MKB v. Eggleston Settled

Court Retains Jurisdiction Over Action for Four Years

August 1, 2007

Author: Barbara Weiner

On December 13, 2005 a class action lawsuit was filed in the U.S. District Court, Southern District of New York, on behalf of a class of lawful immigrants whose applications for assistance had been systematically and unlawfully denied by the Human Resources Administration (HRA).  MKB, et al. v. Eggleston, et al., 05 Civ, 10446.  The New York State Department of Health and the Office of Temporary and Disability (OTDA) were also named as defendants for their failure to properly supervise and adequately train HRA workers responsible for making immigrant eligibility determinations. More specifically, the lawsuit alleged that the applications of battered immigrants with family or self-petitions pending before the U.S. Citizenship and Immigration Service (USCIS), considered “qualified immigrants” under federal law for the purpose of public benefit eligibility, were being routinely denied benefits because of computer system inadequacies, incorrect and misleading policy guidance and training by the State agency defendants and inadequate supervision of front-line workers.  In addition to battered qualified immigrants, the lawsuit also represented immigrants residing under color of law (PRUCOL) many of whose applications had also been routinely denied.

On February 16, 2006, finding that plaintiffs were likely to succeed on the merits, Judge Rakoff of the Southern District issued a Preliminary Injunction and Order requiring the defendants, particularly HRA, to begin taking corrective measures even in advance of the fact finding hearing scheduled for March of that year.  On August 29, 2006 Judge Rakoff issued an 83 page decision certifying the plaintiff class as defined in the complaint, reconfirming the relief ordered in the preliminary injunction as well as relief subsequently sought by plaintiffs. MKB v. Eggleston, 445 F.Supp.2d 400 (S.D.N.Y. 2006);see also “New York’s Southern District Provides Relief to Battered Immigrants”, LSJ, October 2006.  In the several months following the Court’s Order, the parties hammered out a settlement agreement, which was finalized on January 12, 2007.  On June 6, 2007 the Court approved the settlement reached by the parties and judgment was entered on July 16, 2007.

TERMS OF THE SETTLEMENT

General Injunctive Provisions

Under the agreement, HRA is enjoined from denying, discontinuing or reducing the federal and/or state benefits of class members based on immigration status.  Class members are defined as “battered spouses and battered children of US citizens or lawful permanent residents who are Qualified Aliens as defined in 8 USC § 1641(c)(2); their immigrant children or, in the case of battered children, their immigrant parents, provided that they too are Qualified aliens as defined in 8 USC § 1641(c)(2); lawful permanent residents who have been in that status for less than five years; and persons who are Permanently Residing Under Color of Law (PRUCOL).” 

The agreement contains special provisions with regard to Social Security Numbers. While class members must cooperate with the requirement to apply for Social Security Numbers (SSN), if the SSN is denied or the class member affirms that the Social Security Administration (SSA) refused to even take her application for an SSN, the class member must be provided with Safety Net and/or state funded Medicaid.  Class members cannot be required to re-apply for an SSN unless the immigration status of a class member changes, for example, if a battered immigrant with a prima facie determination of eligibility for approval of her self-petition is granted deferred action and employment authorization. HRA workers are required to give each immigrant who is being sent to SSA to apply for an SSN a referral letter that describes the benefit for which the class member is eligible, including whether it is a federal or state benefit, and confirms that the individual is otherwise eligible for the benefit but for the SSN. A recently issued HRA policy memo describes the procedure to be followed by the local district.  See “Social Security Numbers for Noncitizens,” HRA Policy Directive #07-24-ELI, July 2, 2007.  An earlier policy memo along the same lines was issued by OTDA, governing the procedures not only for HRA but all the local social services districts in the state. See “Social Security Numbers for Aliens Without United States Citizenship and Immigration Services (USCIS) Work Authorization,” OTDA Administrative Policy Directive #07 INF-01, January 10, 2007.

Training Requirements

In his decision of August 29, 2006 Judge Rakoff found that inadequate raining and faulty training materials and policy guidance were in large part responsible for the dismal job HRA had done in the past in processing the applications of class members.  The settlement requires that appropriate training curricula be developed and adequate training be delivered to all HRA staff who handle eligibility determinations, including recertifications.  Staff required to be trained include 150 Immigrant Liaisons, whose tasks include the initial determination of eligibility in certain cases as well as the provision of technical assistance to other workers. Training must begin no later than in October of this year. Immigrant eligibility determinations made by HRA staff other than the Immigrant Liaisons can only be made by staff who have had equivalent training.

Periodic reinforcement training is also required to be undertaken.

Retroactive Relief

The settlement has extensive provisions for the restoration of benefits lost by class members because of the policy and practices challenged in the lawsuit.  Among the benefits for which retroactive relief is available are benefits that were unlawfully denied to class members under the State’s Food Assistance Program (FAP).  The FAP program is no longer in existence but while it was, most battered qualified immigrants who would have been eligible for benefits never received them because of the failure of HRA to properly implement the program,

Two groups of plaintiffs will have their cases automatically identified and reviewed by HRA for retroactive relief without the necessity of their responding to class notice. The first group consists of battered immigrant class members who, because of their immigration status, were excluded by HRA from the public assistance grant provided to their US citizen children. The second group is comprised of class members who were under 18 at any time during the retroactive period as defined under the settlement and who are either battered qualified immigrants or lawful permanent residents with less than five years of residence in the US and who were not accepted for food stamps because of their immigration status. Those class members who are currently receiving public assistance will have their benefits restored automatically, without the necessity of applying.  The retroactive time period for public assistance purposes is from December 13, 2002 through the date of the Order and for food stamps, from December 13, 2004 through the date of the Order (one year before the filing of the lawsuit).  With respect to retroactive FAP benefits, since the FAP program no longer exists, payment will be made by HRA from “non-welfare funds” in an amount that represents 50 percent of the benefit (the HRA share) of the FAP grant the class member should have received.  Those eligible for retroactive public assistance will also be provided with retroactive Medicaid.  For those class members who would have been eligible for Medicaid but not public assistance (related to the different definition of the PRUCOL category utilized by the two programs), a separate referral for the determination of Medicaid eligibility will be made.

Under the terms of the settlement agreement the methodology for identification of class members who are entitled to retroactive relief is to be developed by HRA. Plaintiffs counsel will have an opportunity to meet with HRA if they have concerns about the methodology and to file objections with the court if their concerns are not addressed.  Notices about the availability of retroactive relief will be sent to all class members identified by HRA.

Those who are identified as class members by HRA and who are eligible for automatic retroactive relief need not respond to the notice.  All who respond to the notice must attend an appointment with HRA. Notices are not scheduled to go out until well into next year.

Continuing Jurisdiction

The settlement provides for the continuing jurisdiction of the Court for a period of four years.  During this time, HRA is required to review a random sample of cases twice each year and provide class counsel with the results of such review.  OTDA is to supervise HRA by reviewing one out every four cases reviewed by HRA.  Similarly, DOH must review a certain number of cases referred for separate Medicaid determinations.

Plaintiffs were represented by the Legal Aid Society of New York, the New York Legal Assistance Group, (NYLAG) and Hughes Hubbard & Reed, LLP.  Barbara Weiner of the Empire Justice Center is of counsel on the case. Monitoring of compliance with the settlement agreement is being handled by NYLAG.  Advocates in New York City who are representing battered immigrants or those in a PRUCOL classification whose clients have been unlawfully denied benefits because of their immigration status can contact Sarah Borsody of NYLAG at sborsody@nylag.org or 212-613-5090 for assistance.