DeBuono next relies on further directives issued in 1995, advising agencies of their obligation to provide written notice of reimbursement pursuant to the Seittelman decision. This argument, however, is pure pettifoggery. Defendant neglects to disclose that it rescinded these directives following appeal of Seittelman. Specifically, defendant instructed in a subsequent directive: "you are not required to provide applicants with the Seittelman notice, nor are you required to reimburse recipients for payments made to non-MA enrolled providers during the retroactive eligibility period." Exhibit F annexed to Nichols Affidavit.
Lastly, defendant argues that it published the Regulation at issue in the State Register. Publication of the Regulation does not, however, satisfy the requirement that applicants and recipients receive written notification of their rights under the Medicaid program. See 42 C.F.R. § 430.905 Nor does publication of the Regulation satisfy the requirement that agencies publish bulletins and pamphlets regarding eligibility information. Id. But publication of the Regulation in the State Register does satisfy due process, assuming applicants for benefits have a legitimate claim of entitlement protected by the Due Process Clause. See Perales v. Reno, 48 F.3d 1305, 1316 (2d Cir. 1995), cert. denied, 516 U.S. 1043, 116 S. Ct. 699, 133 L. Ed. 2d 657 (1996) (citing Lyng v. Payne, 476 U.S. 926, 90 L. Ed. 2d 921, 106 S. Ct. 2333, (1986)).
In short, the Court finds that defendants did not provide adequate notice, pursuant to their statutory duties under the federal Medicaid laws, of either the possibility of reimbursement during the retroactive period or that reimbursement of medical expenses incurred between the time of application and receipt of a Medical card is limited to medical services rendered by Medicaid-enrolled providers. However, plaintiffs' due process claim under the Constitution is denied.
F. Class Certification
Lastly, plaintiffs move to certify this as a class action pursuant to Federal Rule of Civil Procedure 23(c). Defendants, in turn, make several arguments in opposition. First, defendants assert that class certification is unnecessary because the Eleventh Amendment bars plaintiffs from seeking retroactive reimbursement for medical expenses incurred during the retroactive eligibility period. Second, defendants assert, in the alternative, that the numerosity requirement is not satisfied and that the proposed class parameters are overly broad.
Turning first to defendants' Eleventh Amendment argument, it is axiomatic that the Eleventh Amendment of the United States Constitution bars suits against a state in federal court unless the state consents to be sued, or Congress enacts legislation, pursuant to section 5 of the Fourteenth Amendment, overriding the state's Eleventh Amendment immunity.
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 1125, 134 L. Ed. 2d 252 (1996); Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). The "state" for purposes of the Eleventh Amendment generally includes state agencies and state officials sued in their official capacities, but not political subdivisions. See, e.g., Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Although the Eleventh Amendment by its terms does not bar federal courts from hearing suits brought against a state by its own citizens, the Supreme Court "has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." See, e.g., Edelman v. Jordan, 415 U.S. 651, 673, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1964) (citations omitted). "This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).
The Supreme Court, in Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), recognized a special exception to the rule that the Eleventh Amendment bars suits against state officials. The Ex Parte Young doctrine provides that a state official, acting in his official capacity, may be sued in a federal court for prospective relief based on conduct that violates federal law. Id.; Kentucky v. Graham, 473 U.S. 159, 167 n.14, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985); Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993). This holding is based on the fiction that a state cannot authorize its officers to act unconstitutionally. Id.
In the present case, the plaintiffs' class-action complaint seek a judgment: (1) declaring the Regulation void insofar as it limits reimbursement of medical expenses incurred during the retroactive period to expenses obtained from only Medicaid-enrolled provider; (2) enjoining the State from further applying the Regulation; (3) declaring the decisions of the defendants denying reimbursement under the Regulation without effect; and (4) directing the State defendant to reimburse plaintiffs and all other prospective members of the class for those expenses that were disallowed solely on the basis of the Regulation.
The basic question before the Court is thus whether plaintiffs' suit seeks relief in a manner that is barred by the Eleventh Amendment. Unfortunately, the Eleventh Amendment's dividing line between permissible prospective relief and impermissible retrospective relief "is far from that between day and night. It is more like examining a subject in that half-light called the gloaming, where to identify it accurately one needs to have the instincts of Argos, Odysseus' dog, who recognized his master dressed as a beggar upon his return home after 20 years' absence." New York City Health & Hosp. Corp. v. Perales, 50 F.3d 129, 131 (2d Cir. 1995).
Despite this half-light, several decisions provide guidance on the dichotomy between retrospective and prospective relief. In Edelman v. Jordan, 415 U.S. 651, 658, 39 L. Ed. 2d 662, 94 S. Ct. 1347, reh'g denied, 416 U.S. 1000, 40 L. Ed. 2d 777, 94 S. Ct. 2414 (1974), the Supreme Court examined application of the Eleventh Amendment to withheld entitlement benefits. The Court, quoting from the circuit's opinion, reasoned that:
it is one thing to tell the Commissioner of Social Services that he must comply with the federal standards for the future if the state is to have the benefit of federal funds in the programs he administers. It is quite another thing to order the Commissioner to use state funds to make reparation for the past. The latter would appear to us to fall afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force.