Amicus Curiae Brief — Sullivan v. Zebley

No. 88-1377. JOSEPH ©. SPAMIOL, JR.

In the

Supreme Court of the United States.

OctToser Term, 1989

LOUIS W. SULLIVAN, Secretary

or HEALTH AND HUMAN SERVICES.

PETITIONER,

*.

BRIAN ZEBLEY, eT AL..,

RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS POR THE THIRD CIRCUIT

Brief of the Commonwealths of Massachusetts

and Pennsylvania, the States of Alabama, Alaska,

Arizona, Arkansas, Connecticut, Delaware, Illinois,

Indiana, lowa, Kansas, Louisiana, Maryland, Minnesota,

Missouri, Montana, Nebraska, New

New York, Rhode Island, South Dakota, Tennessee,

Texas, Utah, Vermont and W yoming, and the District of

Columbia, Amici Curiae in Support of Respondents.

JaMES M. SHANNON,

Attorney General,

SUZANNE E. DURRELL,*

JUDITH FABRICANT,

Assistant Attorneys General,

One Ashburton Place,

Boston, Massachusetts 02108

(617) 727-2200

*Counsel of Record

See inside cover for additional counsel

BATEMAN @& SLADE. Ie BOSTON. MASSACHUSETTS

Don Siegelman, Attorney Genera!

State of Alabama

Douglas B. Bailey, Attorney Genera

State of Alaska

Robert K Corbin. Attorney Genera

State of Anzona

john Steven Clark. Afforney Genera

State of Arkansas

Clarme Nardi Riddle, Acne Amorn

State of Connecticut

Charlies M. Oberty, III. Attorney Gener

State of Delaware

Herbert ©. Rend. Sr 4ctine ( orporati

Charlies L. Reichel, Deputy Corpora

Appellate Division. District of Columba

Neil F. Hartigan. Attorney Genera

State 1 Iilino

Lime Pearsor arr Ne en

State of Indiana

Thomas | Mille 4 | vie ‘serie?

State of lowa

Robert T. Steph 1 rive en.

State of Kansas

Stat { Marviand

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMA ’.Y OF ARGUMENT

ARGUMENT

I. THE SOCIAL SECURITY

ADMINISTRATION'S UNDULY

RESTRICTIVE APPROACH TO SSI

ELIGIBILITY DETERMINATIONS

FOR CHILDREN SHIFTS TO THE

STATES COSTS THAT CONGRESS

HAS DECIDED SHOULD BE BORNE

AT THE FEDERAL LEVEL.

A. Welfare Programs.

1. Aid to Families With

Dependent Children.

2. General Assistance.

B. Specialized State-Funded

Health Care Programs.

C. Other Health Care Costs.

D. Additional Long-Term Costs.

II. THE COURT NEED NOT DEFER TO THE

SOCIAL SECURITY ADMINISTRATION'S

ERRONEOUS INTERPRETATION OF

THE GOVERNING STATUTE.

CONCLUSION

Page

10

31

37

Cases

Alfred L. Snapp & Son, Inc.

v. Puerto Rico,

458 U.S. 592 (1982)

American Tobacco Co. v. Patterson,

456 U.S. 63 (1982) 34, 35,

Avery v. Heckler,

584 F.Supp. 312 (D. Mass. 1984),

aff'd, 762 F.2d 158

(lst Cir. 1985)

Batterton v. Francis,

432 U.S. 416 (1977)

Bethesda Hosp. Ass'n v. Bowen,

485 U.S. 399,

108 S. Ct. 1255 (1988)

Board of Governors, FRS

v. Dimension Financial Corp

474 U.S. 361 (1986)

Burlington Northern R. Co.

v. Oklahoma Tax Commission,

481 U.S. 454 (1987) 35, 35n,

Chevron U.S.A... Inc, v.

Natural Resources Defense

Council, Inc., 467 U.S. 837

(1984) 32,

12

22

35

34

36

34

City of New York v. Heckler,

578 F.Supp. 1109 (E. D. N. I.),

aff'd, 742 F. 2d 729

(2d Cir. 1984),

aff'd sub nom.,

Bowen v. City of New York,

476 U.S. 467 (1986) 11

DeLeon v. Secretary of Health

and Human Services,

734 F.2d 930 (2d Cir. 1984) 5n

Dickerson v. New Banner

Institute, Inc.,

460 U.S. 103 (1983) 35n

Dixon v. Heckler,

589 F.Supp. 1512

(8. D. N. I. 1984) 12

a Band of Mission

Indians, 466 U.S. 765 (1984) 35n

＋

Griffin v. Oceanic Contractors, Inc

458 U.S. 564 (1982) 35n

Holden v. Heckler,

584 F.Supp. 463 (N.D. Oh.),

remanded, 754 F.2d 372

(6th Cir. 1984) 12

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) 32, 33

Lukhard v, Reed,

481 U.S. 368 (1987) 4n

iii

Page

Lyng v. Castillo,

477 U.S. 635 (1986) 5n

Marcus v. Bowen,

696 F. Supp. 364

(N. D. 111. 1988),

appeal pending,

No. 89-2717 (7th Cir.) 32, 37

NLRB v. United Food and

Commercial Workers Union,

484 U.S. 112,

105 S.Ct. 413 (1987) 32, 33

Regents of University of

California v. Public

ions Board,

485 U.S. 589,

108 S. Ct. 1404 (1988) 33, 34

Rodriguez v. U.S.,

480 U.S. 522 (1987 35n

Schweiker v. Gray Panthers,

453 U.S. 34 (1981) 11

Wyman v. James,

400 U.S. 309 (1971) 2

zebley v. Bowen,

855 F. 2d 67 (3d Cir. 1988) passim

iv «

Federal Statutes and

Legislative Sources

42 U.S.C. § 602(a)(7) (1982)

42 U.S.C. § 602(a)(24) (1982)

42 U.S.C. § 603 (1982)

42 U.S.C. § 607 (1982)

42 U.S.C. § 607(b),

as amended by Act of

Oct. 13, 1988, Pub. L. 100-485,

Title IV, and Act of

Nov. 10, 1988, Pub. L. 100-647,

Title VIII

42 U.S.C. §§ 1381-1383c (1982)

42 U.S.C. § 1382 (1982)

42 U.S.C. § 1382c(a)(3) (A)

(1982) 15, 36,

42 U.S.C. § 1396a(a) (10) (A) (ii)

(1982)

42 U.S.C. § 13963 (a) (10) (A) (i)

(11 (1982)

Act of Sept. 19, 1984,

Pub.L. No. 98-460

1984 U.S. Code Cong.

& Ad. News 3046-62

Page

l7n

18

17

21

2In

10

17n

37n

22

13

5n

5n

Federal Statutes and

Legislative Sources (continued)

H.R. Rep. No. 231, 92nd Cong.,

2d Sess., reprinted in 1972

U.S. Code Cong. & Ad.

News 4989 3. 12,

H.R. Rep. No. 231, 92nd Cong.,

2d Sess., reprinted in 1972

U.S. Code Cong. & Ad. News

State Statutes

Mass. Admin. Code Tit. 106,

§ 312 (1988) 20

Mass. Gen. Laws ch. 117,

§§ 1-25 (1986) 20

Mass. Gen. Laws ch. 118E,

§ 6B (Supp. 1988) 27n

Mass. Gen. Laws ch. 118F,

§§ 15, 17 (Supp. 1988) 27

Mass. St. 1989, c. 240, § 2, items

0321-1600 and 0321-2000 5n

Md. Ann. Code Art. 88A, §§ 65A, 65B 20

Miscellaneous

N. Hobbs, et al., Chronically Ill

Children and Their Families,

pp. 62-10) (1985) 29, 30

»- 73 «

- Miscellaneous (continued)

"Survey of Disabled Children

Under SSI Program”, Social

Security Bulletin, January, 1980,

Vol. 43, No. l, p. 10 17

United States Department

of Health and Human Services,

Characteristics of State

Assistance Programs for

SSI Recipients, (1989) 13, 14, 19n

United States Department of Health

and Human Services, Characteristics

of State Plans for AFDC (1988) 2 In

Urban Systems Research and

Engineering, Inc., Characteristics

(U.S. Department of Commerce,

National Technical Information

Service, 1983) 20n

- wii -

No. 88-1377

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

Louis W. Sullivan, Secretary

of Health and Human Services,

Petitioner,

v.

Brian Zebley, et al.

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Amici curiae submit this brief

Support of respondents. Amici urge this

in

Court to affirm the judgment de lo,

which invalidated the Social Security

Administration's ("SSA's") policy’ te-

garding eligibility of disabled children

for Supplemental Security Income ("SSI")

benefits.

As this Court has recognized, each

state has a “quasi-sovereign interest in

the health and well-being - both phys-

ical and economic - of its residents in

general.” Alfred L. Snapp & Son, Inc.

vy. Puerto Rico, 458 U.S. 592, 607

(1982). Where the interests of children

are concerned, the states’ interest is

particularly strong; indeed, “[(t)here is

no more worthy object of the public's

concern” than protection and aid for de-

pendent children. Wyman v. James, 400

U.S. 309, 318 (1971).

The states’ interest in the welfare

of their children is most acute with re-

spect to those whose needs are greatest,

and whose families are least able to

provide for them, so that they are most

dependent on the benefits provided by

the various levels of government. As

Congress expressly recognized in enact-

ing the Social Security Amendments of

1972, children who are both poor and

disabled, and the families of such chil-

dren, are among the neediest and most

disadvantaged. H.R. Rep. No. 231, 92nd

Cong., Ind Sess., seprinted in 1972 U.S.

Code Cong. & Ad. News 4989, 5133-34.

Amici therefore have a strong interest

in these children's access to the bene-

fits granted them by federal statute.

In addition to their concern for the

welfare of their citizens, the states

*

have a strong interest in protecting

themselves from undue fiscel burdens.

Because of their commitment to the wel-

fare of their neediest citizens, the

states operate various partially or

wholly state-funded health and welfare

programs, to which applicants rejected

from federally-funded programs may turn

for assistance. To the extent’ that

these state-funded programs fill a gap

in federal coverage caused by unlawful

rejections, the federal administrative

policies that cause those rejections

have the effect of shifting costs from

the federal level to the states.+/

l/ The policy challenged in this case

may be seen as part of a larger effort

to shift costs of welfare programs from

the feder government to the states.

Although e of these efforts have been

upheld, see, eg. Lukhard v. Reed, 481

U.S. 368 (1987) (plurality) (upholding

(footnote continued)

abe

Such cost-shifting subverts the will of

Congress, to the detriment of both the

states themselves and their neediest

citizens. Amici have strong interests

(footnote continued)

restrictive application ot statutory

change in income standard for Aid to

Families with Dependent Children); Lyng

v. Castillo, 477 U.S. 635 (1986) (up-

holding statutory change restricting

Food Stamp eligibility), many have been

overturned, eitber by court decision or

by legislative enactment. See. 8.8.

DeLeon vy. Secretary of Health and Human

Services, 734 F.2d 930 (2d Cir. 1984)

and cases cited at 937 (restricting or

invalidating Social Security Adminis-

tration's Continuing Disability Review

program); Act of Sept. 19, 1984, pub. L.

No. 98-460; 1984 U.S. Code Cong. & Ad.

News 3046-62 (restricting Continuing.

Disability Review program and mandating

alteration in other Social Security Ad-

ministration policies). In order o de-

fend themselves against the fiscal im-

pact of such cost-shifting, several

states have found it cost-effective to

fund programs of :egal assistance for

persons claiming eligibility for certain

federal benefits, e.g., Mass. St. 1989,

c. 240, § 2, items 0321-1600 and

0321-2000, allocating funds for that

purpose.

* *

in correcting such erroneous cuministra-

tive policies.

In this case, SSA has adopted an ap-

proach to determining disability in

children that is so rigid and restric-

tive as to exclude many children who are

severely disabled. The consequences of

this policy are devastating to those

children and their families, and harmful

to the states’ interests as well. Amici

therefore urge this Court to affirm the

judgment below, which invalidated SSA‘s

policy and enjoined its further

application.

SUMMARY OF ARGUMENT

1. In enacting the 881 statute,

Congress intended to relieve the states

of the fiscal burden of caring for the

disabled, and to assume that burden at

83

the federal level. Congress include”.

low-income disabled children in the SSI

program in order to provide for the spe-

cial costs of their care, and to ensure

that those costs would not fall to the

states (pp. 10 to 14).

By applying an overly restrictive

standard for disability determinations

for children, SSA has excluded from the

SSI program low-income children suffer-

ing from severe disabilities. In this

manner, SSA has shifted to the states

certain costs of the care of such

children, and has thereby thwarted the

will of Congress (pp. 14 to 16).

Children who are erroneously denied

SSI benefits and asseciated Medicaid

coverage often fall beck on Aid to Fami-

lies with Dependent Children ("AFDC"),

or state-funded general assistance and

medical assistance programs. Such erro-

neous denials thus increase the costs of

these programs to the states. In addi-

tion, such children may receive

assistance from various specialized,

state-funded health and human services

programs, thereby draining the resources

that would otherwise be available

through those programs for services to

others. State and local governments may

also bear the costs of health care for

such children through subsidies to pub-

lic hospitals or to private hospital un-

compensated care programs. Disabled

children who do not receive care may

suffer increased life-long dependency on

publicly- funded services with consequent

costs to the states (pp. 16 to 31).

II. The Court of Appeals correctly

ruled that SSA's regulations reflect an

erroneous interpretation of the govern-

ing statute, and are therefore invalid.

In evaluating SSA's policy, the Court

need not defer to the agency's interpre-

tation, because congressional intent can

be determined through traditional tools

of statutory construction. Since SSA's

regulations conflict with congressional

intent as so determined, they must fall

(pp. 31 to 34).

The process of statutory construc-

tion must begin with the plain meaning

of the statutory terms. Here, the plain

terms of the governing statute require

that eligibility standards include each

child who suffers from any impairment or

combination of impairments of comparable

severity to those that would disable an

adult. In violation of this statutory

requirement, SSA limits eligibility to

those children whose impairments meet or

equal its listing of impairments, with-

out providing for any individual deter-

mination of the functional effects of

each child's impairment or combination

of impairments. SSA‘s policy thus con-

flicts with the plain terms of the stat-

ute (pp. 34 to 37).

ARGUMENT

I. THE SOCIAL SECURITY ADMINISTRATION'S

UNDULY RESTRICTIVE APPROACH TO SSI

ELIGIBILITY DETERMINATIONS FOR CHIL-

DREN SHIFTS TO THE STATES COSTS THAT

CONGRESS HAS DECIDED SHOULD BE BORNE

AT THE FEDERAL LEVEL.

The SSI program, 42 U.S.C. §§ 1381-

1383c (1982), was established by Con-

gress in 1972, to replace earlier state-

10

administered programs of aid to the ei-

derly, blind and disabled. See

Schweiker v. Gray Panthers, 453 U.S. 34,

38 (1981). In replacing state programs

with an entirely federally-funded

program, Congress indicated its inten-

tion to relieve the states of the costs

of providing such aid, and assumed that

cost at the federal level.

Fiscal relief to the states was no

accidental effect of the statute;

rather, one of Congress's expressly

stated purposes was to relieve state

and local governments of the soaring

costs" of existing programs for the

disabled. City of New York «. Heckler,

578 F.Supp. 1109, 1121 (E.D. N. v.).

aff'd, 742 F.2d 729 (2d Cir. 1984),

aff'd sub nom., Bowen v. City of New

York, 476 U.S. 467 (1986), citing legis-

-ll-

lative history of the 1972 Act. See

also Dixon v. Heckler, 589 F.Supp. 1512,

1516 (S.D.N.Y. 1984); Holden v. Heckler,

584 F.Supp. 463, 467, 486 (N.D. Oh.),

remanded, 754 F.2d 372 (6th Cir. 1984);

Avery v. Heckler, 584 F.Supp. 312, 316

(D. Mass. 1984), aff'd, 762 F.2d 158

(lst Cir. 1985).

As established by Congress, the SSI

program provides financial assistance

not only to adults disabled from sub-

stantial gainful employment, but also to

disabled children who live in households

with very low income. Congress included

low-income disabled children in the SSI

program, although they had not been in-

cluded in earlier disability programs,

in recognition of the extraordinarily

high cost of their daily care. H.R.

Rep. No. 231, 92nd Cong. 20 Sess., re-

elie

printed in 1972 U.S. Code Cong. & Ad.

News 4989, 5133-34. For the low-income

family of a disabled child, SSI cash

benefits can meet the otherwise prohibi-

tive costs of specialized day care,

skilled home care, rehabilitation pro-

grams, special equipment, and other es-

sential goods and services necessitated

by the child's condition.

In addition to cash assistance for

such purposes, and even more crucial for

many families, SSI coverage in the over-

whelming majority of states conveys au-

tomatic eligibility for Medicaid, assur-

ing the disabled child's access to ur-

gently needed health care. See 42

U.S.C. § 1396a(a)(10)(A)(i) (II) (1982);

see also United Sta es Department of

Health and Human Services,

| 3 F State Assis —

2.

grams _for SS] Recipients, (1989),

p. 110. For low-income families of

children who require frequent and cost-

ly medical treatment, the importance of

such ceverage cannot be overstated.

Even the rare low-income family that has

access to private health insurance,

through employment or otherwise, may de-

pend heavily on SSI-based Medicaid cov-

erage to ensure a disabled child's ac-

cess to medical care; insurance may

leave a significant portion of charges

uncovered, may exclude necessary spe-

Cialized services, or may even exclude

the child entirely because of his or her

condition.

Despite Congress's expressed inten-

tion to guarantee SSI benefits for dis-

abled children, and thereby to relieve

the states of the costs of their care,

SSA has adopted a rigid, restrictive ap-

proach to e:igibility determinations for

children that effectively excludes many

whose conditions do in fact disable them

severely. Although the statute by its

terms requires comparable treatment of

adults and children in disability deter-

minations, 42 9. C. 5 1382c(a)(3)(A)

(1982), SSA subjects children to a more

restrictive standard than adults, te-

quiring only children to demonstrate

medical findings that meet or equal

those included in its listings of pre-

sumptively disabling conditions, and

providing no mechanism for evaluating

the combined effect of multiple impair-

ing conditions on children.

2.

As s result, large numbers of chil-

dren whose impairments are comparable to

ones that would disable adults from sub-

stantial gainful employment are denied

SSI benefits, in contravention of the

Statute. Many of these low-income, dis-

abled children and their families turn

to state programs for assistance with

the financial burdens arising from their

impairments. Thus, through its cdminis-

trative policy, SSA has circumvented

Congress's intention to assume these

burdens at the federal level, and has

shifted them to the states.

A. Welfare Programs.

Re Aid to Families With

Dependent Children

Erroneous denials of SSI benefits to

disabled children impose a wide variety

216

of direct and indirect burdens on state

budgets. The most direct costs appear

in welfare programs partially or wholly

funded by the states.

Many children who are financially

eligible for SSI are members of families

who also qualify for Aid to Families

with Dependent Children ("AFDC"). See,

@.g., “Survey of Disabled Children Under

SSI Program", Social Security Bulletin,

January, 1980, Vol. 43, Wo. tl, op.

10.4/ Approximately half of the fund-

ing for AFDC benefits comes from the

state. 42 U.S.C. § 603 (1982).

2/ The proportion of SSI eligible fami-

lies who also qualify for AFDC varies

from state to state, because AFDC finan-

ciel eligibility criteria vary among the

states, while SSI financial eligibility

is uniform nationwide. 42 U.S.C. §§ 602

(a)(7), 1382 (1982).

=, =

The amount paid to a family on AFDC

depends on the number of persons in the

AFDC assistance unit. Since a child re-

ceiving SSI is autometically excluded

from the assistance unit, that child's

SSI eligibility reduces the size of the

unit for AFDC purposes, and consequently

reduces the financial burden on the

state. 42 U.S.C. § 602(a)(24)

(1982) .27 Conversely, if the child is

erroneously excluded from 881, and

3/ For example, an AFDC-eligible family

with two children would be treated for

AFDC purposes as a family with one child

if the second child were on SSI. The

family would receive the child's SSI

benefit, plus an AFDC grant for the

other family members. If the second

child were denied SSI benefits, however,

the family would be treated as having

two children and would receive a higher

AFDC grant. The increased AFDC grant

would not be enough to offset the lost

SS. benefit, so both the family and the

state would suffer an economic loss.

-18-

therefore remains in the AFDC unit, the

state's AFDC burden is higher than it

would be otherwise be. For the family,

however, the denial of SSI coverage out-

weighs the additional AFDC benefit,

Since SSI payments are uniformly higher

than the incremental AFDC payment for an

additional family member . 4/

4/ In states that supplement 881

payments and that include children among

those eligible for such supplements, the

cost of AFDC benefits for these children

may be at least partially offset by

reduced SSI supplements. The fiscal

impact on states of such offsets varies

widely because of the greatly varying

size of, and eligibility requirements

for, supplements paid by the states.

See United States Dept. of Health and

Human Services, Characteristics of State

Assistance Programs for SSI Recipients

(1989).

-19-

. General Assistance.

Many states also operate general as-

Sistance programs that provide both cash

benefits and medical assistance to low-

income families not eligible for AFDC.

Ea. Md. Ann. Code Art. 88A, §§ 65A,

65B; Mass. Gen. Laws ch. 117, §§ 1-25

(1986); Mass. Admin. Code Tit. 106,

§ 312 (1988).2 These programs are

operated and funded completely by the

states and local governments, wit.: no

37 As of 1983, at least forty-two

states had general assistance programs

and at least thirty-four states had med-

ical assistance programs for which chil-

Gren wrongfully denied SSI could qual-

ify. Urban Systems Research and Engi-

neering, Inc., Characteristics of Gen-

eral Assistance Programs 1982 ( U.S.

Department of Commerce, National Techni-

cal Information Service, 1983).

-20-

federal contribution to either the cash

benefit or the medical assistance.

In states that do not participate in

the AFDC-Unemployed Parent ("AFDC-UP")

program, see 42 U.S.C. § 60/ (1982),

general assistance may be the only wel-

fare program available to children in

87 Even in states

two-parent families.

that do have the AFDC-UP program, some

families who do not meet the particular

requirements of that program may be eli-

gible for general assistance, medical

6/ As of 1988, twenty-eight states and

other jurisdictions operated AFDC-UP

programs; twenty-six did not. United

States Department of Health and Human

Services, Characteristics of State Plans

for AFDC (1988). A modified form of the

AFDC-UP program will become mandatory

for all jurisdictions as of October 1,

1990. 42 U.S.C. § 607(b), as amended by

Act of Oct. 13, 1988, Pub. L. 100-485,

Title IV, and Act of Nov. 10, 1988, Pub.

L. 100-647, Title VIII.

afte

assistance, or both. See generally

(1977).

SSI coverage for a disabled child

reduces general assistance payments to

the child's family by decreasing the

amount of general assistance for which

the family is eligible. Conversely, im-

proper denials of SSI coverage increase

the burdens on general assistance

programs, to the states’ fiscal detri-

17 In states not adopting the

ment.

Medicaid-Under 21 program, 42 U.S.C.

§ 1396a(a)(10)(A)(ii) (1982), any med-

ical benefits to these children

7/ For example, the Massachusetts De-

partment of Public Welfare noted dra-

matic increases in the number of inca-

pacitated adults receiving General Re-

lief during the years 1981-1983, when

the Social Security Administration im-

plemented a nationwide ,rogram of re

viewing earlier SSI disability determi-

nations.

222.

also are funded solely by the states;

those states thus suffer an even greater

fiscal drain from improper denials of

881.87

B. Specialized State-Funded Health

Care Programs.

In addition to AFDC and general as-

Sistance programs, a wide variety of

state-funded health and human service

programs bear increased burdens when

children are erroneously excluded from

8/ Improper denials of SSI eligibility

to children increase the states’ AFDC

and general assistance burdens through

an additional, less direct mechanism.

Without funds for the purchase of ser-

vices, a disabled child's need for con-

stant, specialized care may prevent a

parent from working, thus rendering the

entire family dependent on state-funded

benefits. For many such families, SSI

benefits could make employment -- and

economic independence -- possible by

funding alternative care for the dis-

abled child.

289.

881. In Massachusetts, for example,

three programs sponsored by the

Department of Public Health ("DPH"),

funded solely by the Commonwealth, pro-

vide limitod quantities of goods or ser-

vices to children with special medical

needs.

The “Home Health Care” program pro-

vides intermittent at-home assistance in

the care of multiply handicapped chil-

dren, particularly after surgery or at

times of emergency, thus promoting the

ability of families to care for their

children at home. The “Early Interven-

tion“ program provides a variety of spe-

cialized rehabilitative therapies, to

promote maximum long-term development of

children with developmental delay.

Under the “Special Medical Needs” pro-

gram, DPH has provided chronically ill

-24-

or physically impaired children with

one-time grants of up to five thousand

dollars for medical procedures or

1€habilitative equipment.

Funds for these and similar programs

are limited, however, and services are

provided only subject to availability of

funds. To the extent that families can

use SSI benefits to purchase these ser-

vices, or that Medicaid reimbursement is

available as a result of SSI eligibil-

ity, limited state resources can be used

for services to other equally needy per-

sons. Conversely, for disabled children

who are erroneously denied SSI benefits,

such limited state-funded programs may

be the only alternative.“

9/ Similarly, state-funded mental

health and mental retardation services,

respite care, case management, and

(footnote continued)

.

S. Qther Health Care Costs.

Even when disabled children who are

erroneously rejected from SSI and

corresponding Medicaid coverage do not

participate in state-funded programs,

dhe costs of whatever health care they

receive ultimately falls, at least in

part, upon state and local governments.

Children who lack adequate health insur-

ance or Medicaid coverage often rely on

public hospitals, which are supported by

states and local governments. Even pri-

vate hospital charges, when left unpaid

by a child's family, may ultimately te-

(footnote continued)

related programs bear undue burdens in

serving children who are erroneously

excluded from SSI and related Medicaid

eligibility.

260

vert to state-subsidized uncompensated

care pools. Ses, e.g., Mass. Gen. Laws

ch. 118F, §§ 15, 17 (Supp. 1988).

Through such mechanisms, state funds 01

timately fill some of the gap that is

created when SSA policy causes chroni-

cally ill and disabled children to be

excluded from the program that Congress

intended to fund their care. +2/

107 State-subsidized insurance or

guasi-insurance programs may also assist

in paying the costs of health care for

these children. For example, the Massa-

chusetts “CommonHealth" program, Mass.

Gen. Laws ch. LI8E, § 6B (Supp. 1988),

provides health benefits to disabled

children who are not eligible for SSI.

This program is designed for families

who are financially ineligible for SSI;

the Massachusetts statute incorporates

the SSI disability standards. Disabil-

ity determinations for the program, how-

ever, are made separately from SSI de-

terminations. Thus, it is possible that

some disabled children who are improper-

ly rejected from SSI may participate in

this state-funded program.

99.

These state-funded programs, numer-

ous and costly as they are, do not en-

sure a disabled child's access to neces-

sary services. Without SSI benefits and

associated Medicaid coverage, some chil-

dren will not receive preventive and re-

habilitative services that would promote

their development II“ ultimately, for

some of these children, such deprivation

will result in greater life-long depend-

ency on publicly-funded services, in-

cluding institutional care, than would

otherwise have been necessary. For the

III <A Wew York official has estimated

that as many as 25% of the disabled

children who may be eligible for SSI in

that State are not recipients of any

public assistance program at present.

These children are unlikely to be te-

ceiving timely and adequate medical care

and other associated services, which

might ameliorate or improve their condi-

tions.

-28-

states, that result means vastly in-

creased costs, particularly for mental

health and mental retardation services.

Similarly, @ chronically-ill child’‘s

lack of access to preventive health care

may lead to increased hospitalization,

at least some of the costs of which may

fall to a state.

D. Additional Long-Term Costs.

Unduly restrictive SSI policies im-

pose additional, less direct costs on

the states. The stress placed on an en-

tire family by a child's chronic illness

or disability is obvious and well docu-

menrted. See generally N. Hobbs, et al.,

Chronically 11] Children and Their

Families. pp. 62-101 (1985). Financial

strain due to unreimbursed expenses for

medical care or related services adds

29

substantially to that stress. Id. at

89. The consequences of such stress are

high in both human and financial costs.

Such consequences include increased fam-

ily disintegration, mental and physical

illness among all family members, home-

iessness, child abuse, substance abuse,

and a variety of other manifestations of

family dysfunction. See generally id.

Each of these consequences, in turn, may

increase demand for various state-funded

benefits and services. For an undeter-

minable number of families, SSI could

ease the strain sufficiently to prevent

such consequences, and thus to obviate

the need for additional state-funded

services.

Because Congress intended to place

the burden of caring for low-income dis-

30

abled children on the federal govern-

ment, the cost of services provided to

them and their families through these

various types of programs is an unwar-

ranted drain on state budgets. Thus, by

adopting an eligibility determination

policy that excludes large numbers of

severely disabled children, SSA has un-

dermined the legislative purpose and

circumvented the will of Congress.

II. THE COURT NEED NOT DEFER TO THE

SOCIAL SECURITY ADMINISTRATION'S

ERRONEOUS INTERPRETATION OF THE

GOVERNING STATUTE.

The Court of Appeals correctly con-

cluded that the regulations at issue are

invalid because they are inconsistent

with the clear intent of Congress.

Zebley v. Bowen, 855 F.2d 67, 73-74, 76

.

(3d Cir. 1988). Accord Marcus vy. Bowen,

696 F. Supp. 364, 382-64 (N. o. Ill.

1988), appeal pending, No. 89-2717 (7th

Cir.). Under the circumstances, the

Court of Appeals also properly declined

to defer to the SSA's contrary interpre-

tation of that statute. 6855 F.2d at

72-73. Accord Marcus v. Bowen, 696 F.

Supp. at 384.

Whether an agency's regulations ex-

ceed statutory authority is a pure ques-

tion of statutory construction for the

court to decide. NLRB v. United Food

and Commercial Workers Union 484 U.S.

112, 105 S. Ct. 413, 421 (1987), relying

on INS vy. Cardoza-Fonseca, 480 U.S. 421,

446-49 (1987), and Chevron U.S.A... Inc.

vy. Natural Resources Defense Council.

Inc. 467 U.S. 837, 842-43 and un.

.

(1984). In answering that question, the

court first tries to determine congres-

sional intent using “traditional tools

of statutory construction,” namely, the

plain language, structure, and history

of the statute. NLRB, 4864 U.S. 8

108 S. Ct. at 421 and cases cited: see

INS, 480 U.S. at 449. It a clear con-

gressional intent can be discerned in

this manner, then the agency's regula-

tions must be “fully consistent” with

Congress's intent. NLRB. 484 U. S.

a t „ 108 S. Ct. at 421. It is only

where these tools fail to reveal Con-

gress‘s intent that any deference to the

agency's interpretation of the governing

statute is appropriate. Ea. Regents

of University of California v. Public

Employment Relations Board, 485 U.S.

589, 108 S. Ct. 1404, 1412 (1988)

-33-

("Because we have been able to ascertain

Congress's clear intent based on our

analysis of the statutes and their leg-

islative history, we need not address

the issue of deference to the agency”);

Board of Governors. FRS v. Dimension

Financial Corp., 474 US. 361, 368

(1986), quoting Chevron, 467 U.S. at

842-43 ("If the statute is clear and un-

ambiguous ‘that is the end of the mat-

ter, for the court, as well as the

agency, must give effect to the unam-

biguously expressed intent of Con-

gress

The Court of Appeals properly recog-

nized that the starting point for ascer-

taining Congress's intent is the plain

language of the statute itself. 855

F. zd at 73. EL.. American Tobacco Co.

v. Patterson, 456 U.S. 63, 68 (1982).

1 **

Since courts must assume that the ordi-

nary meaning of the words used by Con-

gress expresses Cou,ress's intent, that

plain language is conclusive unless

there is a clearly expressed legislative

intention to the contrary. Id. «at 68,

72 n.6, 75 and cases cited. iIn-

deed, this Court often decides cases

solely on the basis of the plain lan-

guage without resort to legislative his-

tory. Ea, Bethesda Hosp. Ass'n v.

Bowen, 485 U.S. 399, „ 108 8. Ct.

1255, 1258 (1988); Burlington Northern

12/ See also Rodriguez v. U.S., 480

U.S. 522, 525 (1987); Burlington North-

ern R,. Co. vv. Oklahoma Tax Commission

481 U.S. 454, 461 (1987); Escondido Mut.

Water Co, v. LaJolla Band of Mission

Indians, 466 U.S. 765, 772 (1984);

Banner Institute. Inc.,

460 U.S. 103, 110, 118 (1983); Griffin

v. Oceanic Contractors. Inc. 458 U.S.

564, 570-571 (1982).

=~ =

U.S. 454, 461 (1987). See also American

Tobacco Co., 456 U.S. at 75 ("Going be-

hind the plain language of a statute in

search of a possibly contrary congres-

sional intent is a ‘step to be taken

cautiously,’ even under the best of

circumstances.").

After comparing the plain language

of 42 U.S.C. § 1382c(a)(3)(A) (1982) to

the Secretary's regulations, the Court

of Appeals properly concluded that,

in the statutory directive that

‘any’ impairment may be disabling if

severe enough, Congress has clearly

expressed an intention that children

be given the opportunity for indi-

vidual evaluations comparable to the

residual functional capacity assess-

ment for adults. This intent is

contrary to that of the agency,

which is to restrict children to

listed impairments.

855 F.2d at 76.47 There is nothing

13 The Court of Appeals conclusion is

bolstered by the use of the words

(footnote continued)

~~

in the legislative history which clearly

expresses a contrary legislative in-

tent. Indeed, as the Court of Appeals

discussed, the legislative history sup-

ports the plain meaning of the statute.

855 F. 2d at 74-75. Accord Marcus v.

Bowen, 696 F. Supp. at 370-71. Accord-

ingly, the Court of Appeal's decision

that the Secretary's regulations are

invalid should be affirmed.

CONCLUSION

For the reasons set forth herein,

this Court should affirm the decision of

(footnote continued)

“comparable severity” in 42 U.S.C.

§ 1382c(a)(3)(A) (1982).

12

the Court of Appeals for the Third

Circuit.

Respectfully submitted,

JAMES M. SHANNON

ATTORNEY GENERAL

Commonwealth of Massachusetts

uza E. Durrell

Counsel of Record

Judith Fabricant

Assistant Attorneys General

One Ashburton Place, Rm. 2019

Boston, Massachusetts 02108

(617) 727-2200

Don Siegelman, Attorney General

State of Alabama

Douglas B. Bailey, Attorney General

State of Alaska

Robert K. Corbin, Attorney General

State of Arizona

John Steven Clark, Attorney General

State of Arkansas

Clarine Nardi Riddle, Acting

Attorney General, State of

Connecticut

(appearances continued on next page)

38

Charles M. Oberly, III, Actorney

General, State of Delaware

Herbert O. Reid, Sr., Acting

Corporation Counsel; Charles L.

Reischel, Deputy Corporation

Counsel, Appellate Division,

District of Columbia

Neil F. Hartigan, Attorney General

State of Illinois

Linley E. Pearson, Attorney General

State of Indiana,

Thomas J. Miller, Attorney General

State of Iowa

Robert T. Stephan, Attorney General

State of Kansas

William J. Guste, Jr., Attorney

General, State of Louisiana

J. Joseph Curran, Jr., Attorney

General, State of Maryland

Hubert H. Humphrey, III, Attorney

General, State of Minnesota

William L. Webster, Attorney General

State of Missouri

Marc Racicot, Attorney General

State of Montana

Robert M. Spire, Attorney General

State of Nebraska

-39-

John P. Arnold, Attorney General,

State of New Hampshire

Robert Abrams, Attorney General

State of New York

Ernest d. Preate, Jr. Attorney

General, Commonwealth of Pennsylvania

James E. O'Neil, Attorney General

State of Rhode Island

Roger A. Tellinghuisen, Attorney

General, State of South Dakota

Charles W. Burson, Attorney General

& Reporter, State of Tennessee

Jim Mattox, Attorney General

State of Texas

R. Paul Van Dam, Attorney General

State of Utah

Jeffrey L. Amestoy, Attorney General

State of Vermont

Joseph B. Meyer, Attorney General

State of Wyoming

September, 1989

-40-

Hubert H. Humphrey, III. Amorney General

State of Minnesota

William L Webster. Attorney General

State of Missoun

State of Montana

Robert M Spire, Attorney General

State of Nebraska

John P Arnold. Attorney General

State of New Hampshire

Rober Abrams. Attorney Generu.

State of New York

Ernest D Preate, Jr, Attorney General

Commonwealth of Pennsy!y ama

James E O'Neil, Attorney General

State of Rhode Island

Roger A. Tellinghuisen, Attorney General

State of South Dakota

Charles W Burson, Attorney General & Reporter

State of Tennessee

Jum Mattox. Attorney General

State of Texas

KR Paul Van Dam Attorney General

State of Utah

Jeffrey L. Amestoy, Attorney General

State of Vermont

Joseph B Meyer, Attorney General

State of W yormng