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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Baker v. State, Dept of Health & Social Services (08/29/2008) sp-6301

Baker v. State, Dept of Health & Social Services (08/29/2008) sp-6301, 191 P3d 1005

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.

            THE SUPREME COURT OF THE STATE OF ALASKA

CARMEN S. BAKER and ) Supreme Court No. S-12598
CATHERINE BURTNESS, on behalf )
of themselves and all those similarly ) Superior Court No. 3AN-06-10871 CI
situated, )
)
Petitioners, )
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT ) No. 6301 - August 29, 2008
OF HEALTH AND SOCIAL )
SERVICES, KARLEEN JACKSON, )
in her official capacity as Commissioner )
of the Department, DIVISION OF )
SENIOR AND DISABILITIES )
SERVICES, and ROD MOLINE, in his )
official capacity as Director of the )
Division, )
)
Respondents. )
)
Petition  for   Review
          from  the  Superior Court  of  the  State  of
          Alaska,  Third Judicial District,  Anchorage,
          Peter A. Michalski, Judge.

          Appearances:   James  J.  Davis,   Jr.,   and
          Goriune  Dudukgian, Northern Justice Project,
          Anchorage, for Petitioners.  Joanne M. Grace,
          Assistant  Attorney General,  Anchorage,  and
          Talis  J. Colberg, Attorney General,  Juneau,
          for Respondents.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION
          In  2006 the State of Alaskas Department of Health  and
Human  Services implemented changes in the administration of  its
Personal Care Attendant program which resulted in the termination
or  reduction of in-home care services to over 1,000 individuals.
This  class action challenges the sufficiency of the notices sent
by  the  state to those individuals whose services were  reduced.
Because the notices did not sufficiently explain the reasons  for
reductions  in service, we hold that they failed to  comply  with
constitutional  and  regulatory  requirements.   Accordingly,  we
reverse the decision of the superior court and remand for further
proceedings.
II.  FACTS AND PROCEEDINGS
     A.   The Personal Care Attendant Program
          Through Medicaid, the State of Alaska provides personal
care  assistance  to  low-income, disabled  Alaskans  who  cannot
independently perform basic tasks of daily life such  as  eating,
bathing, and using the toilet.  The purpose of the Personal  Care
Attendant (PCA) program is to enable an individual, of  any  age,
whose needs would otherwise result in placement in an acute  care
hospital   or  nursing  facility  or  loss  of  that  individuals
employment solely related to activities of daily living (ADL)  to
remain at home or prevent job loss.1
          Until  recently, an individuals PCA needs were assessed
ad  hoc by one of several non-governmental PCA-service providers.
There  was  little  or no uniformity among service  providers  or
oversight from the state, so recipients with similar needs  could
receive vastly different levels of service.  It is not clear from
the   record  in  this  case  how  often  recipients  needs  were
reevaluated under this regime.
          In  2006  the state legislature  concerned that program
funding was not being evenly or judiciously distributed  directed
the  Department  of  Health and Human Services  to  overhaul  the
programs  administration.  In order to  establish  standards  for
determining (1) initial eligibility for PCA services and (2)  how
many  service  hours  to  provide, the department  developed  the
Personal  Care  Assessment Tool (PCAT), an  objective  assessment
tool  to  evaluate the actual needs of recipients  on  an  annual
basis.2  The PCAT is a thirteen-page worksheet-like form that  is
filled  out by a state-contracted registered nurse (assessor)  on
the  basis  of  information gathered during a personal  interview
with  a  current  or  prospective PCA-service recipient  in  that
persons  home.  During  the interview,  the  assessor  personally
observes  the  individual  in  her  home  environment  and   asks
questions  of  the individual and the individuals caregivers  and
family  members about the individuals living situation, abilities
and  disabilities,  cognition, behavior, nutrition,  and  medical
needs.   From  this  raw  information,  the  assessor  assigns  a
numerical  code to each of hundreds of items on the  PCAT  form.3
The  assessor  uses some of [these numbers] to score  eligibility
for  PCA services, and, if the individual is deemed eligible, the
assessor may refer to the numbers . . . in determining the amount
of PCA services a recipient needs.
          The  final  result of this process is a PCAT Authorized
          Service Plan (service plan).  The service plan is a four-page
chart that notes for each of several defined activities the  time
estimate for that activity, considerations for that activity, and
finally, the departments determination of how often and  for  how
long the recipient will receive assistance for that activity.4
          The  PCAT  was  adopted in April 2006.5   In  the  nine
months  that followed, the personal care needs of over 1,000  PCA
service recipients were reassessed using the PCAT.  On the  basis
of  those  assessments,  the services  of  901  individuals  were
reduced,  and 102 were terminated.  As to sixty-five others,  the
department  was  uncertain  whether  their  services  were  being
increased or decreased, because the old service plans [were]  not
available for comparison.
     B.   Notice of Reduction of Benefits
          The  department drafted form letters to notify affected
PCA  service  recipients that their services were  to  be  either
terminated   or   reauthorized.    Among   other   things,    the
reauthorization  (reduction6) notice stated that new  regulations
had been implemented requiring all recipients to be reassessed by
the standardized  PCAT; explained that the assessment will be the
basis  upon  which  a  service plan will be  developed;  reminded
recipients  that a state contractor had met with them  to  assess
their needs using the PCAT; and informed recipients that, [a]s  a
result  of the needs identified in the PCAT and . . .  review  of
other  supportive  documentation,  the  [state]  has  approved  a
service  plan  authorizing [service recipients]  to  receive  [X]
hours  per week of personal care services.  The notice summarized
the  services that would be provided and referenced the  detailed
service plan, which was attached.
     C.   Proceedings
          In August 2006 two individuals who had received notices
that  their  services were being reduced or  terminated  filed  a
class-action  lawsuit.   Carmen  Baker  and  Catherine   Burtness
(collectively   Baker)  alleged  that  the  departments   notices
violated  procedural due process because they  failed  to  convey
critical  and  necessary data that would allow the recipients  to
appeal   the   departments  determination.   Baker  requested   a
temporary  restraining order and preliminary injunction requiring
that  the  department  (1) re-serve all class  members  with  due
process  compliant  notices;  (2)  stay  upcoming  administrative
hearings;  and  (3) reinstate the PCA benefits of all  recipients
who  received  defective notice that their services  were  to  be
reduced or terminated.
          During  pendency  of  this  litigation  the  department
revised  the notices, though without conceding that they were  in
any  way  deficient.   The termination notice  was  substantially
altered,  but  the  department made only minor and  insignificant
adjustments to the reduction notice at issue here.7  The  revised
notices  were  issued after October 12, 2006.  Approximately  647
individuals received the original reduction notices issued  prior
to that date.
          The  court granted Bakers motion, but only as to  those
individuals  who had received the original, unrevised termination
letter issued prior to October 12, 2006.  It held that, while the
revised  notices (both termination and reduction)  complied  with
          due process, the old version of the termination letter was
insufficient; it lack[ed] any specific information concerning the
PCA  recipients  personal evaluation or PCAT calculation,  giving
the  letters  recipient very little direction as  to  whether  to
proceed with their appeal.  As to the reduction letters (both the
original  and  revised  versions)  and  the  revised  termination
letters, the court held that they were sufficient in this regard.
          Baker  filed  this petition for review on February  12,
2007.   Asserting  that the original reduction notice,  like  the
termination notice, did not comply with due process,  Baker  asks
that  we overturn the superior courts denial of injunctive relief
for   those   who   received  the  original   reduction   notice.
Specifically,  Baker asserts that the reduction notices  fail  to
explain, in any understandable way, the standards and methodology
used  by  the State in reaching its ultimate decision  to  reduce
recipients  PCA  benefits.  Additionally, Baker argues  that  the
notice  is misleading.  The department did not oppose this courts
consideration of Bakers petition, and we granted it.
III. STANDARD OF REVIEW
          The  parties  agree  that  state  action  reducing  the
benefits  at issue here invokes procedural due process concerns.8
Whether  the departments original reduction notice complied  with
due  process presents a question of constitutional law  which  we
review de novo, adopting the most persuasive rule of law in light
of precedent, reason and policy.9

IV.  DISCUSSION
     A.   Due  Process Requires that the State Provide the Reason
          for Its Action.
          In  Goldberg v. Kelly10 the United States Supreme Court
held  that  to  satisfy  constitutional  due  process  an  agency
contemplating  a  termination or reduction of  public  assistance
benefits  must  provide the recipient timely and adequate  notice
detailing  the  reasons  for  a  proposed  termination,  and   an
effective   opportunity  to  defend.11   The  underlying   policy
rationale is that recipients of public assistance benefits should
be  afforded  a  degree  of  protection  from  agency  error  and
arbitrariness  in the administration of those benefits.12   These
constitutional  mandates have been embodied in  the  federal  and
state   regulations  governing  administration  of  the  Medicaid
program, which, among other things, require that a notice provide
the  reasons  for  the [agencys] intended action.13         Baker
argues  that  the department has failed to meet this  requirement
because   the notices do not show the methodology, standards,  or
calculations that the department used to determine benefits.  The
department responds that considering  the states interaction with
the  recipients  before it sent the letters and  the  information
included  in  the letters, recipients had notice  of  the  states
revised  assessment tool, the information on which the assessment
was  based, and the reasons for the states determination  of  the
level of benefits they were entitled to receive.
          As a preliminary matter, we reject the suggestion  that
notice  here  can be broadly construed to include  not  only  the
written  letter, but also the information the recipients  already
had   about  the  assessment  process  and  the  information  the
          recipients already had about themselves.  The department urges us
not  to  evaluate  the  letter  in a  vacuum,  but  although  the
Constitution arguably allows for a broad construction of notice,14
the  federal regulations applicable here do not: Section  431.201
defines notice as a written statement that meets the requirements
of  431.210.15  Further, we agree with diverse authorities holding
that although an agency may have latitude to provide notice by  a
variety of media under Goldberg, the agency must actively provide
complete  notice16  and  should not  improperly  place[]  on  the
recipient  the burden of acquiring notice[;] due process  directs
[the  agency] to supply it.17  For these and other reasons,18  we
hold  that the department cannot presume that recipients  already
have  a  basis for understanding why services are being  reduced;
whatever  information the department is required to provide  must
be part of the written notice itself.
     B.   To  Satisfy Due Process, the Notice Must Show  How  and
          Why  the Department Determined that a Reduced Level  of
          Benefits Was Warranted.
          Beyond  establishing that adequate notice must detail[]
the reasons for a proposed termination of benefits, Goldberg does
not  specify what information the notice must provide to  satisfy
due  process.19   The  obvious challenge for any  court  applying
Goldberg is to determine what level of detail is required.  As  a
first step, many courts have invoked the balancing test set forth
in Mathews v. Eldridge20 to consider what burden can reasonably be
placed  on  an  agency  to  eliminate  the  risk  of  erroneously
depriving  an  individual of a benefit in light of the  value  of
that benefit to the individual.21        Where the recipient has a
brutal need22 for the benefit at issue, as in the case of welfare
recipients,  courts have traditionally required that agencies  go
to   greater  lengths   incurring  higher  costs  and   accepting
inconveniences  to reduce the risk of error.23  Recipients of PCA
services  are  arguably  as dependent on their  benefits  as  are
welfare recipients; without them, they may be unable to do things
as  basic as bathing, preparing a meal, or using the toilet.   An
error  in the agencys determination to reduce PCA services  could
result in serious harm to the service recipient.  It follows that
the agency should be required to make every reasonable effort  to
reduce  the risk of erroneously depriving PCA services recipients
of their benefits.24  In the context of notice, such effort might
amount  to  erring  on  the  side of providing  too  much  detail
respecting  the  basis for the agencys decision rather  than  too
little.
          Citing  Ford v. Shalala,25 Baker asserts that  to  meet
this  high standard the notice must explain the formula by  which
the  benefit amount was calculated, identify the underlying facts
upon  which the calculations were based, and include a  breakdown
of  the sums attributable to each factor in the equation so  that
benefit  recipients  can  check the  factual  [and]  mathematical
accuracy of [the] intended action.26  We agree that decisional law
strongly  supports  the  position that due  process  requires  an
explanation of the specific reasons for reducing . . . benefits.27
Although some courts have upheld notices that failed to set forth
the  calculations used by an agency to determine a  reduction  of
benefits,28  these cases can be distinguished,29 and  the  higher
          standard in Vargas should govern here.30  That is, to the extent
feasible, the department should be required to show how  and  why
it determined that a reduction in PCA services was in order.
          The  department  does  not  dispute  that  the  Shalala
standard applies where numerical calculations are critical to the
determination  of eligibility or benefit amount.  But  it  argues
that  Shalala is inapplicable here because there are no numerical
calculations  to  show;  rather,  the  department  asserts,   its
analysis   is   subjective   a  personal  assessment   of   human
capabilities.   The final product of the departments   assessment
is  the service plan, a line-item allotment of service-minutes to
various  activities.   The  department claims  that  these  final
numbers  are  a  result  of applying standards31  to  information
provided by the individual, a process that requires some  element
of human judgment, not a calculator.
          While  it  is  true that the department is not  working
from a strict mathematical formula, it must still comply with the
spirit  of  the law, which requires that it be as transparent  as
possible in its methodology.  Despite some subjective elements in
the  departments decision making, we agree with  Baker  that  due
process  demands  that  recipients facing a  reduction  of  their
public  assistance benefits be provided a meaningful  opportunity
to  understand,  review,  and, where appropriate,  challenge  the
departments action.  The state must do more than it has  done  to
ensure  that  recipients  have  the  information  they  need   to
understand  and,  if necessary, to challenge  the  states  action
concerning their benefits.
     C.   Inclusion  of  the  PCAT  Form with  the  Notice  Would
          Satisfy Due Process.
          To  the  end of providing sufficient detail to  satisfy
due process, Baker requests that the department provide a copy of
the recipients PCAT form  by all accounts the basis upon which  a
service  plan [is] developed  with the notice.  At oral argument,
the  department conceded that this is simple for the state to  do
and  noted  that  it was already doing this.  But the  department
argues that due process does not require inclusion of the PCAT so
as  to  invalidate those notices that were sent without  it.   It
also  asserts, without explanation, that to require inclusion  of
the  PCAT would be an undue burden on the department and that the
information provided by the PCAT would not assist a recipient  in
preparing an appeal.
          Whether  due process requires the department to provide
notice  recipients a copy of the PCAT form turns on  whether  the
information  provided  in  the form (1)  played  a  role  in  the
assessors  determination of how many hours of service  should  be
authorized;  (2) would assist the recipient in understanding  why
service  hours were being reduced; (3) would enable the recipient
to  review  the agencys assessment of his or her needs;  and  (4)
would  assist the recipient in preparing a meaningful defense  in
the   event  that  he  or  she  wishes  to  appeal  the   agencys
determination.32
          The  PCAT is the critical document translating the  raw
information provided by the individual to authorized hours of PCA
services.   The  assessor asks questions of  the  individual  and
codes  the  response to each question with a number  value.   The
          assessor then uses [these numbers] to score eligibility for PCA
services and may refer to the numbers to determine the amount  of
benefits to provide.  The department asserts that the numbers  on
the PCAT are merely shorthand symbols representing the extent  to
which  the  individual  is  able  to  perform  a  given  activity
independently.  But it is clear that the number assigned to  each
question  reflects  the  assessors attempt  to  distill  raw  and
sometimes  subjective  information into standardized  form.   The
department itself notes that the model assessment tool from which
the   PCAT  was  derived  provides  an  accurate  foundation  for
measuring   the  social,  medical,  and  nursing  needs   of   an
individual.   Moreover,   the  department   concedes   that   the
legislative mandate that led to the development of the  PCAT  was
to   assess  individuals  according  to  uniform  measures.   The
department  refers to the PCAT as a scoring sheet[].   Regardless
of whether the numbers are mere code or shorthand, it is apparent
that  they  have a degree of influence on the ultimate amount  of
service  hours allotted to the individual.  There may  not  be  a
mathematical formula per se, but the PCAT is the departments best
effort  to  reduce  subjective information   the  acuity  of  the
assessor   into  objective  form.   The  PCAT  clearly  plays   a
significant role in the final determination.
          The  department asserts that the PCAT would not provide
recipients  with  information  that  would  contribute  to  their
decision  whether to request, or how to prepare for,  a  hearing.
We  disagree.   It  is  true  that if a recipient  disputes,  for
example, that fifteen minutes, twice a day is sufficient time  to
prepare necessary light meals, she can request a hearing based on
nothing  more  than her belief that the agency has underestimated
the  time  that it takes to make a sandwich on her service  plan.
But  if  the  recipient wishes to appeal the reduction  of  hours
generally,  it would be helpful to understand the basis  for  the
agencys  determination,  and  this cannot  be  gleaned  from  the
service  plan  alone.  The PCAT provides insight  into  what  the
assessor   understood   of   the   individuals   abilities    and
disabilities, and while this information may not be necessary  to
perfect  an appeal to the agency, it may well contribute  to  the
recipients decision to initiate one.
          The  goal  of  the assessment process is  to  take  raw
information  from  the service recipient and  translate  it  into
hours  of service needed.  This requires analysis, and it follows
that  documentation  of  that analysis, to  the  extent  that  it
exists, should be provided to the recipient.  It may be that  the
PCAT  is  only  a  part of that analysis, but it  is  a  critical
component,  and  the  department has not  advanced  a  compelling
argument  for  why  it should not include the PCAT  or  otherwise
provide the information that it used to determine the numbers  on
the  service plan.  If the only burden is an administrative  one,
the  cost and inconvenience of copying the PCAT and attaching  it
to the notice is not unreasonable under the circumstances here.
V.   CONCLUSION
          We   REVERSE  the  superior  courts  holding  that  the
reduction notices at issue comply with due process and REMAND for
further proceedings consistent with this opinion.
_______________________________
     1    7 Alaska Administrative Code (AAC) 43.750(a) (2007).

     2    7 AAC 43.750(c); 7 AAC 43.751.

     3     The  meaning  of  the  numbers varies  with  different
categories   of   information.   For  example,   in   Section   A
(Professional  Nursing  Services)  0  means  that  the  indicated
[c]ondition/treatment [was] not present in the last 7 days  while
3  means that it was present 5-6 days a week.  Alternatively,  in
Section  C4B (Cognition) 0 means Can recall details and sequences
of   recent   experiences  and  remember  names   of   meaningful
acquaintances, while 3 means Cannot recall entire events or names
of spouse or other living partner even with prompting.  Generally
speaking, a 0 is better; higher numbers indicate poorer health or
greater need of assistance for the given activity.

     4     For  example, the activity bathing is defined  as  How
person takes full-body bath/shower, sponge bath, transfers in/out
of  tub/shower.  (EXCLUDE  washing  of  back,  hair).   The  time
estimate for bathing is 15-30 minutes, and considerations include
If  shower  used  and  shampoo done, then  consider  as  part  of
activity[],  assistive devices for independence.  The  particular
recipient  described in the example was allotted  thirty  minutes
per  day, seven days per week for a total of 210 minutes per week
of bathing services.

     5    7 AAC 43.751.

     6     Throughout this litigation, the parties refer  to  the
reauthorization  notice  as  a  reduction  notice,  but   neither
reduction nor any similar words are anywhere on the face  of  the
notice;  it states only that services have been authorized.   For
simplicity,  we  will  continue to  refer  to  the  notice  as  a
reduction  notice,  recognizing, however, that  the  state  would
prefer not to characterize it as such.

     7     Specifically, the department deleted the recitation of
the  minutes approved at the bottom of page 1 and the top of page
2.   Second, [it] included a new box at the top of the letter for
administrative purposes.

     8    See Goldberg v. Kelly, 397 U.S. 254, 261-62 (1970).

     9     See Green Party of Alaska v. State, 147 P.3d 728,  732
(Alaska 2006); Treacy v. Municipality of Anchorage, 91 P.3d  252,
260 (Alaska 2004).

     10    397 U.S. 254.

     11    Id. at 267-68.

     12     See  Banks  v. Trainor, 525 F.2d 837, 842  (7th  Cir.
1975).

     13     42  C.F.R.   431.210(a)-(e)  (2007)  (requiring  that
notices  issued  in  the administration of the  federal  Medicaid
program  provide  (1) a statement of what action  the  department
intends to take; (2) the reasons for the action; (3) the specific
regulation  supporting  the action; (4)  an  explanation  of  the
individuals right to request a hearing; and (5) an explanation of
the  circumstances  under which the benefit  is  continued  if  a
hearing is requested); see also 42 C.F.R.  431.206; 7 AAC 49.070.

     14     See Goldberg, 397 U.S. at 268.  In that case,  notice
amounted to a letter from the agency and a personal meeting  with
a  caseworker.   The Court did not describe the contents  of  the
letter, but it saw no constitutional deficiency in the content or
form  of  the  notice and was satisfied that  the  recipient  was
adequately  informed  of  the legal and  factual  bases  for  the
agencys position.  Id.  The Court added that this combination [of
a  written  letter and a personal meeting] is probably  the  most
effective method of providing notice to the recipient.  Id.;  see
also  Rosen v. Goetz, 410 F.3d 919, 931 (6th Cir. 2005)  (holding
that due process does not specifically require notice to come  in
just one letter, as opposed to two).

     15    42 C.F.R.  431.201 (emphasis added).

     16     Ortiz  v. Eichler, 616 F. Supp. 1046, 1062  (D.  Del.
1985).

     17     Schroeder v. Hegstrom, 590 F. Supp. 121, 128 (D.  Or.
1984)  (quoting Philadelphia Welfare Rights Org. v. OBannon,  525
F. Supp. 1055, 1061 (E.D. Pa. 1981)); see also Vargas v. Trainor,
508  F.2d 485, 489 (7th Cir. 1974).  In Vargas, the agency argued
that the notice sufficed because it invited the recipient to seek
additional information; the court rejected this, stating that the
notice  recipient  would  be unable or  disinclined,  because  of
physical handicaps and, in the case of the aged, mental handicaps
as  well, to take the necessary affirmative action. Id. The court
was  further concerned that, given the human tendency to  presume
that  an action taken by a government agency is correct, many  of
the mistakes that will inevitably be made will stand uncorrected.
Id.  at  490; see also Schroeder, 590 F. Supp. at 127-28  (citing
Dilda v. Quern, 612 F.2d 1055, 1057 (7th Cir. 1980)).

     18     For  one, in the case of Petitioner Burtness,  nearly
three  months elapsed between her personal assessment on  May  19
and  issuance  of notice on August 11.  Further,  the  assessment
meeting does not afford protection against agency errors  as  the
recipient  is  not given the opportunity to review the  completed
PCAT   for  obvious  misinterpretations,  misunderstandings,   or
clerical errors.

     19    397 U.S. at 267-68.

     20    424 U.S. 319 (1976).

     21    Id. at 334-45; see also Schroeder, 590 F. Supp. at 128-
29.

     22    Goldberg, 397 U.S. at 261.

     23     See Schroeder, 590 F. Supp. at 128-29 (citing several
cases,  including Dilda v. Quern, 612 F.2d 1055, 1057  (7th  Cir.
1980); Vargas v. Trainor, 508 F.2d 485, 489 (7th Cir. 1974);  and
Philadelphia Welfare Rights Org. v. OBannon, 525 F.  Supp.  1055,
1061 (E.D. Pa. 1981)).

     24     See Goldberg, 397 U.S. at 261 (holding that extent to
which  procedural due process must be afforded the  recipient  is
influenced by the extent to which he may be condemned  to  suffer
grievous  loss and noting recipients brutal need for the services
at  issue);  Ford v. Shalala, 87 F. Supp. 2d 163,  182  (E.D.N.Y.
1999)   (holding   that  even  substantial  governmental   burden
expensive  information gathering and processing  system  overhaul
and  computer  reprogramming that would take up to two  years  to
implement  must be met in order to provide specific reasons where
government  proposed  terminating  or  reducing  recipients   SSI
benefits).   See  also  Vargas,  508  F.2d  485  (holding  notice
inviting  benefits  recipients  to  seek  additional  information
insufficient  where recipients were often unable,  by  virtue  of
physical  or  mental  handicaps, to  take  necessary  affirmative
action).

     25    87 F. Supp. 2d 163.

     26     Id.  at 178 (citations omitted); see also Dilda,  612
F.2d  at  1057; Banks v. Trainor, 525 F.2d 837, 841-42 (7th  Cir.
1975).

     27    Schroeder, 590 F. Supp. at 128 (emphasis added) (citing
Vargas v. Trainor, 508 F.2d 485 (7th Cir. 1974)).

     28     See Garrett v. Puett, 707 F.2d 930, 931-32 (6th  Cir.
1983)  (declining to follow the decisions of the Seventh  Circuit
in Vargas, Dilda, and Banks).

     29     Courts  have easily distinguished Garrett  and  cases
similarly adverse to Vargas on the basis that they address across-
the-board changes based on changes in state or federal  law,  not
the  reduction or termination of benefits on an individual, case-
by-case basis. Ortiz v. Eichler, 794 F.2d 889, 894 (3d Cir. 1986)
(distinguishing Garrett, 707 F.2d 930); Schroeder, 590  F.  Supp.
at  129 (distinguishing Garrett, 707 F.2d 930).  Garrett is  also
distinguishable   in  that  the  statute  there   only   required
consideration of an additional factor in the computation, whereas
in  the  Seventh  Circuit cases, the very method  of  calculating
benefits  was changed. See, e.g., Banks, 525 F.2d at 839  (noting
that  the income method of calculating benefits replaced a method
which  was  based  on a percentage of the food allowance  for  an
individual household).

     30    See supra note 17.

     31     The department claims the only standards it uses  are
clearly   indicated   on  the  service  plan,   referencing   the
considerations  that factor into the assessors  determination  of
how many minutes to allot to each activity.

     32     See,  e.g., Ortiz, 616 F. Supp. 1046, 1062  (D.  Del.
1985).

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