Pitts et al v. Louisiana Department of Health and Hospitals et al

Filing 58

RULING granting 30 Motion to Certify Class. In addition, the court adopts the class definition stated on pages five and six of this Ruling. Signed by Judge James J. Brady on 06/06/2011. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HELEN PITTS, ET AL
CIVIL ACTION
VERSUS
NO. 10-635-JJB-SR
BRUCE GREENSTEIN, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF THE
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS, ET AL

RULING ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
This matter is before the Court on Plaintiffs’ Motion (doc. 30) for Class
Certification. Defendants have filed an opposition (doc. 32) to which Plaintiffs
have filed a reply (doc. 33). There is no need for oral argument. This Court’s
jurisdiction exists pursuant to 28 U.S.C. § 1331.
Background
I. Facts
This case arises out of the State of Louisiana’s decision to lower the
maximum number of home-and-community-based health service (“HCBS”) hours
available to its disabled citizens.

Since 2003, Louisiana has offered HCBS to

disabled individuals through its long-term personal care services (“LT-PCS”)
program. The LT-PCS program provides disabled individuals with personal care
workers to assist them in performing basic tasks that they would otherwise be
unable to perform, such as personal care or household chores. Those who do
not qualify for LT-PCS, or seek additional or alternative services, may enter one
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of the State’s waiver programs. However, each program suffers from limited
slots, geographical or age limits, and/or waiting lists.
In September 2010, in order to address budgetary concerns, the State
passed Act 490, which lowered the maximum weekly LT-PCS service hours from
42 to 32 (doc. 36, ex. 1, pp. 11, 66-67). The cut applies not only to new LT-PCS
recipients but also to individuals currently receiving assistance when they
undergo their annual eligibility assessments.
II. Procedural History
On September 22, 2010, Plaintiffs filed suit against the Louisiana
Department of Health and Human Services (“LADHHS”) and its Secretary, Bruce
Greenstein, seeking declaratory and injunctive relief (doc. 1). Plaintiffs assert that
the reduction in LT-PCS hours unlawfully discriminates against disabled
individuals by depriving them of at-home assistance necessary to remain
“integrated” into the community in violation of the Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12132 (2010), and Section 504 of the
Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794(a) (2010). Plaintiffs
request that the Court order Defendants to return to the 42-hour weekly
maximum.
On December 20, 2010, Plaintiffs filed their Motion (doc. 30) for Class
Certification. Plaintiffs provided the following class definition:
Louisiana residents with disabilities who are recipients
or prospective recipients of Medicaid-funded services
through the LT-PCS program; who desire to continue to
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reside in the community instead of in a nursing facility;
who can reside in the community with appropriate
Medicaid-funded LT-PCS services; and who are at risk
of being forced to enter a nursing home because
Defendants plan to reduce the level of communitybased services.

(doc. 30, p. 1). Plaintiffs assert that the class, as defined, satisfies Federal Rule
of Procedure 23 for class certification.
On January 10, 2011, Defendants filed their opposition (doc. 32).
Defendants assert that the proposed class definition is overly broad. Defendants
also assert that the named plaintiffs’ claims and the defenses likely to be
asserted against them are not typical of the remaining class members. Finally,
Defendants assert that the named plaintiffs have conflicting interests with the
remaining class members and so will not fairly and adequately represent their
interests.
On January 25, 2011, Plaintiffs filed their reply (doc. 33). Plaintiffs assert
that the class is not overly broad. Plaintiffs also assert that the named plaintiffs’
claims and defenses are sufficiently typical to the remaining class members and
that the named plaintiffs will fairly and adequately represent the remaining class
members.
Discussion
I. The proposed class definition
Defendants assert that the proposed class is overly broad because it
includes individuals who (1) do not require more than 32 hours of weekly service;
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(2) require more than 32 hours of weekly service, but have access to waiver
programs, financial resources or other means to secure supplemental care; and
(3) require more than 42 hours of weekly service (doc. 32). Defendants assert
that the class should be defined to exclude these individuals and propose the
following class definition:
Louisiana residents with disabilities who have been
receiving Medicaid-funded services through the LT-PCS
program; who desire to reside in the community instead
of a nursing facility; who require more than 32 and less
than 42 hours of Medicaid-funded personal care
services per week in order to avoid entering a nursing
facility, and who do not have available (including
through family supports, shared living arrangements, or
enrollment in the ADHC waiver) other means of
receiving personal care services.
(doc. 32).
Plaintiffs concede that the class definition should not include individuals
who do not need more than 32 hours of weekly service (doc. 33). However,
Plaintiffs disagree that the class should exclude individuals who require more
than 42 hours per week of service. Plaintiffs also assert that the class should not
exclude individuals who have access to the necessary supplemental care.
The Court finds that the class should be defined to (1) exclude individuals
who do not require at least 32 hours of weekly service; (2) exclude individuals
who are capable of receiving the necessary supplemental care through
alternative sources; and (3) include individuals who require over 42 hours of care
per week. The Louisiana Administrative Code, states that “[t]he mission of [LT4

PCS] is to supplement the family and/or community supports that are available to
maintain the recipient in the community” and that “[it] is not intended to be a
substitute for available family and/or community supports.” La. Admin. Code tit.
50, § 34 12901 (2010) (emphasis added). Therefore, whether a recipient has
access to other means of care should be considered in defining the class,
keeping in mind that the State has necessarily determined that current LT-PCS
recipients lack access to supplemental care.
However, individuals requiring over 42 hours of care per week should be
included in the class.

The ADA’s and Section 504’s “integration mandate”

prohibits a state from increasing an individual’s risk of institutionalization if
reasonable accommodations are available. Olmstead v. L.C. ex rel Zimring, 527
U.S. 581, 597, 604, 607 (1999). Individuals requiring more than 42 hours of
weekly LT-PCS and who have managed to remain out of nursing facilities have
necessarily found access to supplemental care. If these individuals are suddenly
forced to make due with 10 less hours of weekly assistance, the supplemental
care they have secured may no longer be sufficient to avoid institutionalization.
As such they almost certainly face a risk of institutionalization due the reduction
and, in all likelihood, face a greater risk than those requiring between 32 and 42
hours of weekly service.

Therefore, the Court adopts the following class

definition:
Louisiana residents with disabilities who have been
receiving Medicaid-funded services through the LT-PCS
program; who desire to reside in the community instead
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of a nursing facility; who require more than 32 hours of
Medicaid-funded personal care services per week in
order to avoid entering a nursing facility, and who do not
have available (including through family supports,
shared living arrangements, or enrollment in the ADHC
waiver) other means of receiving personal care
services.
II. Federal Rule of Civil Procedure 23
Plaintiffs assert that they meet Federal Rule of Civil Procedure 23’s
requirements for class certification (doc. 30). Defendants assert that the named
plaintiffs’ claims and possible defenses thereto are not typical of the remaining
class members (doc. 32). Defendants also assert that the named plaintiffs will
not fairly or adequately represent the interests of the remaining class members
(doc. 32).
The class-action device was designed as a way to efficiently litigate cases
involving issues common to a large group of individuals and turning on questions
of law that apply to each member of the group. Gen. Tel. Co. of the S.W. v.
Falson, 457 U.S. 147, 155 (1982). In determining whether to certify a class, a
district court maintains substantial discretion. Id. To qualify for class relief under
the Federal Rules of Civil Procedure, the plaintiffs must satisfy each of Rule
23(a)’s requirements and at least one of Rule 23(b)’s requirements. Rule 23(a)
states:
One or more members of a class may sue or be sued
as representative parties on behalf of all only of (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
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representative parties are typical of the claims or
defenses of the class and (4) the representative parties
will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a).

Rule 23(b)(2) states that “[a] class action may be

maintained if . . . 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 declaratory relief is appropriate respecting the class as a whole.”
A. Numerosity
Plaintiff asserts that the “numerosity” requirement is met because it is
impracticable to join each of the individual members of the class.

Plaintiff

asserts that joinder is impracticable because of the sheer size of the class and
because the class may include future members. In addition, the class members
are geographically dispersed and many lack sufficient financial resources to bring
suit individually. Defendants do not contest that the proposed class is sufficiently
numerous.
There is no magic number for determining when a class is sufficiently
numerous for purposes of Federal Rule of Civil Procedure 23. See Mullen v.
Treasure Chest Casino, L.L.C., 186 F.3d 620, 624 (5th Cir. 1999) (stating that
classes with over one hundred members generally suffice).

The primary

consideration for courts is the practicality of joining the members of a proposed
class. Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981).
The practicality of joining members of a class is based on a number of factors
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including the sheer size of the class and whether the class will include future
members. Id. at 1039.
The Court finds that the proposed class is sufficiently numerous. Twentyeight percent of the 12,000 individuals currently receiving LT-PCS services
receive in excess of 32 hours per week (doc. 11, ex. 2, ¶ 37). It would be nearly
impossible to join the over 3,300 cases were they to be filed individually. In
addition, there are countless potential future members of the class who have not
yet qualified for LT-PCS who may wish to preserve their rights. Finally, many of
the proposed class members face severe financial hardship because of their
conditions. These class members lack the financial resources necessary to bring
suit individually in order to vindicate their rights. Therefore, Court finds that the
“numerosity” requirement is satisfied.
B. Commonality
Plaintiffs assert that there are common issues of law and fact as to each of
the class members, such as (1) whether Defendants violate the ADA or Section
504’s integration mandate by lowering the maximum weekly services hours from
42 to 32; or (2) whether Defendants violate the ADA or Section 504 by requiring
individuals to submit to a 90-day stay in a nursing facility to immediately qualify
for critical, supplemental services (doc. 30). Plaintiffs assert that differences in
each member’s condition or the specific services each member requires do not
defeat a finding of commonality.

Defendants do not contest that there are

questions of law and fact common to the putative class members (doc. 32).
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Federal Rule of Civil Procedure 23 requires that there be questions of law
and fact that are common to each of the proposed class members. See Mullen,
186 F.3d at 625 (stating that the commonality requirement is satisfied if there is
at least one issue, the resolution of which will affect a significant number of the
putative class members); Lightbourn v. Cnty. of El Paso, 118 F.3d 421, 426 (5th
Cir. 1997) (same).
The Court finds that there are questions of law and fact common to each of
the putative class members. The class includes all “Louisiana residents with
disabilities who have been receiving Medicaid-funded services through the LTPCS program” and “who require more than 32 hours of Medicaid-funded
personal care services per week in order to avoid entering a nursing facility.”
Any individual falling in this class is at risk of being forced to enter a nursing
home as a result of the reduction. The overriding question of law in the case is
whether this risk violates the ADA’s integration mandate. Moreover, whether the
State’s waiver programs are sufficient to pick-up slack created by the reduction is
a question of fact common and significant to all of the putative class members.
Because common questions of law and fact exist, the Court finds that the
“commonality” requirement is satisfied.
C. Typicality
Plaintiffs assert that the named plaintiffs’ claims are typical to the
remaining class members because (1) the proposed reduction in LT-PCS hours
exposes class members to an increased risk of institutionalization, and all class
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members would assert that doing so violates the ADA and Section 504’s
integration mandate; and (2) all the class members would assert that the State’s
waiver programs provide supplemental services that are insufficient to avoid this
risk; and (3) all class members would assert that, though an individual may
immediately receive sufficient supplemental services by submitting to a 90-day
stay in a nursing facility, this requirement violates the ADA and Section 504 by
requiring institutionalization (doc. 30).
Defendants assert that they anticipate advancing defenses to the named
plaintiffs’ claims that are atypical to the remaining members of the class (doc.
32). For instance, Defendant asserts that (1) unlike most other members of the
class, (1) Ainey was offered but declined placement in one of the State’s waiver
programs and therefore contributed to her risk of being institutionalized; (2) Pitts
never sought placement in a waiver program and therefore her being
institutionalized is not unjustified; (3) Hodges has been offered placement in a
waiver program and her claim is therefore moot.
In reply, Plaintiffs assert that the individual circumstances cited for each of
the named plaintiffs are either mischaracterized or irrelevant (doc. 33). 1
Federal rule of Civil Procedure 23(a) requires that the claims or defenses
of the representative parties are typical of the claims or defenses of the class.
That is, the named representatives must advance claims and defenses that are
1

For instance, Plaintiffs assert that Ainey declined placement in a waiver program in 2004 because she
was on better financial footing and that her doing so is irrelevant to whether she is currently at risk of
institutionalization. Plaintiffs also assert that Pitts and Hodges are still on waiting lists for the EDA waiver
program (doc. 33, ex. 8, ¶¶ 2-4).

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similar, though not identical, to the claims and defenses that the remaining class
members would advance were they to individually file parallel suits. Lightbourn,
118 F.3d at 426. According to district courts throughout the Fifth Circuit, the test
for typicality is not demanding. See, e.g., id. That said, if the facts surrounding
the named plaintiff are sufficiently different than other members of the class, a
district court may deny class certification. See, e.g., Warren v. Reserve Fund,
Inc., 728 F.2d 741, 747 (5th Cir. 1984). Courts may do so on the grounds that
representation of the class will suffer if the named plaintiff is preoccupied with a
defense which is applicable only to himself. J. H. Cohn & Co. v. Am. Appraisal
Assocs., Inc., 628 F.2d 994, 999 (7th Cir.1980).
The Court finds that the named plaintiffs’ claims and the defenses to which
they are subject are sufficiently typical to the claims and defenses applicable to
the remaining class members. First, whether and why the named Plaintiffs failed
to avail themselves of the State’s waiver programs is reasonably in dispute. It is
quite possible that Plaintiffs did not require additional services when receiving 42
hours of care per week, but now do as a result of the reduction.

More

importantly, the “typicality” test is “not demanding,” and the parties’ claims and
defenses must be merely “typical,” not “identical.” Lightbourn, 118 F.3d at 426.
Here, the named plaintiffs and remaining class members each claim that (1) the
reduction in service hours increases their risk of institutionalization; (2) the
waiting lists for the State’s waiver programs do not move fast enough to provide
the supplemental care they require to avoid institutionalization; and (3) they must
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submit to the very type institutionalization they seek to avoid in order to be
moved up the waiting lists. Because the named plaintiffs’ and remaining class
members’ claims are sufficiently similar, the Court finds that the “typicality”
requirement is satisfied.
D. Fair and adequate representation by the class representatives
Plaintiffs assert that the named plaintiffs will fairly and adequately
represent the remaining class members (doc. 30).

Plaintiffs assert that the

named plaintiffs and remaining class members share the common interest in
returning to the 42-hour maximum.

In addition, Plaintiffs assert that the named

plaintiffs will necessarily and vigorously protect the remaining members’ claims
because the two groups’ claims are so factually and legally similar.
Defendants assert that some of the named plaintiffs will not fairly and
adequately represent the remaining members of the class because (1) some
named plaintiffs may be placed into waiver programs sooner than they would
have been absent the new rules and may not wish to invalidate them; 2 (2) class
members may conflict as to whether the State should offer greater services,
thereby risking that the State will eventually eliminate the program altogether for
financial reasons or should offer lesser, more sustainable services (doc. 32).
In reply, Plaintiffs assert that the alleged conflicts are too speculative to
justify the Court in denying class certification (doc. 33)
2

Defendants assert that Act 490 not only lowered the maximum weekly hours of service from 42 to 32,
but also made certain waiver programs easier to enter. As such, class members who more easily entered
a waiver program as a result of the Act, and thus had their care adequately supplemented, may not
vigorously pursue having the Act invalidated.

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Federal Rule of Civil Procedure 23 requires that “the representative parties
will fairly and adequately protect the interests of the class.” The Supreme Court
of the United States has stated that “the adequacy-of-representation requirement
‘tends to merge’ with the commonality and typicality criteria of Rule 23(a), which
‘serve as guideposts for determining whether . . . maintenance of a class action
is economical and whether the named plaintiff’s claim and the class claims are so
interrelated that the interests of the class members will be fairly and adequately
protected in their absence. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626
n. 20 (1997). In determining the adequacy of representation, courts consider
whether and to what extent the class representatives have common and/or
antagonistic interests to the remaining members of the class, and only
differences which create conflicts of interests between the named plaintiffs and
the remaining class members render representation inadequate.

Id. at 614;

Mullen, 186 F.3d at 625-26. Finally, Courts may consider whether the named
plaintiffs have retained qualified counsel. Amchem Prods., 521 U.S. at 614.
The Court finds that the named plaintiffs will fairly and adequately protect
the interests of the remaining class members. Plaintiffs have only challenged the
cut in weekly LT-PCS service hours, not the State’s method of attending to the
waiting lists for its waiver programs.

Though some individuals may enter a

waiver program faster than they would have without the corresponding diminution
in weekly service, Defendants have failed to demonstrate that this has occurred
in fact. In addition, Defendants correctly state that some class members may
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prefer to receive lesser services than others if necessary to make the LT-PCS
program more sustainable. However, the suit makes clear the interest of the
class: to return to a 42-hour weekly maximum. Issues relating to the program’s
economic viability are pertinent only to whether such a return would constitute a
“reasonable accommodation” or a “fundamental alteration” to the proposed 32hour maximum.
In addition, the Court finds that the named plaintiffs have retained
sufficiently competent counsel. Lead counsel, Nell Hahn, is an employee of the
Advocacy Center, an organization that advocates for disabled individuals in
Louisiana. Hahn has practiced law for over 30 years and has participated in a
number of class action suits.

In addition, Co-Counsel Stephen F. Gold is a

nationally recognized expert in litigation involving the rights of disabled
individuals and has over 40 years of experience in that field. Therefore, the
Court finds that the named plaintiffs will fairly and adequately protect the interests
of the remaining class members.
E. Actions generally applicable to the class
Plaintiffs assert that the State’s action applies to the class generally
because each member will be subject to the 32-hour weekly maximum (doc. 30).
Defendants do not challenge Plaintiffs’ assertion (doc. 32).
Federal Rule of Procedure Rule 23(b)(2) states that “[a] class action may
be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final
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injunctive relief or corresponding declaratory relief is appropriate respecting the
class as a whole.” The term “generally,” as its used in Rule 23(b)(2), requires
only that the Defendants actions affect all similarly situated persons or apply to
the class as a whole. Johnson v. Am. Credit Co., 581 F.2d 526, 532 (5th Cir.
1978).
The Court finds that the State has acted on grounds that apply generally to
the class such that injunctive or declaratory relief would be appropriate. The 32hour weekly maximum plainly applies, not only to members of the class, but to all
Louisiana citizens seeking HCBS. As such, Plaintiffs’ suit satisfies Rule 23(b)(2).
Conclusion
Accordingly, the Court hereby GRANTS Plaintiffs’ Motion (doc. 30) for
Class Certification. In addition, the Court adopts the class definition stated on
pages five (5) and six (6) of this Ruling.
Signed in Baton Rouge, Louisiana this 6th day of June, 2011.

S

JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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