Tinsley v. Faust

          ORDER

          ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE

         In 2016, Named Plaintiff B.K. (“Plaintiff” or “B.K.”), a minor in the custody of the Arizona foster care system, sought certification of this matter as a class action with subclasses under Rule 23(b)(2). This Court granted certification of the General Class, the Non-Kinship Subclass, and the Medicaid Subclass. The Ninth Circuit affirmed the certification of the General Class and the Non-Kinship Subclass, but vacated the certification of the Medicaid Subclass and remanded to this Court for further consideration of the commonality requirement under Rule 23(a). Plaintiff then filed a motion to certify the Medicaid Subclass under Rules 23(a) and 23(b)(2). (Doc. 430.) Defendants opposed. (Doc. 435.) For reasons that follow, the Court will grant the motion for certification of the Medicaid Subclass.

         BACKGROUND

         Plaintiff filed this civil rights class action on behalf of children in the custody of the Arizona foster care system, claiming the Arizona foster care system violates the U.S. Constitution and the Medicaid Act. (Doc. 37.) She alleges Arizona's uniform, statewide policies and practices in the foster care system exposed her and all other foster children to harm or unreasonable risk of harm while in the state's care, in violation of federal rights. (Id.) Of particular relevance here, she alleges the policies and practices of the Arizona Department of Child Safety (“DCS”) and the Arizona Health Care Cost Containment System (“AHCCCS”) subject foster children to a significant risk of denial of medically necessary health care. (Id.)

         In 2017, this Court originally granted Plaintiff's motion for class certification and certified three groups of children: (1) all children who are or will be in the legal custody of DCS due to a report or suspicion of abuse or neglect (the “General Class”); (2) all members in the General Class who are not placed in the care of an adult relative or person who has a significant relationship with the child (the “Non-Kinship Subclass”); and (3) all members of the General Class who are entitled to early and periodic screening, diagnostic, and treatment services under the federal Medicaid statute (the “Medicaid Subclass”). (Doc. 363.) Plaintiff asserted constitutional due process claims for the General Class and the Non-Kinship Subclass. Specifically, Plaintiff claimed that DCS violated substantive due process rights under the Fourteenth Amendment by failing to care adequately for the General Class, and by placing the Non-Kinship Subclass at substantial risk of harm. For the Medicaid Subclass, Plaintiff asserted only a Medicaid Act claim.

         Defendants appealed the class certification to the Ninth Circuit. (Docs. 365; 366.) On April 26, 2019, the Ninth Circuit issued its opinion affirming the certification of the General Class, holding this Court “properly grounded its commonality determination in the constitutionality of statewide policies and practices, ” which “are the ‘glue' that holds the class together.” B.K., by next friend Tinsley v. Snyder, 922 F.3d 957, 969 (9th Cir. 2019) (citing Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014)).^[1] The Ninth Circuit also affirmed the certification of the Non-Kinship Subclass, holding that “[a]s with the General Class, commonality, typicality, and uniformity of injunctive relief were satisfied by identifying [three statewide] practices because the district court will be able to determine whether [Defendants] have an unconstitutional practice of placing children in substantial risk of harm by evaluating these practices as a whole, rather than as to each individual class member.”^[2] Id. at 973.

         The Ninth Circuit reversed the certification of the Medicaid Subclass because certification of the Medicaid Subclass was “based on an apparent misconception of the legal framework for such a claim.” Id. at 975. The Ninth Circuit formulated two distinct legal theories that could justify certifying the Medicaid Subclass. First, “whether every child in the Medicaid Subclass is subjected to the same state-wide policy or practice that violates the Medicaid Act.” Id. at 976-77. Second, whether a state-wide “policy or practice could expose every child in the subclass to a significant risk of an imminent future Medicaid violation.” Id. at 977. The Ninth Circuit held “[u]nder this [second] theory, the plaintiffs . . . may challenge the Medicaid violation before it has taken place, so long as the requisite ‘significant risk' exists, so commonality may exist based on a finding that all class members are subjected to the same risk.” Id.

         Certification of the Medicaid Subclass was remanded to this Court for further proceedings based on the Ninth Circuit's proposed commonality standard, specifically on the question of whether “every subclass member was subject to an identical ‘significant risk' of a future Medicaid violation that would support injunctive relief.” Id. Judge Adelman dissented from the vacatur of the Medicaid Subclass certification order, finding this Court did not err in applying Rule 23 standards, and noting that, at the class certification stage, Plaintiff did not have to prove “that the defendants' policies are in fact caseloads; (6) failure to investigate reports of abuse timely; (7) failure to document “safety assessments”; (8) failure to close investigations timely; and (9) investigation deficient, ” but simply “that the question of whether the policies are deficient can be resolved on a class-wide basis.” Id. at 982 (Adelman, J., concurring in part and dissenting in part).

         On remand, Plaintiff sought leave to seek certification of the Medicaid Subclass “not because Defendants violated the Medicaid Act but because each class member is subject to a significant risk that Defendants will violate the Medicaid Act.” (Doc. 425 at 2.)^[3] The Court granted Plaintiff's request to file this motion. (Doc. 425.)

         ANALYSIS

         Plaintiff seeks to certify the Medicaid Subclass under Federal Rule of Civil Procedure 23. Under Rule 23(a), a party seeking certification of a subclass must satisfy four prerequisite requirements: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed.R.Civ.P. 23(a)(1)-(4). If the initial requirements are met, Plaintiff's proposed subclass must also satisfy the requirements of one of the subsections of Rule 23(b), “which defines three different types of classes.” See Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Here, Plaintiff seeks to certify the Medicaid Subclass pursuant to Rule 23(b)(2), which requires that “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.” See Fed. R. Civ. P. 23(b)(2).

         District courts must conduct a rigorous analysis of whether the prerequisites of Rule 23(a) are satisfied, an analysis which may “touch[] aspects of the merits.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). However, “[m]erits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013) (citing Wal-Mart, 564 U.S. at 351 n.6).

         Defendants oppose Plaintiff's motion for alleged failure to adequately demonstrate imminent Medicaid violations, and failure to meet the commonality, typicality, and Rule 23(b)(2) requirements. (Doc. 435 at 2.)

         The Court will address the requirements of the Medicaid statute and what constitutes a Medicaid violation. The Court will then turn to class certification and address each of Defendants' arguments in turn.

         I. The Medicaid Statute

         The parties disagree on what the Medicaid Act requires regarding early and periodic screening, diagnostic, and treatment services (“EPSDT”), and what would establish a violation. This fundamental question underlies resolution of all other issues in the class certification motion.

         A. The Relevant Medicaid Statutes

         EPSDT services are defined in the Medicaid Act. The statute defines the term “early and periodic screening, diagnostic, and treatment services” to mean five items and services: (1) screening services^[4]; (2) vision services; (3) dental services; (4) hearing services; and (5) “Such other necessary health care, diagnostic services, treatment, and other measures” as are necessary to “correct or ameliorate defects and physical and mental illnesses and conditions.”^[5] 42 U.S.C. § 1396d(r)(1)-(5). Providers of EPSDT services are instructed to read their duties broadly.^[6]

         The duties of the State of Arizona are laid out in Section 1396a, “State plans for medical assistance.” Any state's plan for medical assistance (i.e. Medicaid) must apply universally within the state, 42 U.S.C. § 1396a(a)(1), and must provide for: (A) informing eligible children of the availability of EPSDT services; (B) “providing or arranging for the provision” of EPSDT services; (C) arranging for corrective treatment if necessary; and (D) providing annual reports of how many children were screened, treated, and received services, as well as reporting whether the state met the requirements of 42 U.S.C. § 1396d(r).^[7] 42 U.S.C. § 1396a(a)(43).

         The Code of Federal Regulations also lays out relevant regulatory guidance, defining EPSDT as “(1) Screening and diagnostic services to determine physical or mental defects in beneficiaries under age 21; and (2) Health care, treatment, and other measures to correct or ameliorate any defects and chronic conditions discovered.” 42 C.F.R. § 440.40(b). State Medicaid plans must “provide that the Medicaid agency meets the requirements of §§ 441.56-441.62, with respect to EPSDT services.” 42 C.F.R. § 441.55. Those sections describe: (1) required activities (§ 441.56); (2) discretionary services (§ 441.57); (3) the periodicity schedule (§ 441.58); (4) treatment of requests for EPSDT screening services (§ 441.59); (5) continuing care (§ 441.60); (6) utilization of providers and coordination with related programs (§ 441.61); and (7) transportation and scheduling assistance (§ 441.62). Sections 441.56, the required activities, and 441.58, the periodicity schedule, are particularly important to the resolution of the class certification motion.

         The required activities include: (a) informing all EPSDT eligible individuals and their families about the program's details (§ 441.56(a))^[8]; (b) screening, or “periodic comprehensive child health assessments, ” which “must be provided in accordance with reasonable standards of medical and dental practice” (§ 441.56(b))^[9]; (c) diagnosis and treatment, including immunizations and treatment for vision, hearing, and dental problems which would not otherwise be covered by Medicaid if the screening indicates a need (§ 441.56(c))^[10]; (d) accountability (§ 441.56(d)); and (e) timeliness (§ 441.56(e)).^[11]

         The periodicity schedule must meet “reasonable standards of medical and dental practice” and specify “screening services applicable at each stage of the beneficiary's life.” 42 C.F.R. § 441.58. Arizona publishes its periodicity schedule for EPSDT services in the AHCCCS Medical Policy Manual (“AMPM”). For children ages 3-20, Arizona requires that every child receive an annual well-child physical examination, at which their blood pressure is taken, their social-emotional health is assessed, they are weighed and measured, and other procedures are conducted.^[12] AMPM Policy 430, Exhibit 430-1. The parties refer to this physical examination somewhat interchangeably as “well-child exams, ” “Well-Child Visits, ” “Well-Care Visits, ” and “EPSDT Exams.” (Docs. 430 at 10, 435 at 9, 392-4 at 19.) In addition, every child must see a dentist every six months, and receive immunizations and vision and hearing screenings if indicated for their age. AMPM Policy 430, Exhibit 430-1. The AMPM concludes “These are minimum requirements. If at any time other procedures, tests, etc. are medically indicated, the physician is obligated to perform them. If a child comes under care for the first time at any point on the schedule, or if any items are not accomplished at the suggested age, the schedule should be brought up to date at the earliest possible time.”^[13] Id. (emphasis in original).

         The required services and periodicity schedule are best illustrated by way of example-for instance, a 5-year-old child in the continuous custody of the Arizona foster care system must receive 1 well-child physical exam, 1 vision exam, 1 hearing exam, and 2 dental exams over the course of the year, for a total of five exams between their fifth and sixth birthdays. Id.; Doc. 392-4 at 19. A 7-year-old child must receive 1 well-child physical exam and 2 dental exams, for a total of three exams between their seventh and eighth birthdays. AMPM Policy 430, Exhibit 430-1; Doc. 392-4 at 19.

         Arizona has legislated that DCS “shall provide comprehensive medical and dental care . . . for each child who is: (1) In a voluntary placement . . . [or] (2) In the custody of the department in an out-of-home placement.” A.R.S. § 8-512(A). Comprehensive medical and dental care “consists of those benefits provided by the [AHCCCS] benefit as prescribed in title 36, chapter 29, article 1 [et seq.] and as set forth in the approved medicaid state plan.” A.R.S. § 8-512(B).

         The benefits provided by AHCCCS include “the following medically necessary health and medical services: . . . Early and periodic health screening and diagnostic services as required by section 1905(r) of title XIX of the social security act for members who are under twenty-one years of age.” A.R.S. § 36-2907(A)(7).

         In sum, Defendants must provide EPSDT services, as that term is defined in 42 U.S.C. § 1396d(r), to all children in the custody of the Arizona foster care system who are eligible. To be clear, every eligible child must receive a well-child physical examination each year, a dental examination every six months, and immunizations, visual, and hearing screening based on their age. Evidence that any eligible child did not receive EPSDT services is evidence of a Medicaid violation.

         B. The Parties' Positions

         Plaintiff's position is that the word “provide” in the relevant statutes means Defendants are responsible for ensuring that each and every Medicaid-eligible child in the custody of the Arizona foster care system actually receives EPSDT services, and moreover receives those services with reasonable promptness. (Doc. 430 at 7, citing the EPSDT Guide at 32.^[14]) This position is summarized as: “In short, the EPSDT provisions of Medicaid require that eligible children ‘get the health care they need when they need it - the right care to the right child at the right time in the right setting,' which is ‘the goal of the EPSDT provision.'” (Id., citing the EPSDT Guide at 1.) Plaintiff provided evidence, through expert reports, that “many foster children have not received mandated physical and dental EPSDT examinations, ” and alleges that the causes of the problem are Defendants' state-wide policies and practices. (Id. at 9.)

         Defendants' position is that Arizona is not required to ensure that the children receive EPSDT services; rather, Arizona must ensure only that EPSDT services are available. (Doc. 435 at 7, 13). Furthermore, Defendants state that if EPSDT services result in a recommendation for treatment, such treatment is timely if it occurs within six months. (Id. at 9.) Defendants summarize their position as: “Neither the statute, the rules, CMS, nor CMS's EPSDT Guide tasks the states with guaranteeing that children receive the services that Defendants make available.” (Id. at 13.) Defendants attempt to controvert Plaintiff's expert reports by arguing the experts do not explicitly cite the Medicaid standards. (Id. at 7.)

         C. Violations of the Medicaid Act

         In interpreting the EPSDT requirements of the Medicaid Act, the Court is guided by Katie A., ex rel. Ludin v. Los Angeles County, 481 F.3d 1150 (9th Cir. 2007) and the canons of statutory construction. “A primary canon of statutory interpretation is that the plain language of a statute should be enforced according to its terms, in light of its context.” Wadler v. Bio-Rad Labs., Inc., 916 F.3d 1176, 1186 (9th Cir. 2019) (quoting ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203, 1210 (9th Cir. 2015)).

         States that have chosen to provide Medicaid to their citizens “have an obligation to cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes, ” and “an obligation to see that the services are provided when screening reveals that they are medically necessary for a child.” Katie A., 482 F.3d at 1158 (citing 42 U.S.C. §§ 1396a(a)(43)(C), 1396d(a)). In a highly analogous case in the District of Massachusetts addressing the provision of EPSDT services, the court made clear that under Medicaid, children are owed greater benefits than adults. Rosie D. v. Romney, 410 F.Supp.2d 18, 25 (D. Mass. 2006) (“As broad as the overall Medicaid umbrella is generally, the initiatives aimed at children are far more expansive.”). This obligation is active, not passive, and may require the state to be proactive in arranging for services, since “the ultimate responsibility to ensure treatment remains with the state.” Katie A., 482 F.3d at 1158-59 (collecting cases); see Rosie D., 410 F.Supp.2d at 27 (“[T]he [Medicaid] Act requires a proactive approach.”). “[S]tates do have broader Medicaid obligations to children than to other populations of Medicaid recipients.” Alvarez v. Betlach, No. CV 09-558 TUC AWT, 2012 WL 10861543, at *6 (D. Ariz. May 21, 2012), aff'd in part, vacated in part, 572 Fed.Appx. 519 (9th Cir. 2014).

         A closer look at previous Ninth Circuit caselaw establishes Defendants' interpretation of their own obligations is incorrect. The district court in Katie A. held that state agencies were required to “provide services to class members, rather than simply make such services available.” Katie A., 481 F.3d at 1162 (emphasis added). On appeal, the Ninth Circuit affirmed this interpretation of the Medicaid Act, holding that “[r]equiring the State actually to provide EPSDT services that have been found to be medically necessary is consistent with the language of the Medicaid Act, which requires that each state plan ‘provide for . . . arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services.'” Id. (quoting 42 U.S.C. § 1396a(a)(43)) (emphasis added); see also Rosie D., 410 F.Supp.2d at 26 (“Congress' firm intent to ensure that Medicaid-eligible children actually receive services is powerfully underlined by provisions in the statute that place explicit duties on states to” inform children of the availability of EPSDT services, “provide or arrange for” services every time they are requested, and “arrange for whatever corrective treatments are discovered to be needed.”) (citing 42 U.S.C. § 1396a(a)(43; 42 C.F.R. §§ 441.56(a)(1), 441.61, 441.62) (emphasis added).

         The Ninth Circuit's approach in Katie A. comports with the plain language of the statute and regulations, which requires the provision of EPSDT services, not the availability of services. See 42 U.S.C. § 1396a(a)(43) (state Medicaid plans “must provide for-. . . such screening services”); 42 C.F.R. § 441.56(b)(1) (AHCCCS “must provide . . . screening”); 42 C.F.R. § 441.56(c) (AHCCCS “must provide” dental, vision, and hearing services, and immunizations); 42 C.F.R. § 441.59 (AHCCCS “must provide the screening services”); and A.R.S. § 8-512(A) (DCS “shall provide comprehensive medical and dental care”).

         The State Medicaid Manual confirms this interpretation, describing the EPSDT program as “A Comprehensive Child Health Program” which “consists of two, mutually supportive, operational components: assuring the availability and accessibility of required health care resources and helping Medicaid recipients and their parents or guardians effectively use them.” State Medicaid Manual § 5010(B).^[15] The position taken by Defendants addresses only the first component.

         Not only must the state ensure that EPSDT services are provided in the first place, it “also must ensure that the EPSDT services provided are reasonably effective.” Katie A., 481 F.3d at 1159. And as the Ninth Circuit held in this case, “[t]he most natural reading of the Act and our precedents is that a violation occurs when EPSDT services have failed to be provided in a timely manner.” Tinsley, 922 F.3d at 976.

         Defendants disagree that they are responsible for ensuring that children receive care, asserting generally that “there are many reasons, beyond Defendants' control” why children in the custody of Arizona's foster care system do not receive timely medical care according to AHCCCS's own periodicity schedule of screenings and treatments, including that “some children do not need services, ” “[n]ot everyone wants or requests help that is available, ” and many children “simply fail to show for their medical appointments.” (Doc. 435 at 11.)

         The Court does not find these arguments persuasive. The AHCCCS periodicity schedule requires an annual well-child physical examination, as well as a dental referral every six months, and concludes “These are minimum requirements.” AMPM Policy 430, Exhibit 430-1 (emphasis in original). Having complied with the Medicaid statute to determine the appropriate care intervals which “meet reasonable standards of medical and dental practice, ” 42 U.S.C. § 1396d(r)(1), Defendants cannot now baldly assert that “some children do not need services.” (Doc. 435 at 11.) To the contrary, every child needs medical services at least once per year. An assertion that Medicaid-eligible children do not require any medical services is directly contrary to Congress' intent and the plain language of the Medicaid Act.

         Nor does the burden lie on a child to request help. The Medicaid Act requires that state proactively “identify obstacles to the effective conveyance of information” and mitigate the negative impact of such obstacles; if Arizona's “scheme for informing children of their rights is ineffective . . . [Arizona] is not in compliance with the law.” Rosie D., 410 F.Supp.2d at 26-27. Thus, Arizona may not simply shrug indifferently when children do not request help, but instead must first affirmatively determine what obstacles lie between the children and the “help that is available, ” and then mitigate those obstacles. (Doc. 435 at 11.)

         Nor is it the child's fault if a child fails to show up for their medical appointment. The Court reminds Defendants once again that the members of the Medicaid Subclass are children.^[16] The responsibility for ensuring that a minor child attends a medical appointment rests not with the child, but with the guardian of the child. Furthermore, Defendants are required to inform children in the Medicaid Subclass “That necessary transportation and scheduling assistance described in § 441.62 of this subpart is available to the EPSDT eligible individual upon request” and Defendants must provide such assistance. 42 C.F.R. § 441.56(a)(2)(iv). Defendants cite studies which attribute medical appointment no-shows to a lack of transportation, but if a foster family fails to bring a child to their appointment because of a lack of transportation, the ultimate responsibility lies with Defendants for not informing the family that transportation assistance is available and then providing such necessary assistance.^[17] (Doc. 435 at 11 n.8.) The Court notes with concern that Defendant's comparison between foster children missing pediatrician appointments and patients at substance use disorder outpatient clinics missing addiction treatment appointments is particularly inapposite. (Id.)

         Defendants assert that “Plaintiffs' premise that Defendants violate the law whenever a child misses a service is false.” (Doc. 435 at 12.) But it is Defendants' assertion that is false. The Court holds that the Medicaid Act requires Defendants to proactively ensure that each child eligible for EPSDT services actually receives such services in a timely manner. It is not sufficient for Defendants merely to make EPSDT services available. Therefore, a violation of the Medicaid Act occurs when a child in the Medicaid Subclass does not receive EPSDT services at all, or does not receive them in a timely manner. The timeliness of an EPSDT service is determined by whether the child received the service according to the schedule set forth in the AHCCCS Medicaid Policy Manual.^[18] Consistent with 42 C.F.R. § 441.56(e), a child must begin treatment no later than six months after the screening that established the need for the treatment.

         II. Class Certification

         The question remaining for the purpose of class certification is whether there is a common question of law or fact such that every member of the Medicaid Subclass is subject to an identical significant risk of an imminent future Medicaid violation that would support injunctive relief; ...