Risinger v. ConcannonRisinger v. Concannon
MEMORANDUM OF DECISION AND ORDER
In this lаwsuit alleging violations of the federal Medicaid Act, 42 U.S.C. §§ 1396 et seq., and 42 U.S.C. § 1983, Plaintiffs, parents suing on behalf of two children allegedly eligible for and enrolled in the Maine Medicaid program, and Disability Rights Center of Maine, Inc., have moved for class certification. See Plaintiffs’ Motion for Class Certification and Incorporated Memorandum of Law (Doc. No. 11) (hereinafter “Plaintiffs’ Motion for Class Certification”). For the reasons that follow, the Court will, after modification of the class description, grant Plaintiffs’ Motion for Class Certification.
BACKGROUND
Plaintiffs, Michael Risinger and Susan Risinger, parents of Jill Risinger, a thirteen-year-old suffering from Angelman’s Syndrome; Annmarie Fitzpatrick, parent of Eric Fitzpatrick, a fourteen-year-old suffering from Attention Deficit Hyperactivity Disorder, Post Traumatic Stress Disorder, sensory integration difficulties, speech and language difficulties, a history of abuse and neglect, and fetal alcohol syndrome; and the Disability Rights Center of Maine, Inc. have brought this suit to challenge the alleged failure of Defendants Kevin Concannon, Commissioner of Maine Department of Human Services (hereinafter “DHS”), and Lynn Duby, Commissioner of Mаine Department of Mental Health and Mental Retardation and Substance Abuse Services (hereinafter “DMHMRSAS”), to arrange for and to provide timely, adequate, and reliable screening, case management, and in-home mental health services to children eligible for such services under the Early and Periodic Screening, Diagnosis and Treatment (hereinafter “EPSDT”) provisions of the federal Medicaid Act, 42 U.S.C. §§ 1396a(a)(43),
Plaintiffs originally moved for certification under Rule 23(b)(2) to file suit on behalf of the following class:
All current or future recipients of Medicaid in thе State of Maine who are under the age of twenty-one (21), who have a mental impairment, and for whom the State of Maine is failing to provide medically necessary in-home mental health services as and to the extent required in order to correct or ameliorate the mental impairment.
Plaintiffs’ Motion for Class Certification at 1. Defendants opposed the certification of this class.
After consideration of the parties’ briefs, the Court held oral argument on the issue of class certification. At the oral argument, the Court and counsel discussed a modified class definition. Plaintiffs’ proposed class for certification under Rule 23(b)(2) is now defined as:
All current or future recipients of Medicaid in the state of Maine who are under the age of twenty-one (21) years (who do not “opt out” of their entitlement to in-house health services) who are not receiving or will not timely receive in-home mental health services under the Early and Periodic Screening, Diagnosis and Treatment provisions of the Federal Medicaid Act, 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)(5), in compliance with those рrovisions and those of 42 U.S.C. § 1396a(a)(30) and 42 C.F.R. § 441.61b, and who are otherwise eligible to receive such services, due to the failure of Defendants to arrange for and provide: (1) a timely, adequate, and reliable screening process to determine eligibility for such services; (2) case management procedures effective to secure timely and adequate provision of such services to them once determined to be eligible; or (3) the delivery of prescribed services.
Defendants continue to press their objections to this nеw proposed class definition, but have not raised any additional arguments to the redefined class.
DISCUSSION
Federal Rule of Civil Procedure 23 sets forth a two-part analysis for determining whether to allow a member or members of a class to sue as representative parties on behalf of the class. First, the named plaintiffs and the proposed class must satisfy all four prerequisites of Rule 23(a): numerosity/joinder impracticability; commonality of questions of law or fact; typicality of the claims and defenses filed by the representative рarties; and adequacy of representation. See Fed.R.Civ.P. 23(a). Second, a party must satisfy one of the requirements of Rule 23(b). In the instant case, Plaintiffs have moved for certification under Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Plaintiffs bear the burden of establishing the fulfillment of these requirements. See Curtis v. Comm’r. Maine Dep’t. of Human Servs.,
Rule 23 requires that a class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1).' Plaintiffs argue that the proposed class satisfies this numerosity requirement, offering the Court evidence of Defendants’ own estimation that as of September 2000, Defendants had placed over 500 children eligible for in-home services on waiting lists for these services. See Maine Department of Human Services Dep. (Christopher Nolan, designee) at 101-02, Plaintiffs’ Motion for Class Certification, Tab 12. In addition, Plaintiffs assert that because many members of the proрosed class have either not been placed on this list or are receiving inadequate services, Defendants’ estimate actually underestimates the number of children encompassed by the proposed class. Plaintiffs aver that the proposed class is “fluid and growing,” and argue that a number of over 500 class members is too great to allow for reasonable joinder of all individual class members, particularly in light of the class’s geographic distribution throughout the state of Maine and the financial hurdles to the class members’ individual рarticipation. Defendants dispute Plaintiffs’ characterization of the class as “fluid and growing,” and they offer exhibits in support of their assertion that the number of children on the waiting list for case management services has decreased in size to 391 youths. See O’Brien Aff. If 2, Objection to Motion for Class Certification and Memorandum of Law (Doc. No. 13) (hereinafter “Defendants’ Objection to Class Certification”), Ex. A. Plaintiffs retort that Defendants’ estimate includes only those children who have been screened and placed on waiting lists and that it, therefore, fails to include those children who have yet to be screened or who currently receive inadequate services.
The Court finds that the proposed class satisfies the numerosity requirement. Whether numerosity/joinder impracticability has been met depends on “the facts and circumstances of the particular case.” Curtis,
B. Commonality
Rule 23 also requires that the lawsuit presents “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). However, the rule does not require commonality of all questions of law or fact; “[vjarying fact patterns may underlie individual claims as long as a common pattern of unlawful conduct by the defendant is directed at class members.” Curtis,
Plaintiffs maintain that this lawsuit challenges a common pattern by Defendants of failing to provide adequate and timely screening and in-home mental health services for Medicaid-recipient youths who are eligible for such services. Plaintiffs contend that all class members are affected by the unreliability and inadequacy of the system that Defendants currently have in place. Plaintiffs also assert the following factual and legal commonalities: the class members’ Medicaid-eligible status and entitlement to EPSDT services; the allegation that Defendants’ current provision of services violates the cited provisions of the Medicaid Act; the issue of whether Defendants are complying with the reasonable promptness requirements of the Medicaid Act; and the question of whether Defendants’ current provider reimbursement rates impair Maine’s ability to meet its obligation to provide necessary and reliable services.
Defendants challenge Plaintiffs’ assertion of commonality on two grounds. First, De
The Court finds that this case presents questions of law and fact common to all members of the class. All proposed class members are young people eligible for Medicaid and in-home services as provided for by the Medicaid Act. All proposed class members are alleged to endure delays and deficiencies in the services that they need. For all class members, this injury is allegedly caused by the same practices and policies of Defendants. These allegations raise common questions of law and fact regarding the scope of Defendants’ duties under the asserted Medicaid Act provisions, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(30), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)(5), and whether Defendants’ current pоlicies and practices fulfill these duties. These commonalities are enough to satisfy the requirement of Rule 23(a)(2). See Curtis,
The Court is not persuaded by Defendants’ arguments disputing commonality. While the Court does not doubt that different diagnoses require different treatments, Plaintiffs do not challenge the diagnoses of the class members, the methods Defendants use for making these diagnoses, or the corresponding treatment plans, and they have represented that they will not do so in this case.
Defendants’ argument regarding varying geographic standards of carе is problematic on several levels. First, Defendants’ quotation of the standard of care set forth in 42 U.S.C.A. § 1396a(30)(A) fails to include the complete text of the statute. Without ruling on the applicability of this provision to Plaintiffs’ claims, the Court notes that Defendants’ recitation of a portion of the last clause of this provision attempts to frame this provision as setting forth a maximum duty to provide care and services to the extent to which they are available to the general population in a geographic area. In fact, the statute appears to set forth only a minimum standard of care by requiring Defendants’ methods and procedures to ensure that “care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” Id. (emphasis added). Given the text of the statute, the Court will not, at this point in the proceedings, decide whether Defendants’ required standard of care under the EPSDT provisions of the Medicaid Act varies throughout the State of Maine. Second, while Defendants do explain that they view the term “geographic area” to signify an area smaller than statewide and cite a case in which a district court used a five-county geographic area as a basis for comparison, see Pennsylvania Pharmacists Ass’n v. Houston,
C. Typicality
Rule 23’s typicality provision requires that “the claims or defenses of the parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). Plaintiffs assert that this requirement mandates only that named plaintiffs have a personal interest or personal injury that is linked to the alleged harm deemed common to the class. Plaintiffs’ Reply at 6 (citing Hassine v. Jeffes,
“[SJimilar considerations animate analysis” of the commonality and typicality requirements of Rule 23. Marisol A,
D. Adequacy of Representation
The adequacy provision of Rule 23 requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). A court should consider two factors in evaluating the fairness and adequacy of the protection: whether the class reprеsentatives have any conflicts of interest with the interests of the class members and “whether the plaintiffs counsel will vigorously prosecute the litigation on behalf of the class.” Curtis,
The Court finds that Rule 23(a)’s adequacy of representation requirement is met. Plaintiffs’ counsel are experienced in class litigation and have represented to the Court that they will capably pursue this litigation on behalf of the class members. See O’Keefe Aff., Plaintiffs’ Motion for Class Cert., Attach. The possibility that Plaintiffs may view higher reimbursement rates as one of the remedies that would correct the alleged flaws in the provision of Medicaid services to EPSDT-eligible youth does not render current and potential EPSDT providers the true and only beneficiaries of this litigation. Defendants’ argument regarding the reason for the alleged gap in Jill Risinger’s services raises an unresolved factual issue and addresses the merits of Plaintiffs’ allegations. Class certification is not an appropriate mechanism “to conduct a preliminary inquiry into the merits of a suit.” Wilcox v. Petit,
E. Rule 23(b)(2) Requirement
Plaintiffs move for certification under Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriаte final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R.Civ.P. 23(b)(2). Given their goal of obtaining an injunction against alleged system-wide deficiencies, Plaintiffs argue that this case is particularly appropriate for class certification under Rule 23(b)(2). Defendants, on the other hand, insist that the lack of commonality among the Plaintiff class members will require grouping of the class members into subclasses. Defendants, therefore, object to the certification of this class under Rule 23(b)(2) and argue that Rule 23(b)(3), which allows for certification of a class only when a court finds that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and that “a class action is superior to other available methods for fair and efficient adjudication of the controversy,” is more appropriate for the certification of this class.
The Court finds the discussion of the various class action categories in Allison v. Citgo Petroleum Corporation,
CONCLUSION
Plaintiffs have established that their modified proposed class satisfies the requirements of Rule 23. Accordingly, the Court ORDERS that Plaintiffs’ Motion for Class Certification be, and it is hereby, GRANTED, and the Court hereby CERTIFIES the Plaintiff Class in this case as follows:
All current or future recipients of Medicaid in the state of Maine who are under the age of twenty-one (21) years (who do not “opt out” of their entitlement to in-house health services) who are not receiving or will not timely receive in-home mental health services under the Early and Periodic Screening, Diagnosis and Treatment provisions of the Federal Medicaid Act, 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)(5), in compliance with those provisions and those of 42 U.S.C. § 1396a(a)(30) and 42 C.F.R. § 441.61b, and who are otherwise eligible to receive such services, due to the failure of Defendants to arrange for аnd provide: (1) a timely, adequate, and reliable screening process to determine eligibility for such services; (2) case management procedures effective to secure timely and adequate provision of such services to them once determined to be eligible; or (3) the delivery of prescribed services.
Notes
. In their Objection to Class Certification, Defendants also argued that the use of the word "mental impairment” defeats the assertion of commonality, suggesting that this term encompasses so many disabilities that the class wоuld lack a "common legal or factual thread that binds all class members together.” Defendants’ Objection to Class Certification at 3. The modifications made to the proposed class definition obviate the issues raised by the use of the term "mental impairment.” Similarly, Defendants’ arguments regarding those individuals who choose to opt out of the youth Medicaid system and into the adult Medicaid system before the age of twenty-one have been resolved by the modifications to the class definition.
. In questioning by the Court at oral argument, Defendаnts' counsel asserted that there was an actual and adequate administrative grievance procedure for determining challenges to individual eligibility and adequacy of care determinations which is utilized with some frequency. Plaintiffs’ counsel so acknowledged.
It is not yet apparent whether Plaintiffs will challenge the adequacy of any feature of this procedure. If that should occur, however, it is apparent that such challenge can be addressed by the Court within the scope of the request for injunctive relief made by the Plaintiffs without involving the Court in reviewing specific instances of individual determinations of eligibility for services or of the adequacy of treatment plans for individual children.
. Given the Court’s conclusion that common legal questions do exist in this case, Defendants' reliance on J.B. v. Valdez,
. The Court does not find Defendants’ citation of ' Pennsylvania Pharmacists Association particularly instructive on the manner for defining geographic area. The plaintiffs in that case defined the class to encompass only the five-county region used as a basis for comparison by that court. See Pennsylvania Pharmacists Ass'n v. Houston,
. Defendants’ documentation indicates that Defendants have divided the state of Maine into three geographic regions for the provision of child Medicaid services. See DMHRSAS Children’s Services Case Management Wait List Budget Needs, Plaintiffs’ Motion for Class Certification, Ex. 13. However, this does not establish the "extent that such care and services are available to the general population in the geographic area," which is the relevant standard under 42 U.S.C. § 1396a(a)(30).