H. et al v. Reese

Filing 80

OPINION and ORDER GRANTING 62 Motion to Certify Class. Signed by Judge Thomas W. Thrash, Jr on 6/13/2017. (btql)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
M. H.
a minor child, by and through his
mother and legal guardian, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:15-CV-1427-TWT

FRANK BERRY
in his official capacity as
Commissioner of the Department of
Community Health,
Defendant.

OPINION AND ORDER

This is an action seeking injunctive and declaratory relief against the Georgia
Department of Community Health. It is before the Court on the Plaintiff’s Motion for
Class Certification [Doc. 62]. For the reasons set forth below, the Court GRANTS the
Plaintiff’s Motion for Class Certification [Doc. 62].
I. Background
When the Class Action Complaint was filed, the Plaintiff M.H. was a thirteenyear-old Medicaid beneficiary.1 The Plaintiff suffered a catastrophic brain injury as

1

Compl. ¶ 1.

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a toddler, resulting in a number of neurological conditions including static
encephalopathy, cerebral palsy, spastic quadriplegia, and seizure disorder.2 Under the
Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) provisions of the
Medicaid Act, Georgia is required to provide eligible children with “medically
necessary” health care services.3 “Medically necessary” means all services or
treatments provided by the Medicaid Act that will “correct or ameliorate” any physical
and mental illnesses and conditions.4 One such service is in-home skilled nursing care,
which the Georgia Pediatric Program (“GAPP”) provides to eligible children.5 The
Plaintiff participates in the GAPP.6
The Defendant Frank Berry is the Commissioner of Georgia’s Department of
Community Health (“DCH”), which administers the Medicaid program in Georgia.7
The Georgia Medical Care Foundation, Inc. (“GMCF”) is a non-profit corporation
that, through a contractual relationship with DCH, reviews and decides all requests for

2

Id.

3

Id. ¶ 5.

4

42 U.S.C. § 1396d(r)(5).

5

Compl. ¶¶ 2, 60.

6

Id. ¶ 2.

7

See [Doc. 78].

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nursing care made on behalf of Medicaid-eligible children in Georgia.8 When
determining whether to grant a request for nursing services, GMCF must adhere to the
medically necessary standard discussed above and must consider the treating
physician’s opinion of what is medically necessary for his or her patient.9
The Plaintiff currently receives eighteen hours per day of in-home skilled
nursing care through the GAPP.10 On April 1, 2015, GMCF notified the Plaintiff’s
adoptive mother, Thelma Lynah, that the Plaintiff was being placed on a “weaning
schedule” that would incrementally reduce his in-home nursing hours from eighteen
hours per day to twelve hours per day over an eight week period.11 According to the
Complaint, this weaning schedule contradicts the Plaintiff’s treating physician’s
recommendation of eighteen hours per day of in-home skilled nursing care.12 On April

8

Compl. ¶ 63.

9

Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1255 (11th Cir. 2011)
(holding that “[a] state may adopt a definition of medical necessity that places limits
on a physician’s discretion,” but “[b]oth the treating physician and the state have roles
to play”).
10

Compl. ¶ 74.

11

Id. ¶ 75.

12

Id. ¶ 110.

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29, 2015, M.H. sued Clyde L. Reese, III13 under 42 U.S.C. § 1983, alleging that the
Defendant violated his rights under the EPSDT provisions of the Medicaid Act.14 The
Plaintiff seeks declaratory and injunctive relief on behalf of himself and similarly
situated individuals to enjoin the Defendant from violating the Medicaid Act by
denying him and others medically necessary services.15 On July 6, 2015, the Court
granted the Plaintiff preliminary injunctive relief and enjoined Reese from reducing
the skilled nursing care hours provided to the Plaintiff below eighteen hours per day.16
The Plaintiff now files a Motion to Certify a Rule 23(b)(2) class of “all
Medicaid-eligible individuals under the age of 21 who are now, or will in the future
be, [participants] in the GAPP program and are subject to the policies and practices
of Defendant.”17 The Plaintiff’s class action focuses on the following policies or

13

When the Plaintiff filed his Complaint, Clyde L. Reese, III was the
Commissioner of the Georgia Department of Community Health.
14

[Doc. 1]. It should be noted that this is not the Plaintiff’s first lawsuit
against the DCH Commissioner. In 2008, M.H. brought a similar complaint, alleging
that DCH failed to provide all medically necessary nursing hours. The Plaintiff also
sought class certification. This Court denied the Plaintiff’s request for class
certification, holding that the Plaintiff failed to demonstrate numerosity. See Hunter
v. Cook, No. 1:08-cv-2930-TWT, 2012 WL 12831938, at *3-5 (N.D. Ga. Aug. 2,
2012).
15

Compl. ¶ 8.

16

[Doc. 13].

17

Mot. for Class Cert., at 21.

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practices that he alleges fail to conform to the EPSDT provisions: (1) GMCF’s alleged
failure to accord the treating doctor’s recommendation the appropriate weight when
determining a member’s nursing hours; (2) GMCF improperly assumes that the
primary caregivers can be taught all skilled nursing needs in order to wean class
members off the program; and (3) GMCF’s alleged failure to consider the capacity of
the class members’ primary caregivers when determining how many nursing hours are
appropriate.18 The Defendant contends that the proposed class does not comply with
Federal Rule of Civil Procedure 23.
II. Class Certification Standard
To maintain a case as a class action, the party seeking class certification must
satisfy each of the prerequisites of Rule 23(a) and at least one of the provisions of

18

Id. at 4. The Court notes that two other policies are listed in the Plaintiff’s
Motion. Specifically, the Plaintiff alleges that the Defendant “fails to take into account
requirements of the Georgia Nurse Practice Act,” and that the Defendant “gives notice
to caregivers . . . of the reasons for GMCF’s decisions to reduce hours only in
conclusory final letters of notification.” Id. However, the Plaintiff does not mention
the Georgia Nurse Practice Act policy in his Reply Brief, and the Court already
dismissed the Plaintiff’s claim regarding the final letters. As a result, the Court will
not consider those policies or practices for purposes of class certification.
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Rule 23(b).19 Rule 23(a) sets forth the four prerequisites to maintain any claim as a
class action:
One or more members of a class may sue or be sued as representative
parties on behalf of all members only if: (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.20
These prerequisites are commonly referred to as: (1) numerosity, (2) commonality, (3)
typicality, and (4) adequacy of representation.21 Failure to establish any one of the
four factors precludes certification. In addition, under Rule 23(b), the individual
plaintiffs must convince the Court that: (1) prosecuting separate actions by or against
individual members of the class would create a risk of prejudice to the party opposing
the class or to those members of the class not parties to the subject litigation; (2) the
party opposing the class has refused to act on grounds that apply generally to the class,
necessitating final injunctive or declaratory relief; or (3) questions of law or fact

19

Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004), abrogated
in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639
(2008)).
20

FED. R. CIV. P. 23(a).

21

Cooper v. Southern Co., 390 F.3d 695, 711 n.6 (11th Cir. 2004),
overruled in part on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58
(2006).
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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.22

The party seeking class

certification bears the burden of proving that these requirements are satisfied.23
The decision to grant or deny class certification lies within the sound discretion
of the district court.24 When considering the propriety of class certification, the court
should not conduct a detailed evaluation of the merits of the suit.25 Nevertheless, the
court must perform a “rigorous analysis” of the particular facts and arguments asserted
in support of class certification.26 Frequently, that “rigorous analysis” will entail some
overlap with the merits of the plaintiff’s underlying claim.27

22

FED. R. CIV. P. 23(b).

23

General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Valley
Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003).
24

Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
25

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).

26

Falcon, 457 U.S. at 161; Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th

Cir. 1984).
27

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-52 (2011).

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III. Discussion
A. Rule 23(a)
To warrant class certification, the Plaintiff must satisfy all four requirements
under Rule 23(a) and at least one of the requirements of Rule 23(b). Rule 23(a)
provides that:
One or more members of a class may sue . . . on behalf of all members
only if: (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.28
These requirements are referred to as “numerosity,” “commonality,” “typicality,” and
“adequacy.” And although not explicitly stated in Rule 23, it is well accepted that
“[b]efore a district court may grant a motion for class certification, a plaintiff . . . must
establish that the proposed class is adequately defined and clearly ascertainable.”29
This requirement is referred to as ascertainability.

28

FED. R. CIV. P. 23(a).

29

Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)
(quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)); see also
Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 534 (S.D. Fla. 2015) (“The
court may address the adequacy of the class definition before analyzing whether the
proposed class meets the Rule 23 requirements.”).
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1. Ascertainability
The Defendant challenges whether the putative class is ascertainable. “An
identifiable class exists if its members can be ascertained by reference to objective
criteria.”30 The analysis of the objective criteria must be administratively feasible,
meaning identifying class members is a “manageable process that does not require
much, if any, individual inquiry.”31 Here, the Court finds that the proposed class is
ascertainable. The class includes all current and future GAPP program members. The
members can be ascertained through a review of DCH’s and GMCF’s records. The
Defendant counters that “[t]he only way one can be part of this class is if the member
is not receiving all medically necessary hours.”32 And, according to the Defendant,
because an inquiry into whether each putative class member is receiving all medically
necessary hours is very fact specific, the putative class members cannot be ascertained
through a manageable process. However, a GAPP participant can still be a class
member without having his or her hours reduced. Indeed, every GAPP participant is

30

Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782, 787
(11th Cir. 2014) (quoting Fogarazzo v. Lehman Bros., Inc., 263 F.R.D. 90, 97
(S.D.N.Y. 2009)).
31

Id. (quoting NEWBERG ON CLASS ACTIONS § 3.3 (5th ed.)).

32

Def.’s Resp. Br., at 19.

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subject to the policies and practices the Plaintiff is challenging. Thus, the Court finds
that the class is ascertainable.
2. Numerosity
To satisfy the numerosity requirement, the Plaintiff must show that joinder of
all members of the putative class would be “impractical.”33 “Practicability of joinder
depends on many factors, including, for example, the size of the class, ease of
identifying its numbers and determining their addresses, facility of making service on
them if joined and their geographic dispersion.”34 “[W]hile there is no fixed
numerosity rule, generally less than twenty-one is inadequate, more than forty
adequate, with numbers between varying according to other factors.”35 Further,
“[w]hen the exact number of class members cannot be ascertained, the court may
make ‘common sense assumption’ to support a finding of numerosity.”36 Nevertheless,
“a plaintiff still bears the burden of making some showing, affording the district court

33

FED. R. CIV. P. 23 (a)(1).

34

Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986).

35

Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.

1986).
36

Susan J. v. Riley, 254 F.R.D. 439, 458 (M.D. Ala. 2008) (quoting Evans
v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983)).
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the means to make a supported factual finding, that the class actually certified meets
the numerosity requirement.”37
The Plaintiff contends that there are approximately 763 putative class
members.38 This approximation is based on the testimony of GAPP Program Specialist
Sharon Collins who estimated that there are 763 members in GAPP’s “in-home skilled
nursing services.”39 Thus, according to the Plaintiff, the proposed class easily satisfies
the numerosity requirement. In response, the Defendant – citing Hunter v. Cook –
argues that the Plaintiff must demonstrate “how often the Defendant reduced or
eliminated[] benefits, along with the total number of individuals in the GAPP
program.”40 But the Defendant’s argument is not responsive to the Plaintiff’s class
definition here. The class definition includes all GAPP members, not just the members
whose benefits have been reduced or eliminated. By contrast, in Hunter v. Cook, the
class definition was more narrow: “only those [members] whose benefits [had] been
reduced, delayed, or denied due to GAPP policies.”41 The Plaintiff therefore has

37

Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009).

38

Pl.’s Reply Br., at 3.

39

Collins 2016 Dep., at 43.

40

Def.’s Resp. Br., at 17 (quoting Hunter v. Cook, No. 1:08-cv-2930-TWT,
2012 WL 12831938, at *4 n.3 (N.D. Ga. Aug. 2, 2012)).
41

Hunter, 2012 WL 12831938, at *2.

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presented sufficient evidence for numerosity. Even if the Plaintiff was required to
submit evidence regarding the number of members whose benefits had been reduced
or denied, the Plaintiff has put forth detailed evidence of at least 50 GAPP members
whose nursing hours have been reduced since 2015.42 This is a sufficient number of
putative class members for numerosity.
3. Commonality
The commonality requirement is satisfied if the named plaintiff demonstrates
the presence of questions of law or fact common to the entire class.43 Before the
Supreme Court’s decision in Wal-Mart v. Dukes, the issue of commonality was rarely
in dispute. However, Wal-Mart “defined ‘common question’ with more specificity
than it had in prior decisions while reiterating the importance of . . . centrality.”44
Specifically, the Supreme Court held that a common question is one that is “of such
a nature that it is capable of classwide resolution – which means that determination
of its truth or falsity will resolve an issue that is central to the validity of each one of
the claims in one stroke.”45 It is not necessary that all questions of law and fact be

42

See Norris Decl., Exs. 2-3.

43

FED. R. CIV. P. 23 (a)(2).

44

NEWBERG ON CLASS ACTIONS § 3:18 (5th ed.).

45

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

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common.46 Indeed, “[e]ven a single [common] question” is sufficient to satisfy the
commonality requirement.47 Nevertheless, commonality “does not mean merely that
they have all suffered a violation of the same provision of law.”48 “Commonality
requires the plaintiff to demonstrate that the class members ‘have suffered the same
injury.’”49
One method of bridging the “gap” between individual harms and a common
injury is to allege a uniform policy or practice by the defendant that affects all putative
class members.50 In Wal-Mart, the putative class, which consisted of 1.5 million
women who were current or former Wal-Mart employees, alleged that “the discretion
exercised by their local supervisors over pay and promotion matters violate[d] Title
VII by discriminating against women.”51 The Supreme Court, however, ruled that

46

Id. at 359.

47

Id. (alteration in original) (quoting Richard A. Nagareda, The
Preexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV.
149, 176 n.110 (2003)).
48

Id. at 350.

49

Id. at 349-50 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147,

157 (1982)).
50

Id. at 352-53 (quoting Falcon, 457 U.S. at 157-58); see also Holmes v.
Godinez, 311 F.R.D. 177, 217 (N.D. Ill. 2015) (“A single system-wide illegal practice
or policy can satisfy the commonality requirement.”).
51

Wal-Mart, 564 U.S. at 342.

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Wal-Mart’s “‘policy’ of allowing discretion by local supervisors” was not a common
policy or practice that could satisfy the commonality requirement.52 Rather, “it is a
policy against having uniform employment practices.”53 “Without some glue holding
the alleged reasons for all those decisions together, it will be impossible to say that
examination of all the class members’ claims for relief will produce a common answer
to the crucial question why was I disfavored.”54
Here, the Defendant argues that, like the class claims in Wal-Mart, the
Plaintiff’s claims challenging hundreds of individual decisions regarding the reduction
of nursing hours do not create a common question. But even if determining the
appropriate amount of nursing hours necessitates individualized inquiries down the
road, common questions regarding whether the GAPP’s higher level policies and

52

Id. at 355.

53

Id.

54

Id. at 352.

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practices violate the Medicaid Act may satisfy commonality.55 As a result, the Court
now turns to the Plaintiff’s proposed common questions.
In his Motion for Class Certification, the Plaintiff asserts the following
overarching common question: “whether the current administration of the GAPP
program by DCH and GMCF violates the Medicaid Act.”56 This broad question gives
the Court pause. It bears resemblance to the type of generalized question the Supreme
Court warned against in Wal-Mart – a question which simply asks whether the class
members all “suffered a violation of the same provision of law.”57 But the Plaintiff has
set forth the specific policies or practices he is challenging. As the Court noted above,
he challenges the following purported policies and practices: (1) GMCF’s weaning
policy; (2) GMCF’s failure to consider the primary caretaker’s capacity; and (3)
GMCF’s failure to “accord the treating physician’s recommendation the appropriate

55

See Thorpe v. District of Columbia, 303 F.R.D. 120, 146 (D.D.C. 2014)
(holding that commonality existed where the plaintiffs’ claims raised several common
questions, including “(1) are there deficiencies in the District’s existing system of
transition assistance? (2) if so, what are those deficiencies? and (3) are the proven
deficiencies causing unnecessary segregation?”); Lane v. Kitzhaber, 283 F.R.D. 587,
597 (D. Or. 2012) (“despite the individual dissimilarities among class members,
‘commonality is satisfied where the lawsuit challenges a system-wide practice or
policy that affects all the putative class members’” (quoting Armstrong v. Davis, 275
F.3d 849, 868 (9th Cir. 2001))).
56

Mot. for Class Cert., at 25.

57

Wal-Mart, 564 U.S. at 350.

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weight.”58 To prove these policies or practices exist, the Plaintiff has put forth various
evidence. For example, to demonstrate that the GMCF operates a weaning policy, the
Plaintiff points to the GAPP’s official “Policies and Procedures,” which state that the
primary caregiver is expected to assume “some” responsibility for performing skilled
nursing tasks.59 The Plaintiff then cites testimony from a GMCF employee who
testified that, when a weaning schedule is put in place, “it’s getting the family used
to they’re going to be assuming more care of their child and picking up more of the
nursing care of their child.”60 Moreover, a GMCF representative testified that DCH
does not permit GMCF to take into account the primary caregiver’s outside
obligations, such as work and other dependents, when determining a GAPP member’s
nursing hours.61 The Defendant admits that all GAPP policies are applicable to every
member of the GAPP program.62 Thus, if the Plaintiff proves that these policies and
practices exist and are in violation of the Medicaid Act, then each class member will
have suffered the same harm.

58

Pl.’s Reply Br., at 6-9.

59

Mot. for Class Cert., Ex. A, §§ 702.1(B)-(D).

60

Carey Dep., at 29-30.

61

Collins 2016 Dep., at 72.

62

Def.’s Resp. Br., at 2.

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This case is analogous to P.V. ex rel. Valentin v. School District of
Philadelphia. There, a group of autistic students in the Philadelphia School District
challenged the legality of the District’s “up-leveling” policy, which resulted in autistic
students automatically transferring from one school to another with little input from
the autistic students’ parents.63 The plaintiffs alleged that the policy violated, inter
alia, the Individual and Disabilities Act because it occurred with little or no parental
notice or involvement and did not consider the children’s individual circumstances.64
As a result, the plaintiffs sought to certify a (b)(2) class of all autistic students in the
Philadelphia School District “who have been transferred, are in the process of being
transferred, or are subject to being transferred pursuant to the School District’s upperleveling policy.”65 The School District contended that, in order for the plaintiffs to
prevail, they would have to present “individualized proof of how each class member
was affected by the . . . ‘policy.’”66 Thus, according to the School District
commonality could not be met.

63

289 F.R.D. 227, 228 (E.D. Pa. 2013).

64

Id. at 231.

65

Id.

66

Id. at 233.

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The district court disagreed with the School District. It noted that the School
District’s argument failed to recognize that the “Plaintiffs’ Complaint alleges a
systemic failure, not a failure of the policy as applied to each member individually.”67
The district court found that common questions of law or fact included “whether the
School District upper-levels autistic students without meaningful parental
involvement, . . . [and] whether the School District considers the individual needs of
autistic students prior to deciding where to upper-level that student.”68 Like the autistic
students in P.V., the Plaintiff here challenges broad policies and practices that apply
to each member of the GAPP. Common questions of law or fact that are susceptible
to common answers are present. For example, whether the GMCF operates a weaning
policy, and whether such a program is in violation of the Medicaid Act, are central
questions to the Plaintiff’s and class members’ claims. The Plaintiff, therefore, has
satisfied the commonality requirement.
4. Typicality
The typicality requirement mandates that the claims and defenses of the
representative plaintiffs are typical of the claims and defenses of the class.69 This

67

Id. at 234.

68

Id.

69

FED. R. CIV. P. 23(a)(3).

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requirement is satisfied when “a plaintiff’s injury arises from or is directly related to
a wrong to a class, and that wrong includes the wrong to the plaintiff.”70 But “[c]lass
members’ claims need not be identical to satisfy the typicality requirement.”71 This is
because “typicality measures whether a sufficient nexus exists between the claims of
the named representatives and those of the class at large.”72 “A sufficient nexus is
established if the claims or defenses of the class and the class representative arise from
the same event or pattern or practice and are based on the same legal theory.”73
Here, the named Plaintiff and the putative class members are all Georgia
residents who receive EPSDT services through the GAPP; moreover, all of them are
subject to the GMCF’s policies and practices that allegedly result in improper denials,
delays, reductions, or terminations of EPDST services. They seek an injunctive relief
to remedy the alleged harm caused by the Defendant’s practices and policies. As a
result, the Court finds that the typicality requirement is met. In response, the
Defendant argues that the named Plaintiff is atypical, because he is seeking “personal
70

Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1022 (11th Cir.
1996), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553
U.S. 639, 641 (2008).
71

Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012).

72

Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004) (quoting
Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)).
73

Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984).

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support services” in addition to nursing care services.74 But, according to the Plaintiff,
he is not seeking class treatment for his personal support services claim.75 And, of
course, under Rule 23(c)(4), the Court has the power to allow class treatment for only
certain issues.76 As a result, the class claims are limited to those regarding nursing
services. The Defendant then argues that because an individualized inquiry is required
to determine the medically necessary amount of nursing hours for each member,
typicality cannot be met. However, the Defendant’s argument – once again – misses
the point of the Plaintiff’s Motion for Class Certification. The Plaintiff’s class
certification motion is challenging the legality of GMCF’s general policies and
practices, not the legality of those policies and practices as applied to each particular
GAPP member.
4. Adequacy of Representation
To prove adequacy of representation, a plaintiff must demonstrate that the class
representatives “fairly and adequately protect the interests of the class.”77 This
requirement serves to uncover conflicts of interest between named parties and the

74

Def.’s Resp. Br., at 23.

75

Pl.’s Reply Br., at 10.

76

FED. R. CIV. P. 23(c)(4).

77

FED. R. CIV. P. 23(a)(4).

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class they seek to represent.78 A determination of adequacy “encompasses two
separate inquiries: (1) whether any substantial conflicts of interest exist between the
representatives and the class; and (2) whether the representatives will adequately
prosecute the action.”79 Here, the Defendant contends a substantial conflict of interest
exists, because the named Plaintiff is seeking eighteen hours of skilled nursing and six
hours of personal support services. The Defendant reasons that “if the Court accepts
Plaintiff’s M.H.’s premise that the Department must consider the caregiver’s personal
circumstance in allocating hours, it is likely the provision of personal support services
would have some effect on the allocation of hours.”80 The Court disagrees. The
Defendant’s proffered conflict is largely based on speculation. A class member’s
circumstances could mandate that he or she still receive all requested personal support
services hours in addition to nursing services hours. And as the Plaintiff points out,
personal support services cannot be substituted for skilled nursing services.81 Thus,
the Court is unwilling to find a conflict of interest.

78

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).

79

Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.

2003).
80

Def.’s Resp. Br., at 25.

81

Collins 2016 Dep., at 129-30.

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Next, the Defendant argues that the Plaintiff has failed to demonstrate that the
class counsel is adequate to represent the putative class. Specifically, the Defendant
argues that merely asserting his lawyers have worked on one prior case involving
medically fragile children is insufficient to prove adequacy. In response, the Plaintiff
has put forth the Declaration of his attorney – John H. Fleming. As stated in the
Declaration, Mr. Fleming has extensive experience working on complex litigation
matters in addition to class actions.82 Mr. Fleming’s co-counsel, Joshua Norris, has
extensive experience advocating for medically necessary services for children,
including litigating multiple cases on behalf of GAPP members.83 Furthermore,
counsel is pursuing the matter on a pro-bono basis and have agreed to advance
litigation costs.84 As a result, the Court finds that the Plaintiff’s counsel is adequate.
B. Rule 23(b)(2)
Finally, the Plaintiff must demonstrate that class treatment is appropriate
pursuant to Rule 23(b)(2). Certification of a class seeking injunctive relief is
appropriate where “the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding

82

Fleming Decl. ¶¶ 4-8.

83

Id. ¶¶ 11-12.

84

Id. ¶ 14.

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declaratory relief is appropriate respecting the class as a whole.”85 The Supreme Court
has given special emphasis to the final clause: “Rule 23(b)(2) applies only when a
single injunction or declaratory judgment would provide relief to each member of the
class. It does not authorize class certification when each individual class member
would be entitled to a different injunction or declaratory judgment against the
defendant.”86
Here, the Defendant argues that because the Plaintiff is claiming that DCH fails
to provide all medically necessary skilled nursing hours, a single injunction or
declaratory judgment would not provide relief to the whole class. The Defendant
emphasizes that “whether the Department provides all medically necessary hours is
a fact specific inquiry.”87 To be sure, the issue of whether a specific GAPP member
is receiving all medically necessary hours is an individualized inquiry. But the
Plaintiff is not seeking an individualized review of each GAPP member’s nursing
hours as injunctive relief. Rather, he seeks injunctive or declaratory relief that certain

85

FED. R. CIV. P. 23(b)(2).

86

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360-61 (2011).

87

Def.’s Resp. Br., at 27.

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GMCF policies and practices are unlawful. “By their very nature such policy changes
are generally applicable, and therefore would benefit all class members.”88
This case is distinguishable from cases where the court denied certification
because the plaintiffs sought, for instance, a court-created panel to determine a
separate injunctive order for each class member. In Jamie S. v. Milwaukee Public
Schools, the plaintiffs – a group of school students with disabilities – sought the
creation of “a court-monitored system to identify disabled children who were delayed
or denied entry into the [individualized education programs] process, implement
‘hybrid’ IEP meetings, and craft compensatory-education remedies.”89 In reversing the
lower court’s order granting certification, the Seventh Circuit found that such an
injunction was not appropriate relief under Rule 23(b)(2). The complex remedial
scheme would “merely initiate a process through which highly individualized
determinations of liability and remedy are made,” making it “class-wide in name
only” and “certainly not . . . final.”90 Unlike the injunctive relief in Jamie S., the
Plaintiff here seeks systemic relief that mandates the Defendant accord greater weight
to the physicians’ recommendations, consider the capacity of the primary caregiver,

88

N.B. v. Hamos, 26 F. Supp. 3d 756, 774 (N.D. Ill. 2014).

89

668 F.3d 481, 485 (7th Cir. 2012).

90

Id. at 499.

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and stop operating the program as a weaning program. As mandated by Wal-Mart, this
class action can be resolved in one stroke with an injunction or declaratory judgment
finding the Defendant’s policies and practices to be in violation of the Medicaid Act.
The Court therefore concludes that the requirements of Rule 23(b)(2) are met.

IV. Conclusion
For these reasons, the Court GRANTS the Plaintiff’s Motion for Class
Certification [Doc. 62].
SO ORDERED, this 13 day of June, 2017.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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