M.A.C. v. Betit, 2:02CV1395.

• Court: United States District Courts. 10th Circuit. United States District Court of Utah
• Writing for the Court: Kimball
• Citation: 284 F.Supp.2d 1298
• Parties: M.A.C. and D.C.C. by D.C. and A.C.; K.A.S. by K.S. and S.K.S.; M.C. by J.C. and R.C.; D.N. by M.A.N.; B.G. by C.G.; C.M.E. by C.E. and B.E.; D.P by B.P. and J.P.; C.C. by T.C. and K.C.; and the Arc of Utah, on behalf of themselves and all other similarly situated individuals, Plaintiffs, v. Rod L. BETIT, Executive Director of the Utah State Department of Health; Utah State Department of Health; Michael Deily, Director, Division of Heath Care Financing, Utah State Department of Heath; Utah Division of Health Care Financing; Fran Morse, Director, Division of Services for People with Disabilities, Utah State Department of Human Services; Utah Division of Services for People with Disabilities, Defendants.
• Docket Number: No. 2:02CV1395.,2:02CV1395.
• Decision Date: 26 August 2003

284 F.Supp.2d 1298 M.A.C. and D.C.C. by D.C. and A.C.; K.A.S. by K.S. and S.K.S.; M.C. by J.C. and R.C.; D.N. by M.A.N.; B.G. by C.G.; C.M.E. by C.E. and B.E.; D.P by B.P. and J.P.; C.C. by T.C. and K.C.; and the Arc of Utah, on behalf of themselves and all other similarly situated individuals, Plaintiffs,
v.
Rod L. BETIT, Executive Director of the Utah State Department of Health; Utah State Department of Health; Michael Deily, Director, Division of Heath Care Financing, Utah State Department of Heath; Utah Division of Health Care Financing; Fran Morse, Director, Division of Services for People with Disabilities, Utah State Department of Human Services; Utah Division of Services for People with Disabilities, Defendants. No. 2:02CV1395. United States District Court, D. Utah, Central Division. August 26, 2003.

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Robert B. Denton, Disability Law Center, John Pace, Salt Lake City, UT, for Plaintiffs.

Craig L. Barlow, Joel Ferre, Douglas W Springmeyer, Utah Attorney General's Office, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER

KIMBALL, District Judge.

This matter is before the court on Defendants' Motion to Dismiss, Plaintiffs' Motion for Class Certification, and Plaintiffs' Cross Motion for Partial Summary Judgment. A hearing on these motions was held June 19, 2003. Defendants Rod Betit et al. ("Defendants") were represented by Joel A. Ferre, and Plaintiffs M.A.C. et al. ("Plaintiffs" or "proposed plaintiff class") were represented by Robert B. Denton. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to these motions. Now being fully advised, the court renders the following Memorandum Decision and Order.

I. BACKGROUND

Plaintiffs, a proposed class of people with disabilities, allege that Defendants have violated the Medicaid Act, the Americans with Disabilities Act ("ADA"), and section 504 of the Rehabilitation Act of 1973 (" § 504" or "Rehabilitation Act") by placing Plaintiffs on a waiting list for Medicaid Home and Community Based Services ("HCBS waiver"). Defendants are state agencies and individuals who administer the Medicaid program in Utah. The proposed plaintiff class is composed of all current and future Medicaid-eligible individuals residing in Utah who, because of

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their developmental disabilities or mental retardation have or will be determined to be eligible for, and are or will be on the waiting list to receive, services under the HCBS waiver by the Division of Services for People with Disabilities. There are approximately 1316 individuals currently on the waiting list who have an immediate need for services.

The Medicaid program, established by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a cooperative federal-state program created to provide medical assistance to needy families and individuals. States are not required to participate in the Medicaid program, but once a state elects to participate, it must do so in accordance with federal statutes and regulations. 42 U.S.C. § 1396a(a)(10). Each state participating in the Medicaid program must provide certain mandatory services. Id. However, some Medicaid services are optional at the discretion of each state. Id. States participating the Medicaid program are required to develop a comprehensive plan for the provision of services that must be approved by the Centers for Medicare and Medicaid Services ("CMS"). 42 U.S.C. § 1396a(b). The State of Utah has chosen to participate in the Medicaid program and has opted to provide intermediate care facility services for mentally retarded or developmentally disabled individuals ("ICF/MR").

In addition to the mandatory and optional services, a state may request approval from the Secretary for Health and Human Services ("Secretary") to provide Medicaid services designed as an alternative to long term institutional care. The HCBS waiver program allows states to waive certain standard Medicaid mandates applicable to state plan services in developing a plan for noninstitutional alternative services. 42 U.S.C. § 1396n(c)(1). Utah has received approval to provide HCBS waiver services to individuals with developmental disabilities or mental retardation. The comparability of services mandate of 42 U.S.C. § 1396a(a)(10)(A) and (B) has been waived to restrict these services to otherwise eligible individuals with developmental disabilities or mental retardation and to cap the number of recipients based on a number set by CMS or the Utah Legislature. The cost of providing HCBS waiver services may not exceed the cost of care for the identical population in an institutional setting. 42 U.S.C. § 1396n(c)(2)(D).

While the Medicaid Act does not place a limit on the number of individuals to whom Utah can provide ICF/MR services, CMS may authorize an upper limit on the number of "unduplicated individuals" Utah may serve under an HCBS waiver program. 42 C.F.R. § 441.303(f)(6); see also 42 U.S.C. §§ 1396n(c)(2)(C), (c)(9), (c)(10). Utah has requested and received approval to limit HCBS waiver services to 3822 individuals. Utah may request from CMS a modification of the HCBS waiver, including the cap on the waiver. CMS must respond within 90 days to a state's request to modify an HCBS waiver.

Plaintiffs allege that Utah has chosen to use the cap in the HCBS waiver to limit those who can receive services under the waiver. Plaintiffs further assert that Utah has never requested a modification of the cap in order to serve all individuals for whom HCBS waiver services are medically necessary. Those individuals above the cap who request HCBS waiver services are placed on a waiting list and categorized into two groups: those with an immediate need for HCBS waiver services and those with a future need for such services. Plaintiffs and the proposed plaintiff class will be or have been determined by Defendants to have an immediate need for HCBS waiver services. Plaintiffs allege that some individuals within the plaintiff

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class have been on the waiting list for over 10 years.

Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), Defendants move this court to dismiss Plaintiffs' complaint on the grounds that Plaintiffs lack standing to assert a claim under the Medicaid Act and Plaintiffs' ADA and § 504 claims fail to state a claim for which relief may be granted. Defendants further move this court to dismiss Plaintiffs' complaint because Plaintiffs' claims are barred by the Eleventh Amendment. Plaintiffs filed a Motion for Class Certification under the Federal Rules of Civil Procedure 23(b)(2), seeking injunctive and declaratory relief, and a Cross Motion for Partial Summary Judgment pursuant to FRCP 56(c), moving this court to find that none of Plaintiffs' claims are barred or limited by the Eleventh Amendment.

II. DISCUSSION

A. Plaintiffs' Motion for Class Certification

For certification of a plaintiff class, the action must meet the four requirements of FRCP 23(a). Specifically, a plaintiff must demonstrate that "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). Courts apply this rule liberally. See General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

First, joinder of every current and future individual on the HCBS waiver waiting list is impracticable in that there are 1,316 people currently on the waiting list who are geographically dispersed throughout Utah. Because each of the proposed class members qualify for Medicaid-reimbursable institutional services, they by definition lack the financial resources on their own. Thus, the first requirement of impracticability is established.

Second, the material facts shared by each class member are nearly identical in that Plaintiffs allege that each proposed class member is being denied medically necessary waiver services sufficient in amount, duration, and scope, in violation of the Medicaid Act; each is being denied waiver services with reasonable promptness in violation of the Medicaid Act; each is being denied a meaningful choice between the receipt of HCBS waiver services and institutionalization in violation of the Medicaid Act; and each is threatened with unnecessary institutionalization in violation of the ADA and § 504. Thus, the second requirement of commonality is established.

Third, because the material factual circumstances and the legal claims and relief sought are identical as between the named plaintiffs and the class they seek to represent, the third requirement of typicality is met.

Fourth, Plaintiffs have met the requirement of adequacy. Plaintiffs seeking class certification must demonstrate that (a) counsel for named plaintiffs are competent to conduct the litigation as a class action, and (b) the interests of the party and the proposed class do not conflict. See Smith v. Josten's Am. Yearbook Co., 78 F.R.D. 154, 162 (D.Kan.1978). Plaintiffs' counsel are qualified to conduct class action litigation in that they have previous experience in class actions and civil rights litigation. Additionally, Plaintiffs allege that no antagonistic interests exist between the named plaintiffs and members of the proposed class because the interests are identical in terms of material facts, legal theories, and relief sought. Thus, the fourth requirement of adequacy is met.

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A class action is appropriate under FRCP 23(b)(2) where "the party opposing the class has acted or refused to act on grounds...