O.B. v. Norwood, 15 C 10463

O.B., et al., individuallyand on behalf of a class, Plaintiffs, v. FELICIA F. NORWOOD,in her official capacity as Directorof Healthcare and Family Services, Defendant.

15 C 10463

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 17, 2016

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Plaintiffs O.B., C.F., J.M., and S.M. (collectively, "Plaintiffs") bring this four-count action pursuant to 42 U.S.C. § 1983 and various provisions of Title XIX of the Social Security Act (the "Medicaid Act"), 42 U.S.C. §§ 1396 et seq. (Counts I and II); the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12101 et seq. (Count III); and the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. (Count IV). Plaintiffs allege that they are Medicaid-eligible children with disabling and chronic health conditions who are "eligible for Medicaid-funded in-home shift nursing services," Dkt. 1, ¶¶ 1-2, and that Defendant Felicia F. Norwood ("Norwood"), the Director of the Illinois Department of Healthcare and Family Services ("HFS"), "has failed to arrange for adequate in-home shift nursing services" for Plaintiffs and the class they seek to represent. Id. Now before the Court is Plaintiffs' Motion for Class Certification. See Dkt. 4. For the following reasons, that motion is granted.

DISCUSSION

The factual and legal bases for Plaintiffs' claims are set out more fully in the Court's March 21 Opinion denying Norwood's motion to dismiss and granting Plaintiffs' motion for preliminary injunction. See Dkt. 36. As explained therein (and as Norwood has acknowledged), the Medicaid Act "requires a state participating in the Medicaid program, as a condition of its participation, to include early and periodic screening, diagnostic, and treatment services ('EPSDT') as part of its State Medicaid plan." Id. at 2 (quoting Dkt. 22, at 5). It is also undisputed that each of the Plaintiffs here "has been approved for [EPSDT] in-home shift nursing services." Dkt. 24, at 1. Plaintiffs' Medicaid Act claims (Counts I and II), allege that Norwood violated the EPSDT provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(4)(B), and 1396a(a)(43)(C), and its requirement to provide such services with "reasonable promptness," 42 U.S.C. § 1396a(a)(8). Compl., Dkt. 1, ¶¶ 174-82.

Plaintiffs' ADA and Rehabilitation Act claims (Counts III and IV) in turn assert the "integration mandates" for those statutes, which require a public entity to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." Id. at ¶¶ 184, 193. Plaintiffs allege that Norwood's failure to arrange in-home shift nursing services for class members places those children "at a serious risk of institutionalization or hospitalization" in violation of these integration mandates. Id. at ¶¶ 183-98. Plaintiffs also allege that "they are being treated worse than other persons with disabilities" for whom the State pays higher rates for services. Id. at ¶¶ 13-15; Dkt. 32, at 14.Plaintiffs now seek to certify the following class for each of these claims:

All Medicaid-eligible children under the age of 21 in the State of Illinois who have been approved for in-home shift nursing services by the Defendant, but who are not receiving in-home shift nursing services at the level approved by the Defendant, including children who are enrolled in a Medicaid waiver program, such as the Medically Fragile Technology Dependent (MFTD) Waiver program, and children enrolled in the nonwaiver Medicaid program, commonly known as the Nursing and Personal Care Services (NPCS) program.

Norwood "opposes certification of any class." Dkt. 24, at 3. She argues that "the members are not ascertainable," and that Plaintiffs have failed to satisfy "the criteria set forth in Fed. R. Civ. P. 23(a)(1)-(4) as construed in General Telephone Co. of Southwest v. Falcon, 456 U.S. 147 (1982)," and "Fed. R. Civ. P. 23(b)(2) as construed in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541 (2011)." Id. The Court considers each argument, in turn.

I. Ascertainability

Norwood first contends that Plaintiffs' proposed class "lacks ascertainability." Dkt. 24, at 4. Seventh Circuit authority holds that this "implicit requirement under Rule 23" is satisfied where a class is "defined clearly" and membership is determined "by objective criteria." Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015). Norwood insists that Plaintiffs' proposed class is unidentifiable because "it is impossible to know what children who have been approved for in-home shift nursing services 'are not receiving in-home shift nursing services at the level approved by the Defendant," and "class membership" would thus require an "individual merits inquiry." Dkt. 24, at 4, 6-7. The Court rejected these same arguments when grantingPlaintiffs' preliminary injunction request, see Dkt. 36, at 20-21, and does so again here, as have other courts under similar circumstances.

Contrary to Norwood's argument, the proposed class is clearly defined and based on objective criteria; it includes "children under the age of 21 in the State of Illinois who have been approved for in-home shift nursing services by the Defendant, but who are not receiving in-home shift nursing services at the level approved by the Defendant." Nor does membership in this class require "an individual merits inquiry." As explained in the Court's previous Opinion, Norwood has already admitted (as she must) that any approval for EPSDT services requires, as a matter of state law, an HFS determination that the services are medically necessary. See Dkt. 36, at 2; Dkt. 22, at 1-2. Thus, any "'individualized determinations' required in this case have already been made—by definition, the class would consist only of children who are not receiving services that have been prescribed as 'medically necessary' and which the state must therefore provide under the EPSDT program." N.B. v. Hamos, 26 F. Supp. 3d 756, 774-75 (N.D. Ill. 2014); see also Lacy v. Butts, No. 1:13-cv-811-RLY-DML, 2015 WL 5775497, at *4 (N.D. Ind. Sept. 30, 2015) ("fact-specific inquiries" already resolved by "condition of class membership") (citing N.B. v. Hamos). The record also demonstrates (indeed, Norwood has also admitted) the existence of HFS records demonstrating the children approved for such services and the services provided to them. See Dkt. 22, at 5-6 (describing HFS records); Dkt. 28 (describing additional records available to HFS). Class membership requires merely consulting those records.

Tacitly conceding the availability of such information, Norwood nevertheless insists that the proposed class is still unidentifiable because the foregoing information "only tells one that the allotted hours have not been billed in full for any number of reasons," not "whether the shortened hours are attributable to Defendant's alleged acts or omissions, or whether the shortened hours result from the acts or omissions of third parties not before the Court, such as nurses or nursing agencies." Dkt. 24, at 5-6. Norwood thus complains that the proposed class definition "does not identify children" who were "actually harmed" by "Defendant's purported violations of federal law." Id. As explained in the Court's prior Opinion, however, the record indicates that Norwood does have access to information demonstrating "any reasons for unfilled shifts," see Dkt. 36, at 21 (citing Dkt. 28), and thus appears able to determine which class members were "actually harmed" by her actions (or inactions). But, in any case, contrary to Norwood's demand for "assurances" that the class consist solely of members harmed by her "purported violations of federal law," Dkt. 24, at 5, class membership does not, and should not, be "tied to Defendant's ultimate liability in the case"—lest it create an "impermissible fail-safe class," to which Norwood herself vigorously objects. Id. at 7.

The Seventh Circuit has explained that a "fail-safe" class—"one that is defined so that whether a person qualifies as a member depends on whether the person has a valid claim"—"is improper because a class member either wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment." Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). "The key toavoiding this problem is to define the class so that membership does not depend on the liability of the defendant." Mullins v. Direct Digital, LLC, 795 F.3d 654, 661 (7th Cir. 2015). As the Seventh Circuit has also explained, however, "[d]efining a class so as to avoid, on one hand, being over-inclusive and, on the other hand, the fail-safe problem is more of an art than a science. Either problem can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis." Messner, 669 F.3d at 825. The class definition proposed here strikes precisely this balance. On the one hand, the proposed class is definite and membership is based on objective criteria: non-receipt of EPSDT services at the level approved. On the other hand, membership does not depend upon Norwood's ultimate liability. While Plaintiffs claim that Norwood's agency (HFS) is obligated under the Medicaid statutes to provide approved EPSDT services (see Dkt. 1, ¶¶ 174-82; Dkt. 36, at n.8), and the non-receipt of such services at the level approved is a condition of class membership, such "shortened hours" (and thus class membership) do not ipso facto establish Norwood's liability, since (as even Norwood argues) "causation issues" exist "about whether the shortened hours are attributable to Defendants' alleged acts or omission" or "the acts or omissions of third parties." See Dkt. 24, at 6.

Finally, Norwood argues that the proposed class is still unascertainable because it "puts no time limits on membership" and thus "includes every...