Clark v. Richman, 4:00-CV-1306.

• Decision Date: 07 October 2004
• Docket Number: No. 4:00-CV-1306.,4:00-CV-1306.
• Parties: Patricia CLARK, et al., Plaintiffs, v. Estelle B. RICHMAN,<SMALL><SUP>1</SUP></SMALL> in her official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

339 F.Supp.2d 631

Patricia CLARK, et al., Plaintiffs, v. Estelle B. RICHMAN,¹ in her official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania, Defendant.

No. 4:00-CV-1306.

United States District Court, M.D. Pennsylvania.

October 7, 2004.

COPYRIGHT MATERIAL OMITTED

Carol A. Horowitz, Ilene W. Shane, Disabilities Law Project, Pittsburgh, PA, Edmond A. Tiryak, Wayne, PA, Mark J. Murphy,

Disabilities Law Project, Philadelphia, PA, for Plaintiffs.

Michael L. Harvey, Harrisburg, PA, Rodney M. Torbic, Pittsburgh, PA, for Defendant.

MEMORANDUM

MCCLURE, District Judge.

BACKGROUND:

This action is brought on behalf of a class of disabled individuals who receive Medical Assistance (MA) benefits. Plaintiffs, by and through their next friends, allege that they have been denied access to dental services due to the policies of defendant, the Secretary of the Pennsylvania Department of Public Welfare (DPW), and seek enforcement of certain provisions of Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v (Title XIX, or the Medicaid Act).

Specifically, plaintiffs allege that DPW violated 42 U.S.C. § 1396a(a)(10)(A) by not providing them with medically necessary dental services (Count I). They allege that DPW violated 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a) by failing to provide dental services to plaintiffs and class members with reasonable promptness (Count II). Plaintiffs had alleged a claim based on comparability of services (Count III), but have indicated that they will not pursue that claim, (see Pls.' Mot. Summ. J., Rec. Doc. No. 70; Pls.' Br. Supp. Mot. Summ. J., Rec. Doc. No. 71, at 2 n. 2), so Count III will be dismissed.

Plaintiffs also allege that DPW violated 42 U.S.C. § 1396a(a)(30)(A) by failing to take necessary steps, such as adequate reimbursement rates, to ensure equal access to dental services for MA recipients (Count IV). Finally, plaintiffs allege that DPW violated 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(xiii)(4)(B), and 1396d(r) by not ensuring that children under the age of 21 timely receive early and periodic screening, diagnostic and treatment (EPSDT) services in the form of dental care.

Following extensive discovery, plaintiffs filed a motion for partial summary judgment on issues of liability. Shortly thereafter, DPW cross-filed a motion for summary judgment. Plaintiffs then filed a motion to strike portions of defense expert Catherine Sreckovich's report.

DPW preliminarily argues that Title XIX does not confer on plaintiffs any privately enforceable rights. DPW previously raised this same argument before a district court sitting in the Eastern District of Pennsylvania. That court agreed with DPW and dismissed an action similar to the one before this court. See Sabree ex rel. Sabree v. Houston, 245 F.Supp.2d 653 (E.D.Pa.2003) (Sabree I). Given that Sabree I was on appeal while the parties were briefing their motions in this case, plaintiffs suggested, and DPW concurred, that this case should be held in abeyance so that this court could proceed with guidance from the United States Court of Appeals for the Third Circuit.

On May 11, 2004, the Third Circuit reversed the Sabree I court's dismissal and held that Title XIX provides certain individuals with privately enforceable rights. See Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 193-94 (3d Cir.2004) (Sabree II). Now, guided by Sabree II, and for the following reasons, this court will deny plaintiffs' motion for partial summary judgment and grant in part and deny in part DPW's motion for summary judgment. The court will also deny plaintiffs' motion to strike portions of defense expert Catherine Sreckovich's report.

DISCUSSION:

I. The Summary Judgment Motions

Both parties move for summary judgment. We analyze the parties' motions contemporaneously.

A. The Summary Judgment Standard

Summary judgment is appropriate if there are no genuine issues of material fact in dispute and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beers-Capitol v. Whetzel, 256 F.3d 120, 130 n. 6 (3d Cir.2001).

An issue is "genuine" if a reasonable jury could find for either party. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "Material" facts are those that might affect the outcome of the case. Id. at 248, 106 S.Ct. 2505.

Initially, the moving party bears the burden of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. "It can discharge that burden by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.

Once the moving party points to evidence demonstrating that no genuine issue of material fact exists, the nonmoving party has the duty to set forth specific facts showing that a genuine issue of material fact does exist and that a reasonable fact-finder could rule in its favor. Ridgewood Bd. of Educ. v. N.E, ex rel. M.E., 172 F.3d 238, 252 (3d Cir.1999) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Although "[s]peculation and conclusory allegations do not satisfy this duty," Ridgewood, 172 F.3d at 252 (citing Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir.1995)), all inferences are made in a light most favorable to the nonmoving party. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.2004).

B. Statement of Relevant Facts

We briefly recount the relevant, material facts of the case as drawn from the parties' statements of undisputed facts, required by Local Rule 56.1.

Original named plaintiffs included Patricia Clark, Sarah Carrasquillo, and K.S. Plaintiff Patricia Clark (suing by and through her next friend, Connie Clark), is an adult with Down Syndrome and mental retardation. Plaintiff Sarah Carrasquillo (suing by and through her next friend, Nilda Figueroa), is an adult with autism, mental retardation, and a cleft palate. Plaintiff K.S. (suing by and through her next friend, Priscilla Conrad), is a child with Down Syndrome and mental retardation. All three are eligible for Medical Assistance (MA) benefits because they have SSI-level disabilities. All three plaintiffs receive MA benefits through either the Commonwealth of Pennsylvania's fee-for-service or managed care provider systems.

Defendant, Estelle B. Richman, is the Secretary of the Pennsylvania Department of Public Welfare (DPW), a single state agency designated by the Commonwealth to take responsibility for the State Medical Assistance Plan (SMAP), otherwise known in Pennsylvania as the Medical Assistance program (MA program).

On November 1, 2002, this court certified the case as a class action, consisting of two sub-classes:

Class A: All recipients of Medical Assistance benefits under the age of 21 who are eligible because they have disabilities that meet the disability criteria under the Supplemental Security Income (SSI) program.

Class B: All categorically needy adult recipients of Medical Assistance benefits who are eligible because they have disabilities that meet the disability criteria under the Supplemental Security Income (SSI) program.

(See Mem. & Order dated Nov. 1, 2002, Rec. Doc. No. 55.)

Pennsylvania's MA program was initially established as a fee-for-service program that permitted MA recipients to seek services directly from any provider enrolled in the MA program. In 1997, Pennsylvania was granted a waiver by the federal Centers for Medicare and Medicaid Services to allow certain MA recipients in 25 out of 67 counties in the Commonwealth to receive services through managed care organizations instead of through the fee-for-service system.

Pennsylvania is one of eight states to include in its SMAP certain optional dental benefits for eligible adults of the age of 21 or over. Certain individuals under the age of 21 are eligible for all medically necessary dental services. They are also eligible for early and periodic screening, diagnosis, and treatment (EPSDT) services, administered by Automated Health Systems (AHS) on behalf of DPW.

For fiscal years 1999-2002, the Commonwealth filed Program Revision Requests (PRRs), through which the Commonwealth requested increased funding for particular programs, including allotments to increase dental reimbursement rates. The PRRs included certain information regarding dental care and services for MA recipients in Pennsylvania. The PRRs were eventually approved and implemented.

Based on numbers from a Dental Summit in 2001, roughly 8,031 dentists are licensed to practice in Pennsylvania. About 72% of the total licensed dentists, or 5,764, are enrolled in the MA program. A lesser number of enrolled dentists actually participate in the MA program, i.e., actually accept MA patients. Participating dentists, of course, are free to limit the number of MA patients they treat.

At this point, the parties' general factual agreement ends. Plaintiffs contend at length that the Commonwealth is experiencing a dramatic shortage of dentists statewide who are able or willing to treat MA recipients. Plaintiffs argue that the ratio of dentists to MA recipients is grossly disproportionate to the ratio of dentists willing and able to treat other, non-MA, patients. Plaintiffs further claim that a multitude of factors and data, such as low reimbursement rates, outdated lists of enrolled dentists, failed attempts to integrate managed care as an alternative to fee-for-service programs, and other inadequate measures to assure that class members receive dental care, all contribute...