BARRY M. KURREN, Magistrate Judge.
Before the Court is Plaintiffs' Motion for Class Certification (Doc. 78). The Court heard this Motion on January 26, 2016. After careful consideration of the Motion, the supporting and opposing memoranda, and the arguments of counsel, the Court finds and recommends that this Motion be DENIED.
As discussed below in more detail below, critical issues in this case remain unclear: whether Defendant Department of Human Services (DHS) has a policy regarding applied behavioral analysis (ABA) treatment, whether DHS used that policy to deny ABA treatment or reimbursement for such treatment, and whether Plaintiff J.E. or other proposed class members were denied treatment. These issues overlap with the certification inquiry and are relevant to the Court's analysis of class certification. Given these uncertainties, the Court finds that Plaintiffs do not establish that class certification is appropriate at this time and recommends that class certification be denied as premature.
Plaintiff J.E. is six years old, qualifies for Medicaid, and has been diagnosed with autism. (Second Amended Complaint (SAC) ¶¶ 66, 68.) Several professionals have recommended ABA treatment for J.E.'s condition. (
Plaintiffs J.E. and HDRC bring this lawsuit on behalf of the following proposed class:
(Motion at 1, SAC ¶¶ 76-77.) Plaintiffs claim that DHS has a blanket policy, whereby it does not provide Medicaid coverage for ABA treatment regardless of medical necessity and, thus, fails to comply with the Medicaid Act. (SAC ¶ 1.)
Plaintiffs move for certification of its proposed class. A plaintiff moving to certify a class has the burden of showing that the proposed class satisfies the requirements of Federal Rules of Civil Procedure Rule 23.
Fed. R. Civ. P. 23(a). These requirements are known as numerosity, commonality, typicality, and adequacy of representation.
The court must conduct a "rigorous analysis" to determine whether the prerequisites of Rule 23 have been met.
As to numerosity, Plaintiffs allege that "the estimated number of eligible Medicaid recipients with autism under the age of eighteen is 1,624." (Reply at 6 n.5.) Plaintiffs concede, however, that this number is "based on percentages and general data" and does "not identify recipients who were prescribed or recommended ABA." In order to determine which of these minors were prescribed ABA, which is a requirement of class membership, Plaintiffs acknowledge that each minor's medical records would need to be reviewed. The Court finds that, at this time, Plaintiffs have not yet "prove[n] that there are
"Commonality exists where class members' situations share a common issue of law or fact, and are sufficiently parallel to insure a vigorous and full presentation of all claims for relief."
In this case, based on the evidence before the Court, several critical issues as to commonality and typicality remain unclear. First, it is unclear whether DHS in fact has a policy regarding ABA treatment and what that policy is. Plaintiffs allege that DHS has a "blanket policy not to cover the cost of ABA treatment" but later concedes that DHS reimbursed J.E.'s provider for his ABA treatment. (Motion at 5.) In an effort to establish DHS's policy, Plaintiffs state that J.E.'s mother was told that ABA treatment would not be covered, and they point to testimony before the state legislature regarding ABA treatment. Although this Court is not opining on whether a policy in fact exists, the evidence before the Court suggests that this issue is unsettled.
Additionally, it is also unclear whether J.E. or any proposed class members were ever denied ABA treatment. According to Plaintiffs, J.E.'s mother "learned that ABA treatment was not covered by Medicaid," but his application was later "accepted by DHS for J.E. to receive Medicaid-covered ABA treatment from a private provider." (Motion at 11.) Further, as noted above, it is unclear whether any members of the proposed class were denied ABA treatment or reimbursement. Plaintiffs point to no evidence showing that any minors were ever denied treatment or reimbursement.
With respect to adequacy of representation, "[r]equiring the claims of the class representatives to be adequately representative of the class as a whole ensures that the interests of absent class members are adequately protected."
Given the unsettled issues in this case, the Court finds that class certification is premature at this time. Plaintiffs are unable to satisfy the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a).
For the foregoing reasons, the Court finds and recommends that Plaintiffs' Motion for Class Certification (Doc. 78) be DENIED without prejudice.
IT IS SO ORDERED.