-30-77. It is explained and Welfare the revision of regret that I must announce that the regulation as follows: medical benefits listed reverse procedures in Grievance lieu of of this card no longer will available hearings on law or questions policy. 1, beginning you 1976. If May have 205.10(a)(5). Section of the cоm- Most any questions regarding your eligibility argued against ments in area this this service, any specific for medical contact provision hearing on the basis that your county welfare department or procedure provides a viable mechanism provider. medical effеcting changes policy. Many for in The read as fol- reverse of the card side legal groups pointed aid out that recent a lows: Richardson, court case 353 [Yee-Litt F.Supp. (N.D.Cal.) (other (three-Judge following

The optional benefits 2753, Court), aff’d, 412 U.S. ‍​‌​‌‌‌​‌​‌‌​​​​‌​​​‌‌‌‌​​‌‌​​‌​‌‌‌​​​​‌​​‌‌​​​​​‍93 S.Ct. services) physician longer than are (1973)] 37 L.Ed.2d 152 cast doubt on the program covered the Medicaid effec- viability distinguishing fact tive between May policy or law. in or Those (cid:127) bought a Doctor’s without Drugs can be favor stressed reduction of administrative (except for insulin such as aspirin prescription item), and thera- cost. covered remains a Librium Darvon, as tranquilizers such peutic response to these comments and In Valium. case, have been court (cid:127) sustaining life for a few except Medical supplies for may provide modified. The States for or medical providers CWD items. policy or questions group hearings on list. hearing a They provide law. need not (cid:127) emergency transporta- Ambulance except law re- tion to hospital. or Federal where either State (cid:127) (cid:127) Therapy Speech Dental Services grant adjustments quires automatic (cid:127) (cid:127) Therapy Occupational Optometrist On re- individual recipients. classes (cid:127) (cid:127) Nursing Private Duty Podiatrist change a quests resulting not (cid:127) (cid:127) Mechanotherapy Psychologist law, assistance must or Federal State (cid:127) (cid:127) Cosmetherapy Chiroрractor hearing decision pending a be continued (cid:127) Therapy Physical officer determines unless issue one sole the Medicaid pertinent provision of 205.10, change or policy as Federal law reads regulations, 45 State C.F.R. provision or Federal law. follows: Thus, we hold that matters of law has been grievance system regarding views” on “expression since deleted subject not policy legislative and part program policy applicable regula under the requirements add- [Emphasis rulemaking procedures. pre- post- tions, whether ed.] Contrary decision of to the reduction. *3 indicate a Secretary’s comments “pro Court, the do not District right the to a distinguish to plain intent right to a recipient the vide each medicaid curtail- agency to contest an hearing hearing he is afforded where pre-reduction benefits, applied-for, currently-received ing of his to show the facts opportunity an that the the facts of specific the basis of on proposed caught by not the case are case, right to proposed from the recipient’s policy.” оr law or changes in state federal as a grievance procedure or a other advised adequately or Fed- We think the notice contesting means of issues State in ad- policy, law or after or eral whether the reduc- recipients of the the reasons Bеcause, in implementation. of their vance services, namely, the optional tion of the view, Secretary’s of views on expression the the appropriated by lack of sufficient funds part legisla- is a program policy normal It consolation legislature. stаte was small not rulemaking procedures, it was tive and learn to to the defendant state officials necessary to either hear- thought enjoined Judge, who from the District procedure an ings grievance or alternative pay- the them, inability to make that their policy. issuеs of law or to consider a to be a defense ments ordered would requested a on the Even when they if them charge against contempt filed case, case individual in which facts of an pay- have the to make did not funds the continuation recipient the entitled to ment. a is ren- benefits until decision dered, 205.10(a)(6)(i)(A),bene- was appear agency 45 the C.F.R. It would that before such decision may fits terminated funds, legislature without but the actually the officer determines at “the appropria- subsequently made additional the sole hearing that issue is one State words, recipients have In other all tions. policy change in Federal law or or a services payment optional for the received Id.; Fed.Reg. 22006 or Federal law.” 38 enjoined agency from which Court 15, 1973). (Aug. terminating. decides opinion, In our when a state further the viеw We are on the basis optional to terminate benefits Advisory ‍​‌​‌‌‌​‌​‌‌​​​​‌​​​‌‌‌‌​​‌‌​​‌​‌‌‌​​​​‌​​‌‌​​​​​‍Committee Medical Assistance funds, any appropriated lack of or for problems. apprised of the sufficiently reason, state other state this is a matter of state officials necessary for thе It was not policy permitted which to law or it was to of the Committee to obtain the consent find in the Federal or adopt. nothing We benefits. optional the reduction of giving prospective re State Constitutions cipients optional benefits a constitutional by the were raised issues Constitutional perpetual their continuance. Until right to the con- might require which Complaints all of optional benefits were terminated to determine vening three-Judge of a Court merely could obtained easily the benefits not rule did such issues. District Court card and presentation of a medicaid as the issues of these constitutional had control the agency way the state to juris- pendent heard on a claim of case was applied amount for and received. diction. validly pro- agency regulations When per- that а It does seem rather ridiculous pursuant authority mulgated legislative claim, could son, has not filed a who even law. We they have the force effect of benefits object to reduction practica- are of the that there is no might that he possibility because of agency distinguishing ble means of between toe, his a corn removed policy and state law. want to have 4 give (i) agency The State or local shall his to have go want to dentist might notice, except as adequate timely and cleaned. teeth (a)(4)(ii), (iii), paragraphs fоr in provided the Governor of Ohio We also note that this re- (iv) of section. Under this party defendant. The was made quirement: does being as a defendant for his included notice is (A) means “Timely” record, than the appear from the other not days before the date mailed lеast 10 fact that he Director appointed action, is, upon date Welfare. If no relief Department of Public effective; become action would Governor, he requested against (B) written notice means a “Adequate” should be dismissed. what action that includes а statement Goldberg case of We do not regard take, the reasons agency intends S.Ct. Kelly, 397 U.S. *4 action, spe- the agency for the intended apposite. (1970), Goldberg as L.Ed.2d action, regulations supporting such cific public welfare involved the termination right to explanation the individual’s only case involves payments. present The (if evidentiary hearing provid- request an which the benefits termination the ed) agency hearing, and and a State in required provide was the state never is which assistance circumstances under un- place. required payments the first The requested; continued if a being medicaid still made. der injunction opinion preliminary In our (iii) changes When in either granted. injunction The improvidently ad- grant automatic Federal law three

has now been in force for more than timely justments recipients, classes for years, expenditure and has resulted adjustments shall be grant notice of such funds a lawful of state which state had in- be if it given “adequate” which shall to, did, right attempt and to terminate action, cludes a statement of intended April action, a intended reasons for such injunction The is therefore preliminary specific change in law statement of the and cause is to the vacated remanded requiring a statement District Court. which a under circumstances contin- may be obtained and assistance KEITH, Judge, concurring in the ued. judgment. requirements which ‍​‌​‌‌‌​‌​‌‌​​​​‌​​​‌‌‌‌​​‌‌​​‌​‌‌‌​​​​‌​​‌‌​​​​​‍There arе thus four I concur the majority’s comply with the must be met in order injunction preliminary which holds regula- adequate provisions of notice issued in this case should vacated for action, (1) the intended tion: statement hearing requirement exists action, (3) a (2) the the intended reasons for requires when either or federal law state change requiring in law statement grant adjustments. automatic 45 C.F.R. action, (4) setting forth a statement 205.10(a)(5); Jennings also v. see Solo- the circumstances under which a mon, Civ.No. Y-75-1869 Y-76-210 had assistance continued. may be (D.Md. 1976). Nov. only the notice majority *5 COMPANY, Defendant-Appellee. Judge, PHILLIPS, Before Chief No. 77-3080. MERRITT, Judges. LIVELY and Appeals, United Court of States Sixth Circuit. PER CURIAM. plaintiff summary appeals Argued Oct. 1978. defendant entered in favor 2, 1978.

Decided Nov. fee.” In to recover a “finder’s this action the district summary judgment granting of an oral con the existencе court assumed of a fee of 5%for the payment tract for the found, The court plaintiff. services of the and other evi depositions on the basis of dence, that the oral contract made New York and held that the law of jurisdiction validity of the con governs apрlication a correct tract. This was diversity in this conflict of laws rule of Ohio Banci, F.2d case. Arsham v. 1975). (6th Cir. New York to deter- Applying the law district the contract validity mine the York the New Statute court concluded that Law, 5- (General Obligations § of Frauds renders the oral void 701(a)(10))1 contract 5-701(a)(10) provides— part, In relevant pay compensation Is a contract undertaking Every agreement, promise or loan, negotiating or in services rendered in void, unless it or some note or memoran- sale, exchange, negotiating purchase, by writing, dum thereof be in and subscribed renting leasing inter- real estate or therewith, party charged to be his therein, opportunity, or of a business est promise agent, agreement, ‍​‌​‌‌‌​‌​‌‌​​​​‌​​​‌‌‌‌​​‌‌​​‌​‌‌‌​​​​‌​​‌‌​​​​​‍lawful business, will, inventory, good fixtures or its undertaking: notes finding, adequately recipients I the reasons disagree majority’s with the advised notice, however, that notice of suf- for termination the intended reductions. however, ficiently regulations. with the did not set forth the circumstanc- complied 205.10(a)(4), es, hearing might ac- any, Under Section the intended under tion Welfare and therefore Public had or assistance continued discontinue, terminate, provisions the notice comply was an action “to did not with Nevertheless, being regulations. This this court suspend or assistance.” reduce required, a so, goes provide having that no 205.10(a)(4) on to found Section concur, I it would be following: finding with which to hold that benefits must be con- pointless given adequate tinued until notice only would inform recipients, which notice right to a they present them that have no Solomon, hearing. Jennings supra v. reasons, judg- in the 15. For these I concur ment of the court. Diefenbach, Alpeter, Allan Diefenbach B. EXPORT, INC., SOVIET IMPORT Davies, Akron, Ohio, plaintiff-appel- & Plaintiff-Appellant, lant. Guster, Andress, Richard E. Roetzel & TIRE GENERAL INTERNATIONAL Akron, Ohio, defendant-appellee.