UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
October 5, 2012
CHARLES STROUCHLER, SARA CAMPOS, BY HER NEXT FRIEND ANA SIMARD, AND AUDREY ROKAW, BY HER NEXT FRIEND NINA PINSKY, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
NIRAV SHAH, M.D., AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, AND ELIZABETH BERLIN, AS EXECUTIVE DEPUTY COMMISSIONER OF THE NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, AND ROBERT DOAR, AS ADMINISTRATOR OF THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION/DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
On behalf of themselves and putative class, Charles Stroucher, Sara Campos, and Audrey Rokaw have sued the Commissioner of the New York State Department of Health, in his official capacity ("the State") and the Administrator of the New York City Human Resources Administration, in his official capacity ("the City"). Plaintiffs are elderly and disabled recipients of 24-hour continuous home care services ("split-shift care"), administered by the State through its agent the City using Medicaid dollars. They allege that defendants have improperly sought to terminate their split-shift care -- and the care of hundreds of other recipients -- in violation of federal and state law and the federal Constitution.
On September 4, 2012, after a hearing and extensive briefing by the
parties, I issued a preliminary injunction enjoining the City from
reducing or terminating split-shift care of any current recipient for
any one of five specific reasons, with limited exceptions.*fn1
My findings of fact and conclusions of law
from that opinion are fully incorporated into this opinion and
familiarity with those findings and conclusions is assumed.
Plaintiffs now move for certification of the following class: All New
York City Medicaid recipients of continuous personal care services who
are threatened with reduction or discontinuance of these services, or
whose care has been reduced or discontinued at any time since January
1, 2011, because the City Defendant has determined or will determine
that they do not meet the medical criteria for these
services.*fn2 The City raises two general objections to
this class definition. First, it argues, the proposed class definition
is too broad. There are two elements to this overbreadth. The first is
that the definition "covers individuals who have not been injured at
all . . . . Recipients whose services are lawfully reduced obviously
do not have a viable legal claim against any Defendant. In spite of this,
Plaintiffs' proposed class definition encompasses them."*fn3
The second element of the overbreadth relates to the hundreds
of recipients whom the City notified that their services would be
reduced, who then appealed the City's decision, and whose appeals were
successful. The City argues that these people have not suffered an
injury -- because most of them received "aid continuing" and retained
their services -- and therefore should not be part of the
class.*fn4 The City's proposed solution to the overly
broad definition is to include in the class "only those Medicaid
recipients whose split-shift services have in fact been reduced or
terminated for a reason that Plaintiffs allege is
unlawful."*fn5 The City next argues that if the Court
were to use this narrower class definition, the class would be
insufficiently numerous to satisfy the requirement of Federal Rule of
Civil Procedure 23(a).*fn6
In order to determine whether a preliminary injunction was appropriate, I was required to first examine the likelihood that a class would ultimately be certified. As I explained:
Given that there are hundreds of recipients of split-shift care, numerosity is satisfied. Although the facts of each class member's diagnoses and evaluations are unique to that individual, the following facts regarding the centralization of the program are likely sufficient to satisfy the commonality requirement. All putative class members are recipients of medical care administered by the City pursuant to Medicaid; their eligibility for the care is determined by a set of doctors working in one department; that department is run by one individual, Dr. Anita Aisner, who is personally supervising the review of "all split-shift cases"; Dr. Aisner told her staff, in writing, that "I have continued concerns for those [doctors] who have not forwarded any and/or very few [split-shift] reductions to me for review as instructed," and that "this is one indicator of your performance"; over ninety-seven percent of the decisions by the doctors in that department to reduce or terminate putative class members' benefits have been rejected as improper by ALJs. Given this set of facts, it is highly likely that plaintiffs will be able to establish commonality.
The three named plaintiffs were threatened with reductions for precisely the same common reasons (turning and positioning, some versus total assistance, and mistake) that the City relied upon in reducing the benefits of dozens of other putative class members. As a result, they likely satisfy the typicality prong. Plaintiffs are represented by experienced and highly qualified counsel and there is no reason to think that the named plaintiffs are inadequate representatives of the class; adequacy is therefore established. Finally, it is likely that plaintiffs claims satisfy Rule 23(b)(2), which requires that plaintiffs establish that defendants 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.*fn7
While nothing in the class certification briefing causes me to revisit these preliminary conclusions, defendants' concerns regarding the scope of the class definition have some merit. Therefore, I will grant certification of the following class:
All New York City Medicaid recipients of continuous personal care services who, at any time since January 1, 2011, have been threatened with unlawful reduction or discontinuance of these services or whose care has been unlawfully reduced or discontinued because the City Defendant has determined that they do not meet the medical criteria for these services.*fn8 The addition of the words "unlawful" and "unlawfully" fully addresses defendants' legitimate concerns regarding overbreadth because this class does not include people whose services were lawfully reduced or terminated. As I explained in the preliminary injunction order, the City's threat of unlawful reduction of services may well have caused irreparable harm even if, as a general matter, beneficiaries received aid during the pendency of their appeals.*fn9 Therefore, the City's proposed class of only people who have actually lost medical care is inappropriately narrow. Because the definition that I adopt includes the hundreds of people who were improperly threatened with reductions in care, it is sufficiently numerous to satisfy Rule 23(a).
The State argues that the named plaintiffs cannot represent the class because the class would include people who were terminated (or threatened with termination) on grounds different from those upon which the City sought to reduce named plaintiffs' services. For example, unlike named plaintiffs, some class members were terminated because "(1) their temporary medical condition that resulted in a need for such services has ended; . . . . (5) they are medically unstable; or (6) they are not self-directing."*fn10 The State's concerns do not make class certification inappropriate.
The Complaint alleges that the City "has begun a process of reevaluating every case in which there has been an authorization of split-shift personal care services in order to reduce and/or eliminate the City's 24-hour caseload."*fn11 It alleges that this process constitutes "a policy and practice of arbitrarily and irrationally reducing or discontinuing Plaintiffs' split-shift home care services."*fn12
The fact that ninety-seven percent of the City's decisions have been reversed by administrative law judges lends powerful support to these allegations. The reasons that the City gave for seeking to reduce the care of the named plaintiffs did not include all of the reasons that the City has given in the hundreds of other cases in which its decisions to reduce or terminate care have been reversed. But that does not make the named plaintiffs inadequate or atypical representatives.*fn13 They are "typical" because, like the class members generally, the City sought to reduce their care for unlawful reasons.
Rule 23 does not require that the facts relating to the named plaintiffs be identical to those relating to every class member. Typicality "requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability."*fn14
Therefore, the fact that the City sought to terminate some recipients based on the justification that they had become "medically unstable," does not mean that named plaintiffs cannot serve as class representatives for those recipients. The centralized actions of defendants, which I described in detail in Strouchler I, constitute a single "course of events." The inclusion of the words "unlawful" and "unlawfully" in the class definition ensures typicality and standing.*fn15
Defendants argue that defining the scope of the class based on defendants' actions may lead to some uncertainty as to the identification of class members, but as I recently explained in Floyd v. City of New York, precise ascertainability of class members is unnecessary in a Rule 23(b)(2) class action. Like in that case, "[i]t would be illogical to require precise ascertainability in a suit that seeks no class damages. The general demarcations of the proposed class are clear - those people [treated] unlawfully . . . - and that definition makes the class sufficiently ascertainable for the purpose of Rule 23(b)(2)."*fn16 The same holds true here: it is unnecessary to determine precisely whose benefits have been unlawfully terminated or reduced*fn17 or who has been unlawfully threatened with terminations or reductions because "final injunctive relief or corresponding declaratory relief [will be] appropriate respecting the class as a whole."*fn18
Rule 23 gives district courts the power to amend class definitions or decertify classes as necessary. All counsel in this case have displayed an admirable commitment to good communication and cooperation. As the litigation proceeds, I expect that they will continue to work together and with the Court to ensure that the rights of defendants and all class members are protected.
Because the class definition, as amended by the Court, meets the requirements of Rule 23, plaintiffs' motion for class certification is granted. The Clerk of the Court is directed to close this motion [Docket No. 46]. The parties are instructed to submit letters updating the Court on the status of the notice to potential class members by November 1, 2012.