United States District Court, D. Arizona
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; ...