1 United States District Court Southern District of Iowa
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Case 4:17-cv-00208-RGE-CFB Document 3 Filed 06/13/17 Page 1 of 18 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION MELINDA FISHER, SHANNON G. by and ) through her guardian, BRANDON R. by and) through his guardian, MARTY M. by and ) through his guardian, MISTY M. by and ) through her guardian, and NEAL SIEGEL, ) Case No._________________ ) on behalf of themselves and all ) others similarly situated, ) ) Plaintiffs, ) BRIEF IN SUPPORT OF ) PLAINTIFFS’ MOTION FOR v. ) CLASS CERTIFICATION ) KIM REYNOLDS, in her official ) capacity as Governor of Iowa; ) CHARLES PALMER, in his official ) capacity as Director of the Iowa ) Department of Human Services, ) ) Defendants. ) 1 Case 4:17-cv-00208-RGE-CFB Document 3 Filed 06/13/17 Page 2 of 18 TABLE OF CONTENTS I. BACKGROUND..........................................................................................................3 II. LEGAL STANDARDS FOR CLASS CERTIFICATION.......................................................................................................6 A. THE PROPOSED CLASS MEETS THE RULE 23(a) NUMEROSITY REQUIREMENT: Joinder is impracticable because the Class is so numerous the Plaintiffs’ circumstances make Class Action the most appropriate vehicle to address Plaintiff Class’ grievances..........................................................................................6 B. THE CASE RAISES COMMON QUESTIONS OF LAW AND FACT: The Plaintiffs have made a prima facie showing that common questions, evidence, and answers drive the resolution of this litigation on a class-wide basis............................................................................................................................8 C. THE PLAINTIFFS MEET THE RULE 23(a) TYPICALITY REQUIREMENT: The Claims of the Plaintiffs are typical of the Class because they share the same type of HCBS waiver issues regarding service and budget limits and lack of due process......................................................................................................................12 D. THE CASE MEETS THE RULE 23(a) ADEQUATE REPRESENTATION REQUIREMENT: The class representatives and their counsel will fairly and adequately represent the interests of the class...........................................................................................................................12 III. THE PROPOSED CLASS ACTION ALSO SATISFIES F.R.CIV. P. 23(b)(2) BECAUSE THE DEFENDANTS HAVE ACTED OR REFUSED TO ACT ON GROUNDS GENERALLY APPLICABLE TO THE CLASS, MAKING FINAL INJUNCTIVE OR DECLARATORY RELIEF APPROPRIATE..........................................................................................................15 IV. CLASS COUNSEL SHOULD BE APPOINTED PURSUANT TO FED. R. CIV. P. 23(g).............................................................................................................................16 V. NOTICE TO EVERY CLASS MEMBER SHOULD NOT BE REQUIRED AT THIS STAGE.........................................................................................................................16 VI. CONCLUSION............................................................................................................17 2 Case 4:17-cv-00208-RGE-CFB Document 3 Filed 06/13/17 Page 3 of 18 I. BACKGROUND The Plaintiffs, who are seeking class certification, are six adults with significant disabilities who want to continue to live in their homes in Iowa where they have full access to community life. They are able to live in integrated community settings because they are entitled to receive home and community-based service (HCBS) waivers through Iowa’s Medicaid program. The Plaintiffs’ ability to be integrated in their community is threatened by the Defendants’ reductions, denials, or terminations of the waiver services required for their health and safety. The Defendants have failed to provide the due process required under the U.S. and Iowa Constitutions and the Medicaid Act to protect their rights to these necessary services. If the Plaintiffs did not have the HCBS services on which they rely, they would be living in segregated hospitals, nursing facilities, or intermediate care facilities, where they would only interact with other people with disabilities and staff. Approximately 18,000 Iowans currently live in integrated community settings because they are able to get the services they need under the Intellectual Disability, Brain Injury or Health and Disability HCBS Waivers. The type and services each waiver participant requires are determined through assessments, the recommendations of their treatment teams, and individualized service plans. Traditionally, HCBS waiver services are managed and provided through a service provider agency. However, Iowa also offers a participant directed model under which the person has decision-making authority and takes more responsibility for managing their services and supports. Each of the named Plaintiffs and all HCBS waiver participants, by the nature of their eligibility for the waiver, has a recognized disability that makes them a qualified person with a disability within the meaning of the Americans with Disabilities Act and Section 504 of the 3 Case 4:17-cv-00208-RGE-CFB Document 3 Filed 06/13/17 Page 4 of 18 Rehabilitation Act. They are all substantially limited in major life activities such as eating, personal hygiene, mobility, and thinking. On April 1, 2016, Iowa privatized almost its entire Medicaid program, including its HCBS waiver program by contracting with three national for-profit managed care organizations (MCOs). Prior to the transition to managed care, many HCBS waiver recipients, including the Plaintiffs, were granted modifications to Department of Human Services (DHS) policies and practices, including, but not limited to, using a variance process, also referred to as an “exception to policy” to obtain services that were outside normal policies, but determined to be necessary by the service planning process. Upon transition to managed care, the DHS/MCO contracts maintained the exception to policy process, which provides a reasonable modification to policies and procedures under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and their implementing regulations. The Defendants and their agent MCOs have illegally terminated, reduced, denied, or not provided with reasonable promptness the hours, budgets, and staffing levels of the Plaintiffs and others similarly situated and refused to modify their policies and practices, as required by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. As a result, Plaintiffs have lost access to the waiver services they need to maintain their community integration and continue living safely in the community. In addition, the Defendants have failed to provide adequate notice of such terminations or reductions as required by the due process provisions in the U.S. and Iowa Constitutions and the Medicaid Act and implementing regulations. The Plaintiffs are asking this court to certify the following class so that there can be class- wide resolution of the issues facing the Plaintiffs and other adult home and community-based service recipients similarly situated: 4 Case 4:17-cv-00208-RGE-CFB Document 3 Filed 06/13/17 Page 5 of 18 The Class consists of Iowans over the age of 21 who (i) were enrolled in the Intellectual Disability, Brain Injury, or Health and Disability Home and Community-Based Services (HCBS) Waivers on or after April 1, 2016; (ii) have received HCBS Waivers since April 1, 2016; and (iii) have had, or will have their hours, budgets, or staffing levels for HCBS waivers directly or indirectly terminated, reduced, denied or not provided with reasonable promptness by the Defendants or their agents after April 1, 2016, based on the Defendants and their agents refusal to modify their policies and practices. This court can objectively determine who is in the class and bind the Defendants by a class wide ruling, Teflon Prod. Liab. Liti., 254 F.R.D. 354, 361 (S.D. Iowa 2008) because DHS and its agents keep extensive records on all current HCBS recipients. The records include, but are not limited to, documentation regarding: the type of waiver an individual is using; the budgets, services and supports which have been authorized since the person has been on the waiver; requests for services; requests for modifications to policies and practices, including exceptions to policy, the outcome of those requests, and the scope of any modifications or exceptions that have been granted; notices of reductions, terminations, and denials of services; and appeal records. This information will be readily ascertainable through the discovery process upon class certification. A full, detailed description of the facts describing the Plaintiffs’ lives, the HCBS services that have enabled them to live in integrated community settings prior to managed care and the illegal acts of the Defendants is set forth in the Plaintiffs’ Class Action Complaint, which is filed simultaneously with this Motion for Class Certification. 5 Case 4:17-cv-00208-RGE-CFB Document 3 Filed 06/13/17 Page 6 of 18 II. LEGAL STANDARDS FOR CLASS CERTIFICATION The party moving for class certification must satisfy all of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure, as well as at least one of the subdivisions of Rule 23(b). Rule 23(a) has four distinct criteria: (1) the class must be so numerous that joinder of all members is impracticable; (2) the members