J., et al v. Riley, et al

Filing 222

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART the 128 amended motion for class certification; GRANTING the motion with respect to Subclass Two and Subclass Three; DENYING the motion with respect to Subclass One and to the extent members of any subclass sought to bring claims under Counts II and IV; further ORDERING that absent class members need not be given notice and an opportunity to opt out of this action. Signed by Hon. Chief Judge Mark E. Fuller on 10/24/08. (Attachments: # 1 civil appeals checklist)(djy, )

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IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S U S A N J., et al., P l a i n t if f s , v. BOB RILEY, in his official capacity as G o v e rn o r of the State of Alabama, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) C A S E NO. 2:00-cv-918-MEF (W O P u b lis h ) M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION E lev e n named plaintiffs seek to represent a class of disabled persons. The Defendants a r e Bob Riley, as Governor of the State of Alabama, John Houston, as Commissioner of M e n ta l Health and Mental Retardation, and The Alabama Department of Mental Health and M e n ta l Retardation. Plaintiffs challenge the way Defendants operate a Medicaid program k n o w n as the Home and Community Based Waiver Program ("HCB Waiver"). Specifically, th e y allege Defendants have: (1) violated the Medicaid Act by failing to provide services to e lig ib le individuals with "reasonable promptness;" (2) violated the Medicaid Act by failing to provide "comparable" services to participants in the Waiver program; (3) violated the M e d ic a id Act by failing to provide an application process that meets the requirements of the A c t; and (4) violated Plaintiffs Fourteenth Amendment substantive due process rights. T h e re are currently six motions under submission: Plaintiffs' Amended Motion for C la ss Certification (Doc. # 128), four Motions for Summary Judgment (Doc. ## 127, 152, 1 7 2 , 211), and Plaintiffs' Motion for Reconsideration (Doc. # 218). The issues raised in the M o t io n s for Summary Judgment partially overlap the issues raised in the Motion for Class C e rtif ic a tio n . The Motion for Reconsideration raises distinct issues. Because the Parties and th e Court expect an interlocutory appeal of the class certification decision pursuant to Rule 2 3 (f ),1 the Court in this Opinion and Order decides only the Motion for Class Certification.2 F o r the reasons set forth in this Memorandum Opinion and Order, the Motion is due to be G R A N T E D in part and DENIED in part. It is due to be granted with respect to Subclasses T w o and Three and due to be denied with respect to Subclass One. II. JURISDICTION AND VENUE T h is Court has jurisdiction pursuant to 28 U.S.C. 1331 and 1343 because Plaintiffs b rin g their claims pursuant to 42 U.S.C. 1396 et seq., 1983, and the Due Process Clause o f the Fourteenth Amendment. The parties do not contest venue and personal jurisdiction, a n d the Court finds a sufficient basis for each. III. FACTS AND PROCEDURAL BACKGROUND A . Overview of the Parties and Claims This Motion for Class Certification raises issues that the Eleventh Circuit has not yet decided. Interlocutory appeals from class certification decisions do not automatically stay proceedings in the District Court. Fed. R. Civ. P. 26(f). The Court intends to rule on the other motions currently under submission and, if the Eleventh Circuit exercises its discretion to entertain the interlocutory appeal, stay the proceedings. If the parties decline to appeal or if the Circuit declines to hear the appeal, trial will go forward as scheduled. 2 2 1 N am ed Plaintiffs seek to represent a group of adults with mental retardation who are u n a b le to care fully for themselves and require varying degrees of care and treatment. The D e f en d a n ts are Bob Riley, in his official capacity as Governor of the State of Alabama, the A labama Department of Mental Health and Mental Retardation (the "Department"), and John M . Houston ("Houston"), in his official capacity as Commissioner of the Department. Plaintiffs claim that the "State of Alabama, in violation of its obligations under federal a n d state law, has continually failed to provide necessary Medicaid services in a timely or `re a so n a b ly prompt' manner as required by federal law." (Doc. # 128 2.) Plaintiffs seek d e c la ra to ry and injunctive relief. B. Proposed Class Definition Plaintiffs seek certification of the following three subclasses:3 S u b c la s s One: All persons with mental retardation who have applied for se rv ice s compensable under Alabama's Home and Community B a se d Waiver Programs and who have been determined to be e li g ib le for services but who have not received them with re a so n a b le promptness or have received inadequate or in a p p r o p r ia te services. All persons with mental retardation who have applied for se rv ice s compensable under Alabama's Home and Community B a se d Waiver Programs but who have been adjudged ineligible a n d /o r denied services without notice and opportunity for h e a rin g . All persons with mental retardation who have applied for se rv ice s compensable under Alabama's Home and Community S u b c la s s Two: S u b c la s s Three: These three subclasses track very closely the three subclasses offered in dicta by the Eleventh Circuit in Prado v. Bush, 221 F.3d 1266, 1282 (11th Cir. 2000). 3 3 B a se d Waiver Programs and have not received a reasonably p ro m p t claims determination. (D o c. # 128 1-2.) C. Overview of the Medicaid Waiver Program M e d ica id is a joint federal and state program under Title XIX of the Social Security A c t. 42 U.S.C. 1396 et seq. The federal government reimburses a portion of the e x p e n d itu re s incurred by states that elect to furnish medical assistance to individuals with m e n ta l retardation. States that elect to participate in the program must submit a plan to the U .S . Department of Health and Human Services that details the programs and funding re q u ire m e n ts for which Medicaid funds will be used. Alabama has elected to participate in th e program and has submitted a state plan. State plans must provide certain specified health care services, such as inpatient h o s p ita l services, certain outpatient services, and physicians' services. In addition to the m a n d a to ry services, a state may also elect to provide optional services such as residential p la c e m e n ts . The HCB Waiver programs are optional services. States that elect to provide optional services must provide them to all eligible persons in the state. Id. 1396a(a)(8). The services must also be "furnished with reasonable p ro m p tn e ss ." Id. Eligible recipients generally must receive services that are comparable in a m o u n t, duration, and scope to those services received by other eligible recipients. Id. 1 3 9 6 a (a )(1 0 ). The Medicaid Act does, however, allow states to waive the comparability re q u ire m e n ts . Id. 1396n(c)(3). Alabama has waived the comparability requirements. 4 D . Organization of Alabama's Medicaid Waiver Programs4 T h e Department develops and manages services through three clinical divisions: M e n ta l Health, Mental Retardation Services, and Substance Abuse. (Doc. # 105-2 2.) The D iv is io n of Mental Retardation Services (the "Division") oversees the payment and d ay-to -da y management of the Medicaid programs that are at issue in this case. (Id. 2.) T h e Division has a central office and five regional offices. (Id. 6.) The central office w o rk s with the Alabama Medicaid Agency to "write, amend, and renew the Waiver P r o g ra m s , resolve problems, and administer the quality assurance processes required by the M e d i c a id Agency. In addition, the central office develops systems, policies and procedures, o v e rs e e s contracts, develops and presents the budget, and sets directions and goals for the c o m m u n ity based system in concert with input from a standing group of stakeholders . . . ." (Id . 6.) T h e Division's central and regional offices generally do not directly provide services, b u t rather contract for services with private vendors. (Id. 4.) There are "limited e x c e p tio n s ," such as crisis situations, where the regional offices provide services directly. (Id . 7.) The vendors provide several services including "case management; residential and d a y habilitation; supported and pre-vocational employment; respite in and out of home; The factual summaries in the parties' briefs referred to the detailed affidavits of F o r d yc e Mitchel, the Director of Mental Retardation Community Programs in the D e p a rtm e n t's Division of Mental Retardation Services (Doc. # 105-2), and Eranell M c In to sh -W ilso n , the Special Advisor to Houston (Doc. # 129-2). The Court will cite to th e s e affidavits throughout this Section. 5 4 p e r s o n a l and companion care in any setting; physical, occupational, speech and behavior th e ra p y; nursing care; environment adaptation; specialized equipment; person-centered plan f a cilita tio n and crisis intervention." (Id. 4.) P e rso n s with mental retardation can apply for waiver services by contacting their c o u n t y' s "310 Board," which is public nongovernmental agency that serves as an access p o in t to the state's waiver programs. (Id. 8-9.) The 310 Boards take their name from the le g is la tio n that created them, namely Acts 1967, No. 310, which is codified as amended at A la b a m a Code 22-51-1 et seq. There are two types of 310 Boards: (1) Comprehensive 310 B o a rd s, which "tend to provide all services directly"; and (2) Mental Retardation Specialty 3 1 0 Boards, which "provide only case management services or, if they provide other s e rv ic e s, they do so through subcontracting with other provider entities." (Id.) E. Alabama's Home and Community Based Waiver Programs Plaintiffs seek to compel Defendants to provide services to them under Alabama's H C B Waiver programs. Alabama has two HCB Waiver programs, the Mental Retardation (" M R " ) Waiver and the Living at Home ("LAH") Waiver. The term "waiver" comes from Section 1915(c) of the Social Security Act, enacted in 1981, which gave the Secretary of the Department of Health and Human Services the p o w e r to waive certain requirements of the Medicaid Act. Section 42 U.S.C. 1396n(c)(1) p ro v id e s in pertinent part: T h e Secretary may by waiver provide that a State plan approved under this s u b c h a p te r may include as "medical assistance" under such plan payment for 6 p a rt or all of the cost of home or community-based services (other than room a n d board) approved by the Secretary which are provided pursuant to a written p la n of care to individuals with respect to whom there has been a d e ter m in a tio n that but for the provision of such services the individuals would r e q u ire the level of care provided in a hospital or a nursing facility or in te rm e d ia te care facility for the mentally retarded the cost of which could be re im b u rs e d under the State plan. 42 U.S.C. 1396n(c)(1); see also 42 C.F.R. 441.300 ("Section 1915(c) of the Act permits S ta te s to offer, under a waiver of statutory requirements, an array of home and c o m m u n ity-b a s e d services that an individual needs to avoid institutionalization."). An im p o rta n t requirement relevant to the claims in this case is that "all individuals wishing to m a k e application for medical assistance under the plan shall have opportunity to do so, and th a t such assistance shall be furnished with reasonable promptness to all eligible ind ividu als." 42 U.S.C. 1396a(a)(8). 1 . MR Waiver Program Alabama began its MR Waiver program in 1981. (Doc. # 105-2 27, 31.) The p ro g ra m offers twenty-three services. Day habilitation and residential habilitation are the p rim a ry ones. (Id. 31.) Day habilitation programs offer assistance and training "in daily liv ing activities and instruction in the skills necessary for independent pursuit of leisure tim e /re c re a tio n activities." Medicaid HCBS MR Waiver Service Catalog (Doc. # 189-4, Ex. 3 , at 110.) "A unit of service is a day consisting of at least 5 hours, one hour of which may in c lu d e transporting the individual." (Id.) Residential habilitation programs "provide care, s u p e rv is io n , and skills training in activities of daily living, home management and 7 c o m m u n ity integration." (Id. at 107.) These services may be provided in the waiver re c ip ien t's home or a community setting. In either case, the recipient's home or community s e ttin g must satisfy certain requirements and obtain certification from the Department. (Id.) F o r instance, a newly certified home may have no more than six residents. (Id.) 2. LAH Waiver Program Alabama began its LAH Waiver program in 2002. (Doc. # 105-2 33.) "It is a `s u p p o rts waiver' which takes advantage of a [federal] rule that allows the state to set a cap o n the total amount that can be expended for any one individual, and allows the state to set th a t cap lower than the average cost of the offsetting type of institution. The concept is that a supports waiver can provide sufficient services to help a family support their member with a disability for many years, before that person will need residential services. So the person re c eiv in g services through this waiver can remain on the waiting list for services from the M R Waiver, while benefitting from supports in the home and in the community." (Id.) The services in the LAH Waiver match those in the MR Waiver except for residential h a b ilita tio n out of the person's home. (Id. 33.) "The current cap in the LAH Waiver is $ 2 2 ,5 0 0 , and is made effective by not enrolling anyone in this waiver whose costs can re a so n a b ly be expected to exceed that cap within a year. If someone were to reach the point o f exceeding the cap, [he or she] could receive crisis intervention services at costs beyond the cap (this is a provision of this waiver), until the [Department] could transfer [him or her] to the MR Waiver." (Id.) 8 3 . Number of Slots in the Waiver Programs A state's HCB Waiver requires the approval of the Centers for Medicaid and M e d ic a re Services ("CMS") Administration. (Doc. # 105-2, 28.) A state plan must specify the maximum number of people who will receive waiver services in the applicable year. W h e n approved by CMS, this number is a "cap" on how many persons can participate in the s ta te 's waiver program. (Id.) If a person leaves the waiver program (for example, because h e or she passed away or moved out of the state), then his or her slot is not used again until th e following year. (Id.) In Alabama, the applicable year for the MR Waiver and LAH W a iv e r runs from October 1 through the following September 30. (Id.) A la b a m a 's MR Waiver program currently has 5,260 slots. The Department requested a n d obtained approval for increases in late 2000 (4,200 to 5,200) and April 2007 (5,200 to 5 ,2 6 0 ). (Id. 30.) Alabama's LAH Waiver program currently has 569 slots. The D e p a rtm e n t requested and received approval for increases in 2003 (204 to 326), 2004 (326 to 449), and 2005 (449 to 569). (Doc. # 129-2 3.) F. The Waiting List The Division maintains a waiting list for both the MR and LAH waivers. (Doc. # 1052 34.) The Division ranks people according to their needs and criticality by taking into a c c o u n t each person's individual needs and abilities. (Id. 16-21.) Prior to 2003, Alabama did not have a "coherent centralized electronic waiting list." (Id . 16.) The previous system contained data on persons needing services, "but the data 9 w a s not edited [or] standardized and there was insufficient information to create a ranking o r prioritization of need." (Id.) The new system works as follows: Persons who need services must contact their c o u n ty's 310 Board. (Doc. # 129-2 20.) The 310 Board case managers and intake c o o r d in a to rs complete documentation, including a "Criticality Summary," in order to d o c u m e n t the person's eligibility for the waiver program. The 310 Board sends the d o c u m e n ta tio n to one of the state's five regional offices. If the regional office approves the a p p lic a tio n , it adds the person to the waiting list. (Id.) The waiting list includes all persons in the state who are deemed to meet the requirements for participation in the Waiver p ro g ra m s . The waiting list "is a planning tool that the Department has developed to assist it in its mission to plan for and to serve individuals with mental retardation throughout the State. T h e waiting list helps the Department understand the needs of individuals now and in the f u tu re , based upon the categories of the services that they have requested and are expected to be eligible for, all prioritized by the criticality of their need." (Doc. # 129-2 7.) T h e criticality score is a number ranging from 1 (no present need for services) to 12 (im m e d ia te need). The Division assigns a score to each service requested by each individual o n the waiting list. (Id. 10.) A person's criticality scores will not change unless his or her c irc u m sta n c e s change. Fordyce Mitchel, the Director of Mental Retardation Community P r o g ra m s in the Department's Division of Mental Retardation Services, provided the 10 f o llo w in g example of how a criticality score could change: [A]n individual under the age of 21 who is eligible to attend public school may b e on the waiting list for day habilitation for long range planning purposes, w ith a low criticality score because he is attending public school. When that in d iv id u a l ages out of the public school system, however, his need has changed d ra stic a lly and his criticality score will very likely jump, placing him ahead of o th e rs on the list. (Id. 11.) T h e process of enrolling a person in a waiver program begins when the regional office o f f ers a slot in a waiver program to a person on the waiting list. For example, a regional o f f ic e might offer the MR Waiver to persons with a high criticality scores who are waiting f o r residential services because only the MR Waiver reimburses residential habilitation out o f the person's home. On the other hand, the regional office might offer the LAH Waiver to persons who do not need residential habilitation or need it with low criticality. (Id.) After the person accepts the offered waiver slot, the regional office contacts the 310 B o a rd to develop a plan of care, lets the person choose the provider(s) of services, prepares th e documentation that is required to enroll the person, and contacts the service provider to initiate the plan of care. (Doc. # 105-2 11.) The size of the waiting list has increased in recent years. In August 2005, there were a p p ro x im a tely 1,311 persons on the waiting list, according to Patricia J. Martin, Associate C o m m is s i o n e r for MR Services, Alabama Department of Mental Health and Mental R e ta rd a tio n . Coordinating Subcommittee for Mental Retardation Services, Meeting S u m m a r y, August 7, 2007 (Doc. # 128-3, PX 1, 3.) On April 12, 2007, there were 1,522 11 p e rso n s were on the waiting list, according to Defendants. Response of Defendants to P la in t if f s ' First Set of Interrogatories (Doc. # 128-4, PX 2, Response No. 1.) In August 2 0 0 7 , there were 1,681 persons on the waiting list, according to Martin. (Doc. # 128-3, PX 1 , at 3.) Since July 1, 2000, over 2,700 persons have submitted applications. (Doc. # 128-4, P X 2, Response No. 1.) J. Subclass Representatives Plaintiffs argue that Tara L.'s claims are typical of Subclass One, Beverly W.'s claims a re typical of Subclass Two, and Krystal W.'s claims are typical of Subclass Three. 1. Subclass One: Persons Who Have Not Received Waiver Services With R e a s o n a b le Promptness Plaintiffs offer Tara L. as a representative of Subclass One. She is a twenty-eight year o ld resident of Jefferson County and has been diagnosed with mental retardation, autism, p s yc h o sis , and aggressive behavior. Affidavit of Belinda L. (Doc. # 121-4 3) (filed under s e a l pursuant to an Order of this Court (Doc. # 118)). On December 4, 1997, Belinda L., T a ra 's mother, applied for residential, day, and support services through the local 310 Board, th e Mental Retardation & Developmental Disabilities Health Care Authority of Jefferson C o u n ty, Inc. ("Jefferson County 310 Board"). (Id. 5); (Doc. # 129-2 30). Tara has never b e e n offered services other than case management. (Id. 10.) Belinda was informed that T a ra has not been offered a residential placement because of her behavior problems. (Id. 1 0 .) A s of July 2005, Tara was on the statewide waiting list for residential and day 12 h a b ilita tio n services. Letter from Frederick Pinto to Belinda L. (Doc. # 173-45, Ex. N, at 1 1 8 .) As of September 24, 2007, Tara was ranked 514. (Id. 11); (Doc. # 129-2, 30). B e lin d a believes that Tara needs and would benefit from these services. (Doc. # 121-4, 1 4 .) With respect to residential habilitation services, Tara has a criticality score of 1. With resp ec t to day habilitation services, she has a criticality score of 4. (Doc. # 129-2, 30.) 2. Subclass Two: Persons Deemed Ineligible or Denied Services Without Notice and O p p o rtu n ity for a Hearing P la in tif f s offer Beverly W. as a representative of Subclass Two. She is a forty-nine ye a r old resident of Jefferson County and has been diagnosed with mental retardation, brain d a m a g e , and possible fetal alcohol syndrome. Affidavit of Clarice W. (Doc. # 121-2 5) (f iled under seal pursuant to an Order of this Court (Doc. # 118)). In 1992, and again in 1 9 9 6 , Clarice W., Beverly's mother, applied for residential and day habilitation services from th e Jefferson County 310 Board. (Id. 6-7.) Between 1996 and 2004, Clarice received no c o m m u n ica tio n regarding the status of Beverly's application or her place on the waiting list. (Id . 8.) In 2005, Gary Hendrix of the Jefferson County 310 Board informed Clarice that B e v e rly was not eligible to receive services because she was found to be functioning above th e range of mental retardation. (Id. 10); (Doc. # 129-2 29); (Doc. # 129-2, Ex. 1, at 15). C la ric e asked Hendrix to reconsider the decision. (Doc. # 121-2 11); (Doc. # 129-2, Ex. 2 , at 16). Hendrix told Clarice that she could provide additional documentation to assist in th e reconsideration of the decision, and Clarice provided this documentation. 13 (Id.) A c c o rd in g to Beverly's supplemental response to Defendants' interrogatories, Beverly did n o t receive notice on how to object to being denied eligibility. Supp. Response of Plaintiffs to Defendants' Interrogatories (Doc. # 173-23, DX D-9.) On November 19, 2007, the Department informed the Jefferson County 310 Board th a t Beverly was ineligible because of her above-range IQ scores. The 310 Board was re sp o n sib le for informing Beverly of the decision and the procedure for appealing it. Beverly a n d her family have not appealed the decision. Aff. (Third) of Eranell McIntosh-Wilson (D o c. # 173-3 21-22.) 3. Subclass Three: Persons Who Applied for Waiver Services and Did Not Receive a R e a so n a b ly Prompt Claims Determination P la in tif f s offer Krystal W. as a representative of Subclass Three. She is a twenty-five ye a r old resident of Jefferson County and has been diagnosed with profound mental re ta rd a tio n . Affidavit of Kathy W. (Doc. # 121-3 3) (filed under seal pursuant to an Order o f this Court (Doc. # 118)). In 2000, Kathy W., Krystal's mother, applied for residential and d a y habilitation services. (Id. 5.) Between 2000 and 2003, Kathy made numerous phone c a lls to the agencies to determine Krystal's status on the waiting list, but she did not receive a n y updates. (Id. 6.) In 2003, Kathy withdrew the request for residential and day h a b ilita tio n services because Krystal was receiving services through another waiver program th a t is not at issue in this case. Aff. (Third) of Eranell McIntosh-Wilson (Doc. # 173-3 25.) I n October 2005, Kathy reapplied for residential and day habilitation services because s h e believed that they were needed. (Id. 26); ((Doc. # 121-3 12-13). On November 9, 14 2 0 0 7 , the regional office received Krystal's application for day habilitation services. (Doc. # 173-3, 27.) IV. DISCUSSION T o obtain class certification, Named Plaintiffs must (1) have standing, (2) satisfy each re q u ire m e n t of Rule 23(a) of the Federal Rules of Civil Procedure, and (3) satisfy at least one o f the requirements of Rule 23(b). Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1321 (11th C ir. 2008). The Plaintiffs have the burden of establishing the propriety of class certification. Id . A . Standing D ef en d an ts argue Plaintiffs lack standing. The Court must consider this issue before ad d ressing the Rule 23 requirements. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1 9 8 7 ). Defendants argue Plaintiffs lack standing because they are not entitled to the relief th e y seek and the statutes in issue do not create privately enforceable rights. The Court finds th a t representatives of Subclasses One and Three have standing to assert claims under 42 U .S .C . 1396a(a)(8) (reasonable promptness), the representative of Subclass Two has s ta n d in g to assert claims under 42 U.S.C. 1396a(a)(3) and the procedural protections of the F o u r te e n th Amendment, and no named plaintiffs have standing to assert claims under either 4 2 U.S.C. 1396a(a)(10) (comparability) or the substantive protections of the Fourteenth A m e n d m e n t. 1. Legal Framework 15 A t the core of the Article III cases and controversies requirement is the rule that sta n d in g is limited to those who allege they personally have suffered or imminently will su f f e r an injury. As the Supreme Court has explained, an injury sufficient to meet this re q u ire m e n t is "an invasion of a legally protected interest which is (a) concrete and p a rtic u la riz e d , . . . and (b) actual or imminent, not `conjectural' or `hypothetical.'" Lujan v. D e fen d e rs of Wildlife, 504 U.S. 555, 560 (1992). While the paradigmatic standing cases c o n c ern the latter clauses in this articulation, the standing dispute in this case turns on the e x is te n c e of "a legally protected interest." Id. "Standing may be based on an interest created by the Constitution or a statute," among o t h e r sources. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 152-153 (1 9 5 1 ); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1 2 9 5 , 1304 (11th Cir. 2006) ("A legally cognizable injury requires infringement of an in te re st protected by statute or otherwise."). That interest must consist of obtaining c o m p e n s a tio n for, or preventing, the violation of a legally protected right. Id. Plaintiffs seek re d re ss through 1983 and assert violations of four "federal rights." Section 1983 imposes liability on anyone who, acting under color of state law, d e p riv e s a person of "any rights, privileges, or immunities secured by the Constitution and la w s ." 42 U.S.C. 1983. In Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980), the Supreme Court h e ld that 1983 can be used to vindicate violations of federal statutory rights. Somewhat m o re obviously, 1983 can also be used to vindicate constitutional violations. Golden State 16 T r a n s it Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989) ("As the language of the s ta tu te plainly indicates, the remedy encompasses violations of federal statutory as well as c o n s titu t io n a l rights."). The Supreme Court has made clear that "[i]n order to seek redress th ro u g h 1983 . . . a plaintiff must assert the violation of a federal right, not merely a v io la tio n of federal law." Blessing v. Freestone, 520 U.S. 329, 340 (1997). In the Third Amended Complaint, Plaintiffs allege that Defendants deprived, and are d e p riv in g , them of four federal rights guaranteed by the Medicaid statutes, 42 U.S.C. 1 3 9 6 a (a )(8 ), 1396a(a)(10)(B), 1396a(a)(3), and the substantive and procedural protections p ro v id e d by the Fourteenth Amendment to the United States Constitution. Because this is a motion to certify a class, the Court must "determine that at least one n a m e d class [or subclass] representative has Article III standing to raise each class s u b c la im ." Prado v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000). "[E]ach claim must b e analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one n a m e d plaintiff has suffered the injury that gives rise to that claim." Id. at 1280 (quoting G r iffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987)). Therefore, the Court takes up e a ch of the four claims and determines whether each named subclass representative has sta n d in g to prosecute the claims asserted by members of the subclass she seeks to represent. M a k in g the standing determination requires two steps: (1) do Plaintiffs allege violations of f e d e ra l rights remediable through 1983 such that there is a "legally protected interest" s u f f ic ie n t to support standing, and (2) is at least one member of each subclass among the 17 in j u re d with respect to the claims made by members of that subclass? 2 . Count I: Deprivation of Rights Created by 42 U.S.C. 1396a(a)(8) S u b c la ss e s One and Three contain members who Defendants have allegedly subjected to violations of the reasonable promptness requirements of 1396a(a)(8).5 The Court finds th a t Tara L., as a representative of Subclass One, has standing to assert a claim under 42 U .S .C . 1396a(a)(8).6 The Court also finds that Krystal W., as representative of Subclass T h re e has standing to assert a claim under 42 U.S.C. 1396a(a)(8). As discussed above, in o r d e r to show they have standing to bring claims on behalf of their respective subclasses, T a ra L. and Krystal W. must show that they are personally suffering an injury to a "legally p r o t e c t e d interest." It is therefore essential to first set out in some detail the interests 1 3 9 6 a (a )( 8 ) protects. a. Federal Right A s discussed more fully above, the Medicaid Act requires states provide some s e rv ic e s and permits them to provide other services. The latter group is referred to as " o p tio n a l services." The HCB Waiver programs are optional services. While it is true that Subclass One contains class members who have been determined eligible, but have not received services with reasonable promptness. Subclass Three contains members who have applied for services, but have not received a reasonably prompt claims determination. In the Pretrial Conference, held in chambers on October 9, 2008, Plaintiffs indicated they intend to classify all eleven named plaintiffs as members of a particular subclass (or, in the case of at least one, as members of more than one subclass). In their Motion for Class Certification, however, they offer one named plaintiff as a representative of each subclass. Hence, eight named plaintiffs are unclassified as of the date of this Memorandum Opinion and Order. 18 6 5 th e Waiver program is governed by an agreement between the state and the federal g o v ern m en t, "when a state elects to provide an optional service, that service becomes part o f the state Medicaid plan and is subject to the requirements of federal law." 7 Doe v. Chiles, 1 3 6 F.3d 709, 714 (11th Cir. 1998); see also Boulet v. Cellucci, 107 F. Supp. 2d 61, 76 (D. M a ss . 2000) ("once a state opts to implement a waiver program and sets out eligibility re q u ire m e n ts for that program, eligible individuals are entitled to those services and to the asso ciated protections of the Medicaid Act"). Of particular relevance here is 1396a(a)(8), w h i c h provides: [A state plan for medical assistance must] provide that all individuals w is h in g to make application for medical assistance under the plan shall have o p p o rtu n ity to do so, and that such assistance shall be furnished with r e a so n a b l e promptness to all eligible individuals. T h is provision guarantees two categories of rights. First, that Medicaid assistance be f u rn is h e d with reasonable promptness to all eligible individuals. Inherent in this guarantee is a second requirement that the agency make reasonably prompt claims determinations. In o th e r words, "the standard for informing applicants of their eligibility for Medicaid services is `reasonable promptness.'" Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007) (citing 42 Defendants are correct to point out that 42 U.S.C. 1396n(c)(3) permits a waiver of certain uniform requirements of the Medicaid Act. For example, under 1396n(c)(3), a state may wave the statewidness, comparability, and income requirements of the Medicaid Act. This provision is the namesake of the waiver services at issue in this litigation. The statute does not, however, provide for waiver of the 1396a(a)(8) reasonable promptness requirement. There is more on Alabama's waiver of comparability below. 19 7 C .F .R . 435.911); 8 Chiles, 136 F.3d at 714;9 see also, e.g., Boulet, 107 F. Supp. 2d at 64 8 42 C.F.R. 435.911 provides: (a) The agency must establish time standards for determining eligibility and inform the applicant of what they are. These standards may not exceed-(1) Ninety days for applicants who apply for Medicaid on the basis of disability; and (2) Forty-five days for all other applicants. (b) The time standards must cover the period from the date of application to the date the agency mails notice of its decision to the applicant. (c) The agency must determine eligibility within the standards except in unusual circumstances, for example-(1) When the agency cannot reach a decision because the applicant or an examining physician delays or fails to take a required action, or (2) When there is an administrative or other emergency beyond the agency's control. (d) The agency must document the reasons for delay in the applicant's case record. (e) The agency must not use the time standards-(1) As a waiting period before determining eligibility; or (2) As a reason for denying eligibility (because it has not determined eligibility within the time standards). The Eleventh Circuit has recognized the duality of the reasonable promptness right created by 1396a(a)(8): Section 1396a(a)(8) reads: "A State plan for medical assistance must ... provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals. " A corresponding regulation provides that the responsible state agency "must," among other things, "[f]urnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures," and "[c]ontinue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." Another regulation states that "[t]he agency must establish time standards for determining eligibility and inform the applicant of what they are." These periods are not to exceed "[n]inety days for applicants who apply for Medicaid on the basis of disability" or "[f]orty-five days for all other applicants. Moreover, the agency "must not use the time standards" as "a waiting period." It is this panel's task to determine whether the "reasonable promptness " clause of section 1396a(a)(8) "gives rise to a federal right." Chiles, 136 F.3d at 714. 20 9 (" T w o regulations follow from [42 U.S.C. 1396a(a)(8)]. 42 C.F.R. 435.911 provides that a state agency `must establish time standards for determining eligibility and inform the a p p lica n t of what they are. These standards may not exceed . . . [n]inety days for applicants w h o apply for Medicaid on the basis of disability.' [42 C.F.R. 435.930] instructs, `The a g e n cy must-(a) Furnish Medicaid promptly to recipients without any delay caused by the ag e n cy's administrative procedures . . . .").1 0 Subclasses One and Three contain members w h o allege violations of the first and second right, respectively. The Eleventh Circuit has recognized a federal statutory right where Medicaid statutes re q u ire placement in an ICF/MR institution with reasonable promptness pursuant to the S ta te 's Medicaid Plan. Chiles, 136 F.3d at 719 (finding "a federal right to reasonably prompt p ro v is io n of assistance under section 1396a(a)(8) of the Medicaid Act, and that [the] right is enforceable under section 1983"). Defendants argue that the reasonable promptness req u irem en t of 42 U.S.C. 1396a(a)(8) does not create privately enforceable rights here e ith e r because Doe v. Chiles has been called into question by the Supreme Court case of G o n z a g a University v. Doe, 536 U.S. 273 (2002), or because Doe v. Chiles is With respect to furnishing services, the Medicaid regulations do not define "reasonable promptness" in terms of a specific time period. The regulations only state that the agency must "[f]urnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures." 42 C.F.R. 435.930; Doe v. Bush, 162 F.3d 1037, 1062 n.20 (11th Cir. 2001). Courts considering the issue have found that "reasonable promptness" means within ninety days. Chiles, 136 F.3d at 715-19; Boulet, 107 F. Supp. 2d 61. 21 10 d istin g u ish a b le from this case in any event.1 1 First, the Eleventh Circuit has not addressed the continuing validity of Doe v. Chiles f o llo w in g Gonzaga. However, no Circuit Court of Appeals has held, either before or after G o n z a g a , that 42 U.S.C. 1396a(a)(8) dos not create privately enforceable rights. The First, T h ird , Seventh, and Tenth Circuits have found or assumed a privately enforceable right after G o n z a g a . See Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir. 2002) ("[T]here is a 1983 c a u s e of action arising from the "reasonable promptness" provision of 42 U.S.C. 1 3 9 6 a(a )(8 ) under the state model waiver plan as approved."); Sabree v. Richman, 367 F.3d 1 8 0 , 192 (3d Cir. 2004) (42 U.S.C. 1396a(a)(8) creates privately enforceable rights); Doe v . Kidd, 501 F.3d 348, 356 (7th Cir. 2007) ("Doe may proceed under 1983 to address any f a ilu re by Appellees to comply with the reasonable promptness provision of the Medicaid A c t."); Mandy R. v. Owens, 464 F.3d 1139, 1142 (10th Cir. 2006) ("[W]e assume that the in d iv id u a l plaintiffs may sue to enforce their rights under subsections (8) and (10)."). Courts h av e also held after Gonzaga that analogous and related provisions of the Medicare Act create p riv a tely enforceable rights. Among the provisions that create privately enforceable rights is 1396a(a)(10), which the Eleventh Circuit has called "materially identical" to 1 3 9 6 a (a )( 8 ). Bertrand v. Maram, 495 F.3d 452, 456 (11th Cir. 2007) ( 1396a(a)(10) is " m a ter ially identical" to 1396a(a)(8)); S.D. v. Hood, 391 F.3d 581, 603 (5th Cir. 2004) ( The Court considered a version of this argument in August 2004. (Doc. # 8.) Because years have passed and the Courts of Appeal have decided numerous cases on point during those years, the Court has decided to reconsider the issue. 22 11 1 3 9 6 a(a )(1 0 ) creates privately enforceable rights); Watson v. Weeks, 436 F.3d 1152, 1159 & n .8 (9th Cir. 2006) (42 U.S. C. 1396a(a)(10) creates privately enforceable rights); see also S a b r e e , 367 F.3d at 192 (42 U.S.C. 1396a(a)(1), 1396d(a)(15), 1396a(a)(8) create p riv ately enforceable rights); Ball v. Rodgers, 492 F.3d 1094, 1107-11 (9th Cir. 2007) (42 U .S .C . 1396n(c)(2)(C), 1396n(d)(2)(C) create privately enforceable rights). In light of the u n a n im ity of the Courts of Appeal on this issue, this Court finds that Gonzaga does not affect th e holding of Doe v. Chiles that 42 U.S.C. 1396a(a)(8) creates privately enforceable federal s ta tu t o ry rights. Defendants also argue that the private right of action recognized in Doe v. Chiles is in a p p l ic a b l e here because that case involved ICF/MR services and this case involves HCB W aive r programs. (Doc. # 178 73) ("Doe v. Chiles . . . ,which concerned an entitlement to IC F - M R , [and not HCB Waiver services,] is distinguishable and does not require a finding o f a private right of action . . ."). Defendants present a distinction without a difference. W h ile it is again true that the Eleventh Circuit has not addressed the specific issue of whether 4 2 U.S.C. 1396a(a)(8) creates a private right of action when HCB waiver services are in is s u e (rather than ICF/MR services), Courts of Appeal when considering 42 U.S.C. 1 3 9 6 a ( a ) (8 ) have uniformly found a privately enforceable right irrespective of whether the p la in tif f s sought ICF/MR or HCB Waiver services. See Chiles, 136 F.3d at 719 (finding "a f e d e ra l right to reasonably prompt provision of assistance under section 1396a(a)(8) of the M e d ica id Act); Mandy R, 464 F.3d at 1142 (finding private right of action where plaintiffs 23 so u g h t both ICF/MR and HCB Waiver services); Kidd, 501 F.3d at 356 (HCB Waiver se rv ice s); Sabree, 367 F.3d at 192 (ICF/MR services); see also Lewis, 94 F. Supp. 2d at 1236 (H C B Waiver services); Boulet, 107 F. Supp. 2d at 72 (ICF/MR and HCB Waiver services); c f. Cramer, 33 F. Supp. 2d at 1350-51(finding a private right of action when eligible persons w ere denied a choice between ICF/MR and HCB Waiver services); Watson, 436 F.3d at 1159 & n.8 (finding private right of action under 42 U.S.C. 1396(a)(10) when HCB Waiver se rv ice s were at issue); Ball, 492 F.3d at 1107-11 (holding that 42 U.S.C. 1396n(c)(2)(C), 1 3 9 6 n (d)(2 )(C ) create privately enforceable rights when HCB Waiver services were at issue). B u t see M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1307 (D. Utah 2003) (42 U.S. C. 1 3 9 6 a ( a ) (8 ) does not create a private right of action when HCB Waiver services were at is s u e ). In light of the unanimity of the Courts of Appeal on this issue, and the vast weight of lo w e r court and analogous authority, this Court finds that 42 U.S.C. 1396a(a)(8) creates p riv a te ly enforceable rights irrespective of whether the services in issue are ICF/MR or HCB W a iv e r services. b. Right-Holding Group Having thus established the existence privately enforceable rights under this portion o f the Medicaid Act, the Court turns to the second necessary inquiry: Whom does the M e d i c a id Act include in the right-holding groups? i. Provision of Services with Reasonable Promptness A lab a m a has chosen to operate an HCB Waiver plan in the state. The waiver statute 24 p ro v id e s eligible individuals in Alabama with an entitlement to waiver services and affords th e m the protections of the Medicaid Act with respect to those services. Chiles, 136 F.3d at 7 1 4 ; see also Boulet, 107 F. Supp. 2d at 76; Bryson, 308 F.3d at 89 ("The strictures of 1 3 9 6 a (a )(8 ) should apply with no less force to opt-in plans such as the waiver program. Once th e waiver plan is created and approved, it becomes part of the state plan and therefore subject to federal law; the waiver plans must meet all requirements not expressly waived."). D e f en d a n ts argue that because of the existence of a legal cap on the number of eligible waiver p a rtic ip a n ts ,1 2 no one has a "right" to waiver sevices. The Court agrees with the reasoning of B o u le t v. Cellucci, 107 F. Supp. 2d 61, 77 (D. Mass. 2000), which held that the cap on waiver se rv ice s is "simply a constraint on eligibility" and does not relieve Defendants of their s ta tu to ry obligations with respect to class members who would not exceed the cap. " In d iv id u a ls who apply after the cap has been reached are not eligible . . . . [T]he eligible ind ividu als under the cap are entitled to waiver services. In short, the cap does not support th e defendants' position that the state has total discretion in providing waiver services." B o u le t, 107 F. Supp. 2d at 77-78; see also Lewis v. N.M. Dep't of Health, 275 F. Supp. 2d 1 3 1 9 , 1344 (D.N.M. 2003) (holding that "the reasonable promptness provision applies to See 42 U.S.C. 1396n(c)(10) ("The Secretary shall not limit to fewer than 200 the number of individuals in the State who may receive home and community-based services under a waiver under this subsection."); 42 C.F.R. 441.303(f)(6) ("The State must indicate the number of unduplicated beneficiaries to which it intends to provide waiver services in each year of its program. This number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment.) 25 12 w a iv e r services once an individual is allocated an unduplicated recipient slot and the i n d iv id u a l is eligible for the waiver services," but not when a person meets the preliminary e lig ib ility requirements and a slot is not available). Therefore, eligible persons, and by extension subclass members, are those who (1) meet th e requirements for participation in the HCB Waiver programs, and (2) are entitled to one o f the lawfully limited number of waiver slots that exist. In other words, if a slot is not a v a ila b le , a person is not eligible, and so not a member of the subclass, even if that person o th e rw is e meets the eligibility requirements. ii. Reasonably Prompt Claims Determination Defining the group of persons who are entitled to a reasonably prompt claims d e te rm in a tio n under 1396a(a)(8) is less complicated. "The standard for informing a p p lic a n ts of their eligibility for Medicaid services is `reasonable promptness' and the relevant f e d e ra l . . . regulations and manuals define reasonable promptness as forty-five days or ninety d a ys , depending on the applicant." Kidd, 501 F.3d at 356 (citing 42 C.F.R. 435.911); C h ile s, 136 F.3d at 709. It is plain that all persons who apply for HCB Waiver services enjoy th e protection of 1396a(a)(8). Applicants are entitled to have their claims determined with re a s o n a b le promptness. c. Subclass One Representative The record is not yet clear regarding the number of unfilled slots in the Alabama HCB W a iv e r program. What is also not clear is whether Tara L. is entitled to one of the existing 26 s lo ts . What is clear is that all members of Subclass One must prove they are entitled to one o f the waiver slots, not only that they meet the requirements to be placed on the waiting list. T h e Court, however, is satisfied that Tara L. is potentially a member of the right-holding g ro u p . The Third Amended Complaint alleges that "[s]he needs and is qualified to receive s e rv ic e s through a Medicaid Waiver, and is eligible for services that she is not receiving." (D o c . # 107 11.) Therefore, her claim presents a live controversy and "suffice[s] to pass the m in im a l test required for invoking the Court's jurisdiction." Delta Coal Program v. Libman, 7 4 3 F.2d 852, 855 (11th Cir. 1984). d. Subclass Three Representative K rys ta l W., as named representative of Subclass Three, has personally suffered an a lle g e d violation of 1396a(a)(8). As detailed above, in 2000 Krystal's mother applied for re sid e n tia l and day habilitation services. Between 2000 and 2003 Krystal's mother made n u m e ro u s phone calls to agencies in an attempt to determine Krystal's status on the waiting list, but she did not receive any updates. She withdrew her request in 2003 but reapplied in O c to b e r, 2005. In November, 2007, the regional office received Krystal's application for day h a b ilita tio n services. This scenario states a violation of 42 U.S.C. 1396a(a)(8), because "the standard for in f o rm in g applicants of their eligibility for Medicaid services is "reasonable promptness" and th e relevant federal . . . regulations and manuals define reasonable promptness as forty-five d a ys or ninety days, depending on the applicant. Kidd, 501 F.3d at 356 (citing 42 C.F.R. 27 4 3 5 .9 1 1 .); Chiles, 136 F.3d at 709. Here, years (20002003, 20002008) passed without any a c tio n on Krystal's claims for Medicaid assistance. Under the Medicaid Act and its im p le m e n tin g regulations, persons who apply for services are entitled to a reasonably prompt c laim s determination. Because this requirement was not met with respect to Krystal, she is a member of Subclass Three with standing to assert claims on behalf of the class. 3. Count II: 42 U.S.C. 1396a(a)(10)(B) P la in tif f s' second count alleges that Defendants violated 42 U.S.C. 1396a(a)(10)(B) b y failing to provide comparable services to Waiver participants.1 3 As a general matter, when s ta te s provide assistance under Medicaid programs, benefits must be comparable among re c ip ie n ts . See 42 U.S.C. 1396a(a)(10)(B);1 4 see also Fisher v. Oklahoma Health Care A u th ., 335 F.3d 1175, 1186 n.12 (10th Cir. 2003). However, states may waive the c o m p a ra b ility requirement for programs such as the HCB Waiver programs at issue in this 13 It is not entirely clear which subclasses implicate this count. Subclass Two implicates only procedural claims and Subclass Three implicates only reasonably prompt claims determination. Subclass One, on the other hand, contains members who "have received inadequate or inappropriate services." This quoted language could encompass violations of the comparability requirements (if they were applicable), which mandate that services be alike in "amount, duration, [and] scope." 42 U.S.C. 1396a(a)(10)(B). 14 4 2 U.S.C. 1396a(a)(10)(B) provides: that the medical assistance made available to any individual described in [this section]-(i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and (ii) shall not be less in amount, duration, or scope than the medical assistance made available to individuals not described in [this section]. 28 c a se . Section 42 U.S.C. 1396n(c)(3) provides that A waiver granted under this subsection may include a waiver of the req u irem en ts of section 1396a(a)(1) of this title (relating to statewideness), s e c tio n 1396a(a)(10)(B) of this title (relating to comparability), and section 1 3 9 6 a (a )(1 0 )(C )(i)(III) of this title (relating to income and resource rules a p p lic a b le in the community). As is plainly permissible on the face of this statute, Alabama's HCB Waiver programs in c lu d e a waiver of the comparability requirement.1 5 As such, Alabama is not required to p ro v id e comparable services across participants in the HCB Waiver programs. In other w o rd s , Plaintiffs enjoy no statutory right to comparable treatment in the context of the HCB W a iv e r programs. Therefore, 1396a(a)(10)(B) does not confer rights Plaintiffs can enforce th ro u g h 1983. As a consequence, the claimed violation of 1983 cannot support standing. A c c o rd in g ly, Plaintiffs' Motion for Class Certification is due to be DENIED to the extent the p r o p o s e d subclasses allege violations of the comparability requirements. 4 . Count III: 42 U.S.C. 1396a(a)(3) and the Fourteenth Amendment a . Federal Right P r o p o s e d Subclass Two contains persons who Plaintiffs claim Defendants subjected to violations of their procedural due process rights guaranteed by 42 U.S.C. 1396a(a)(3) and th e due process clause of the Fourteenth Amendment. State agencies must provide individuals w ith an opportunity for a hearing before the agency when a claim for medical assistance is "With respect to the MR Waiver program and the LAH Waiver program, Alabama has elected to waive the requirements of 42 U.S.C. 1396a(a)(10)(B). Thus, the comparability requirement does not apply to Alabama's HCB Waiver programs." (Doc. # 178 Ex. B 3.) 29 15 d e n ie d or is not acted upon with reasonable promptness. 42 U.S.C. 1396a(a)(3);1 6 42 C.F.R. 431.206, 431.210;1 7 Cramer v. Chiles, 33 F. Supp. 2d 1342, 1351-52 (S.D. Fla. 1999); 16 42 U.S.C. 1396a(a) provides: A State plan for medical assistance must-... (3) provide for granting an opportunity for a fair hearing before the State agency to a n y individual whose claim for medical assistance under the plan is denied or is n o t acted upon with reasonable promptness. ... The Court is aware that federal regulations do not of their own force create rights enforceable through 1983 in this Circuit. Harris v. James, 127 F.3d 993, 1008-09 (11th Cir. 1997); Kissimmee River Valley Sportsman Ass'n v. City of Lakeland, 250 F.3d 1324, 1326-27 (11th Cir. 2001). However, where "a valid regulation merely further defines or fleshes out the content of [a] right, then the statute-`in conjunction with the regulation'- may create a federal right as further defined by the regulation" Harris, 127 F.3d at 1009. The Eleventh Circuit in Harris and Kissimmee River held that the regulations in issue went "beyond explicating the specific content of the statutory provision and impose[d] distinct obligations in order to further broad objectives underlying the statutory provision." Kissimmee River, 250 F.3d at 1326 (quoting Harris, 127 F.3d at 1009). In Harris the Court held that a regulation requiring transportation of Medicaid recipients was too far removed from statutory reasonable promptness and comparability requirements and created "distinct obligations." 127 F.3d at 1007-11. Here, the relationship between the right-creating statute and the regulations is much different. The regulations cited here are contained in a particular subpart E of the Code of Federal Regulations titled "Fair Hearings for Applicants and Recipients." This Subpart "[i]mplements section 1902(a)(3) of the Act [codified as 42 U.S.C. 1396a(a)(3)], which requires that a State plan provide an opportunity for a fair hearing to any person whose claim for assistance is denied or not acted upon promptly." 42 C.F.R. 431.200. The remainder of the Subpart fleshes out the meaning of "fair hearing." These regulations do not create "distinct obligations." Rather, they simply explain what it means to have a fair hearing under the Medicaid Act. The requirements are familiar to any student of American legal process: notice containing the reasons and basis for the opinion, a proceeding that meets the due process standards of Goldberg v. Kelly, a right to appeal an adverse decision, an impartial decision maker, access to evidence to be used against the recipient, et cetera. Congress intended to provide a "fair hearing." These regulations define that term and do not impose "distinct obligations." Therefore, they detail the federal right created by 42 U.S.C. 1396a(a)(3) and remediable through 1983. The Court is also satisfied that 42 C.F.R. 435.911, which sets a number of days a state 30 17 B r y so n v. Shumway, 177 F. Supp. 2d 78, 81 (D.N.H. 2001). Additionally, State a d m in is tra tio n of Medicaid programs must meet the constitutional due process minimums set o u t in Goldberg v. Kelly, 397 U.S. 254, 267-71 (1970).18 T h e implementing regulations specify the content of the notice and the requirements f o r a fair hearing. The notice must inform the beneficiary of the action the agency intends to ta k e and the reason for the action, of the facts and law that support the action, and of the right to a fair hearing. 42 C.F.R. 431.210; see also id. 431.206(b) (requiring agencies to inform e v e ry applicant or recipient in writing of the right to a hearing and the method by which one m a y obtain a hearing any time an individual applies for Medicaid or when an agency takes a c tio n affecting benefits). These procedural protections are applicable to State's Medicaid Plans, which includes th e HCB Waiver program. See Chiles, 136 F.3d at 714 ("when a state elects to provide an o p tio n a l service, that service becomes part of the state Medicaid plan and is subject to the re q u ire m e n ts of federal law."); Parry v. Crawford, 990 F. Supp. 1250, 1258-59 (D. Nev. has to determine eligibility and is cited in various parts of this Opinion, is enforceable through 1983 under Harris. Goldberg requires (1) "Timely and adequate notice," including notice of adverse evidence; (2) Opportunity to participate in the decision making; (3) "Effective opportunity to defend by confronting any adverse witnesses" and rebutting other information; (4) Representation by counsel; (5) A record of the proceedings and some form of reasons for the decision; and (6) An impartial decision-maker. 397 U.S. at 267-68. This constitutional guarantee is rendered redundant, however, by 42 C.F.R. 431.205, which requires that a state's hearing system "meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254 (1970)." See also Hernandez v. Medows, 209 F.R.D. 665, 670 (S.D. Fla. 2002); Hymons v. Williams, 795 F. Supp. 1511, 1517 (M.D. Fla. 1992). 31 18 1 9 9 8 ); King v. Fallon, 801 F. Supp. 925, 937-38 (D.R.I. 1992). Plaintiffs therefore have a lle g e d a violation of a right remediable through 1983, which, in turn, can support standing. S o long as at least one named member of Subclass Two is among the injured, the standing re q u ire m e n ts are met with respect to that subclass. b. Subclass Two Representative B e v e rly W., as named representative of Subclass Two, has personally suffered an a lle g e d violation of 1396a(a)(3). As detailed above, in 1992 and 1996 Beverly W.'s mother ap p lied for residential and day habilitation services. It was not until 2005 that Beverly's m o th e r was informed that Beverly was not eligible to receive services because she was found to be functioning above the range of mental retardation.1 9 Beverly's mother requested the 310 b o a rd reconsider the determination, but she did not receive notice regarding how to object to b e in g denied eligibility. This scenario clearly states a violation of 42 U.S.C. 1396a(a)(3), which requires state p la n s "provide for granting an opportunity for a fair hearing before the State agency to any in d iv id u a l whose claim for medical assistance under the plan is denied or is not acted upon w ith reasonable promptness." Moreover, the notice here did not inform the beneficiary of th e action the agency intended to take, the reason for the action, of the facts and law that su p p o rt the action, of the right to a fair hearing, and of the method by which one may obtain Beverly's mother received no communication regarding the status of the a p p lic a tio n or placement on the waiting list in the eight years following the 1996 a p p li c a ti o n . 32 19 a hearing. Sections 42 C.F.R. 431.210, 431.206(b) require the agency to provide this in f o rm a tio n any time an individual applies for Medicaid or when an agency takes action a f f e c tin g benefits.2 0 Because these requirements were not met with respect to Beverly W., she is a member of Subclass Two with standing to assert claims on behalf of the class. d. Count IV: Fourteenth Amendment Substantive Due Process Count IV of Plaintiffs' Third Amended Complaint alleges that Defendants violated th e Constitutional rights of the putative class members by "fail[ing] or refus[ing] to remedy th e known and continuing violation of plaintiffs' clearly established constitutional rights to h a b ilita tio n , care, and treatment." 2 1 (Doc. # 107 144.) The Court cannot locate, in caselaw o r elsewhere, support for the proposition that there is a "clearly established constitutional right to habilitation, care, [or] treatment." Because there is no substantive due process right that g u a ra n te e s protection from the conduct Plaintiffs complain of, there is no alleged violation o f 1983, and that statute cannot support standing in this case. Accordingly, Plaintiffs' M o tio n for Class Certification is DENIED to the extent the subclasses implicate alleged v io la tio n s of substantive due process rights. B. Rule 23(a) Analysis The alleged violations also appear to violate the due process rights guaranteed by Goldberg v. Kelly, 397 U.S. 254, 267-71 (1970), which apply as a matter both of constitutional law and by virtue of 42 C.F.R. 431.205. Once again it is not clear which subclasses contain members whose substantive due process rights have allegedly been violated. Perhaps all of them. In any event, there is no such right. 33 21 20 O n e or more persons may sue as representatives of a class if the following four re q u ire m e n ts are satisfied: (1) (2) (3 ) the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or d e f en s e s of the class; and (4 ) the representative parties will fairly and adequately protect the interests of the c la s s . F e d . R. Civ. P. 23(a). The court must take the allegations in support of the certification as true and refrain f ro m conducting a preliminary assessment of the merits of the case. Eisen v. Carlisle & J a c q u e lin , 417 U.S. 156, 177 (1974). Each subclass must independently satisfy the Rule 23 re q u ire m e n ts . Johnson v. American Credit Co., 581 F.2d 526, 532 (5th Cir. 1978).22 1 . Numerosity The Court must examine the facts of each case to assess whether a putative class is s u f f ic ie n tly numerous. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). G e n e ra lly, however, classes of more than forty members satisfy the numerosity requirement. C o x v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986); Dujanovic v. In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981. 34 22 M o r tg a g e A m e ric a , Inc., 185 F.R.D. 660, 666 (N.D. Ala. 1999). When the exact number of c las s members cannot be ascertained, the court may make "common sense assumptions" to s u p p o rt a finding of numerosity. Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir. 1 9 8 3 ). The primary focus of the numerosity requirement is whether joinder is impracticable. T h u s, in cases involving mentally disabled plaintiffs, courts have found that the numerosity r e q u i r e m e n t is satisfied because joinder would be impracticable due to potential class m e m b e rs ' disabilities, even where the class size is relatively small. Armstead v. Pingree, 629 F . Supp. 273, 279 (M.D. Fla. 1986); see D.W. v. Poundstone, 165 F.R.D. 661, 670 (M.D. Ala. 1 9 9 6 ); Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993). a. Subclass One: Persons Who Have Not Received Waiver Services with Reasonable P rom ptness Plaintiffs argue that the numerosity requirement is easily satisfied because there were o v e r 1,600 people on the waiting list as of August 2007. (Doc. # 128-3, PX 1, at 3.) D e f e n d a n ts argue that the number of people on the waiting list does not establish numerosity b e c au s e the list consists of persons who have different levels of need. (Doc. # 129 39.) The P a rtie s ' arguments are both slightly off the mark. As discussed above, members of Subclass One are those who (1) meet the requirements f o r participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully lim ite d number of waiver slots. In other words, if a slot is not available, a person is not e lig ib le, and is therefore not a class member, even if a person otherwise meets the eligibility 35 re q u ir e m e n ts . Plaintiffs have not provided the Court with sufficient information to make a d e ter m in a tio n regarding numerosity. It is not clear whether the Waiver programs are full.2 3 T h ere are neither allegations nor evidence that there are empty slots, aside from slots that are v a c ate d in the middle of the fiscal year. The Court also lacks information about how many s lo t s are vacated during the fiscal year. In short, if the Waiver programs are full, Plaintiffs' m o tio n to certify Subclass One must be denied, because the class is a null set. If, on the other h a n d , there are a number available slots in the waiver program sufficient to meet the n u m e ro s ity requirement, Plaintiffs' motion to certify Subclass One should be granted, p ro v id e d that the other requirements of Rule 23 are met.24 W h ile it is true that the Court could make common sense assumptions to estimate the s iz e of the putative subclass, Plaintiffs have not provided even enough information for the In his July 2007 affidavit, Fordyce Mitchell (Doc. # 105 Ex.1 30) states: "The Department requested in April 2007, and has now been approved, to serve an additional 60 individuals, bringing the total available `slots' to 5620. Current enrollment in the MR Waiver program is approximately 5154 and the Department is in the process of filling the additional slots." (emphasis added). The Court cannot determine from this limited information the size of this putative subclass. The Court notes that the expected gross disparity between the number of available Waiver slots and the number of persons on the waiting list (many of whom

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