BY AND THROUGH LEWIS v. CRITTENDEN (2019)

ORDER

This matter is before the Court on Plaintiffs’ Motion for Class Certification [Doc. 103] and Plaintiffs’ Motion for Leave to File Exhibit in Support of Motion for Class Certification [Doc. 114]. Plaintiffs’ Motion seeks class certification pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, with the ultimate goal of obtaining injunctive and declaratory relief on behalf of the class.

This case centers on Plaintiffs’ allegation that Defendants failed to properly redetermine the Plaintiffs’ and putative class members’ Medicaid eligibility after Plaintiffs were terminated from Supplemental Security Income (SSI) support provided through the Social Security Administration. (Doc. 61, Second Amended Complaint at ¶19.) Plaintiffs were initially eligible for Medicaid as a result of receiving SSI. Plaintiffs contend that when they lost SSI, Defendants were required to consider whether Plaintiffs were otherwise eligible for Medicaid under all legal and program routes to eligibility pursuant to 42 U.S.C. § 1396a(a)(8) and its implementing regulations. Defendants admit that there are some eligibility avenues that are not considered during their review. Plaintiffs further allege that Defendants failed to systematically provide adequate notice to putative class members (via their parents or guardians) that Medicaid support would be terminated.

I. Background

a. Overview

The named Plaintiffs in this case are all minor children who suffer from life-threatening medical conditions. Plaintiffs are dependent on their caregivers for the provision of their daily needs. They each receive daily medications and therapies to maintain their health. J.M. and J.B. also require daily skilled nursing care. Defendant Robyn Crittenden is the Commissioner of the Georgia Department of Human Services (DHS). Through this role, she is responsible for the administration and operation of DHS. Defendant Frank Berry is the Commissioner of the Georgia Department of Community Health (DCH). DCH is the single state agency responsible for administering Georgia's Medicaid Program.

Plaintiffs J.M., N.W., and J.B. all received SSI. (Defs.’ Answer, Doc. 62 ¶¶ 33, 52, 61.) As recipients of SSI, Plaintiffs were all eligible for Medicaid coverage. (Defs.’ Answer, Doc. 62 ¶¶ 33, 52, 61.) Each Plaintiff received Medicaid coverage which helped their families cover their medical expenses. Plaintiffs all had their SSI benefits terminated. Before terminating Plaintiffs from Medicaid, Defendants conducted an ex parte review. Plaintiffs allege that Defendants’ ex parte review is flawed because the review did not consider, as required, all of the possible programs or funding options that may render Plaintiffs eligible for Medicaid. Plaintiffs also claim that the notice they received from Defendants informing them of the termination of their Medicaid coverage is inadequate.

b. Plaintiffs’ Allegations

At a general level, Plaintiffs in this case complain of three major problems: First, Plaintiffs claim that Georgia fails to properly redetermine Medicaid eligibility after the State “receives information about a change in a [Medicaid] beneficiary's circumstances that may affect eligibility.” 42 C.F.R. § 435.916(d). According to Plaintiffs, “[w]hen conducting the redetermination of eligibility, the state Medicaid agency must consider all bases of eligibility prior to making a determination of ineligibility.” (See Second Am. Compl., Doc. 61 ¶ 134) (citing 42 C.F.R. § 435.916(f)) (emphasis supplied). In so doing, they also “must determine potential eligibility for other insurance affordability programs ․” Id., at 435.916(f)(2).

Second, Plaintiffs allege that that Defendants fail to provide constitutionally sufficient notice informing Plaintiffs of the termination of their Medicaid benefits. Specifically, Plaintiffs claim that the notice that Defendants provided failed to inform Plaintiffs of the specific reasons Defendants determined they were ineligible for Medicaid, to inform them of the regulations that support the determination of ineligibility, or to provide a clear explanation of the circumstances under which Medicaid is continued if a hearing is requested. (See Second Am. Compl., Doc. 61 ¶ 40, 57, 65.)

Third, relatedly, Plaintiffs allege that their right or ability to obtain a fair hearing is impacted by the false or incomplete information in the Notices provided by Defendants. (Id. ¶ 139.) Plaintiffs also claim that Defendants were required to maintain the Plaintiffs Medicaid eligibility pending a redetermination of eligibility or timely and adequate notice of any actions or decisions. (See Second Am. Compl., Doc. 61 ¶¶ 135, 142; 42 C.F.R. 435.930(b).)

Thus, at this stage of the litigation, Plaintiffs argue that “[t]he implementation of an appropriate process of redetermining Medicaid eligibility and providing adequate written notice of redetermination decisions to terminate Medicaid eligibility are issues that can be resolved by and addressed through a single declaratory judgment and injunctive relief.” (Mot., Doc. 103-1 at 31.)¹

c. Medicaid Act and Regulations

Congress established Medicaid, a jointly financed federal-state cooperative program, to help states provide medical treatment to their needy citizens. See 42 U.S.C. § 1396 et seq.; Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1232 (11th Cir. 2011). While “[a] state's participation in the Medicaid program is voluntary, [ ] once a state opts to participate it must comply with federal statutory and regulatory requirements.” Id. (citing Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)). Georgia participates in Medicaid. (Answer, Doc. 62 ¶ 17.) “The Medicaid Act, as supplemented by regulations promulgated by the Department of Health and Human Services (HHS), ‘prescribes substantive requirements governing the scope of each state's program.’ ” Moore, 637 F.3d at 1232 (citing Curtis v. Taylor, 625 F.2d 645, 649 (5th Cir. 1980)).

Georgia's Medicaid plan must “provide that all individuals wishing to make [an] application for medical assistance under the plan shall have [the] opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). DCH, as the state agency responsibility for administering Georgia's Medicaid program, is required to promptly redetermine eligibility when it receives information about a change in a beneficiary's circumstances that may affect eligibility. 42 C.F.R. § 435.916(d)(1); § 435.1003.

In the event that DCH cannot renew an individual's eligibility, DCH is required to provide the individual with: “(A) A renewal form containing information ․ available to [DCH] that is needed to renew eligibility[;] (B) At least 30 days from the date of the renewal form to respond and provide any necessary information ․; (C) Notice of the [DCH's] decision concerning the renewal of eligibility ․” 42 C.F.R. § 435.916(a)(3)(i).

However, and significantly, “[p]rior to making a determination of ineligibility, [DCH] must consider all bases of eligibility consistent with [42 C.F.R. 435.911].” 42 C.F.R. § 435.916(f)(1). “For individuals determined ineligible for Medicaid, the agency must determine potential eligibility for other insurance affordability programs and comply with the procedures set forth in § 435.1200(e) of this part.” 42 C.F.R. § 435.916(f)(2).

Federal regulations further specify that when DCH is renewing eligibility in accordance with § 435.916 for certain specified individuals, DCH “must collect such additional information as may be needed consistent with § 435.907(c), to determine whether such individual is eligible for Medicaid on any basis other than the applicable modified adjusted gross income standard, and furnish Medicaid on such basis.”² 42 C.F.R. § 435.915(c)(2). Further “DCH is required to “continue to furnish Medicaid regularly to all eligible individuals until they are found ineligible.” 42 C.F.R. § 435.930(b).

Federal regulations require state Medicaid agencies to provide beneficiaries with written notice informing the applicant of any decision that affects an “individual's claim for eligibility, benefits or services ․” 42 C.F.R. § 431.206(c)(2); see also id. § 431.206(b). This notice informs the recipient of: (a) the action the agency intends to take and the effective date of such action; (b) a clear statement of the specific reasons supporting the intended action; (c) an explanation of an individual's right to request a hearing; and (d) an explanation of the circumstances under which Medicaid is continued if a hearing is requested. 42 C.F.R. § 431.210.

d. Redetermination of Medicaid Eligibility in Georgia

In Georgia, an individual is eligible for Medicaid if she meets the eligibility criteria of a class of assistance. A class of assistance simply refers to a type of Medicaid. (Greene Dep., Doc. 103-2 at 32:23-33:1.) Each class of assistance has its own eligibility criteria. (Id. at 33:2-4.) In Georgia, there are two groups of Medicaid Classes of Assistance: (1) Age, Blind, and Disabled Medicaid and (2) Family Medicaid. (Mot., Doc. 103-1 at 4.) Age, Blind, and Disabled Medicaid serves people who are 65 years of age or older, blind, or disabled. (DHS Medicaid Manual, Section 2205, Doc. 103-4 at 1.) Family Medicaid “provides Medicaid benefits for low income families and individuals who are not receiving SSI and may or may not be receiving TANF.”³ (DHS Medicaid Manual, Section 2160 at 1.) The DHS Medicaid Manual's Table of Contents lists twenty-two Age, Blind, and Disabled Medicaid Classes of Assistance and ten Family Medicaid Classes of Assistance. (See DHS Medicaid Manual, Table of Contents, Doc. 103-3 at 2-4.)

In Georgia, if an individual receives Supplemental Security Income (SSI), she is automatically eligible for SSI-Medicaid. (Greene Dep., Doc. 103-2 at 40:14-25; 44:4-9; DHS Medicaid Manual, Section 2111.) SSI is a monetary benefit administrated by the Social Security Administration. (DHS Medicaid Manual, Section 2111.) To be eligible for SSI, an individual must be determined to be disabled and must be under the income limit of $750 per month. (Greene Dep., Doc. 103-2 at 41:12-14.) A child's eligibility is based on the income of the child's parents. (Id. at 41:14-18.)

If a person has been determined ineligible for SSI due to exceeding the income threshold, the person is presumed to still qualify as disabled for one year following termination from SSI for the purposes of eligibility under the Age, Blind and Disabled Medicaid classes of assistance. (See Greene Dep., Doc. 103-2 at 60:19-61:15; 98:3-14.)

The Parties generally agree about how Georgia processes an individual receiving SSI Medicaid whose SSI benefits are subsequently terminated. Simply stated, when the Social Security Administration notifies DCH that an individual is no longer eligible for SSI, DCH's automated program then conducts an ex parte review to determine whether that individual is otherwise eligible for Medicaid. The point of conflict between the parties is that the automated program does not perform a review of all the potential ways an individual may be eligible; instead, the program only reviews the individual's Medicaid eligibility “using information provided by [the Social Security Administration].” (Resp, Doc. 109 at 4) (citing Greene Dep., Doc. 103-2 at 57:24-60:8.)

Less simply stated, DCH has an “information technology system called the Georgia Medicaid Management Information System (GAMMIS).” (Mot., Doc. 103-1 at 7; Greene Dep., Doc. 103-2 at 44:11-14.) When the Social Security Administration terminates an individual's SSI, the Social Security Administration transmits this information to GAMMIS. (Greene Dep., Doc. 103-2 at 52:1-12; 59:17-60:8.) GAMMIS then performs an “ex parte determination ․ to see if [that] individual will be eligible for a different type of Medicaid.” (Id. at 59:17-60:8.) The GAMMIS system uses information provided by the Social Security Administration. (Resp., Doc. 109 at 4) (citing Greene Dep., Doc. 103-2 at 57:24-60:8.) During this ex parte review, GAMMIS reviews an individual's eligibility under some, but not all, Medicaid classes of assistance.⁴ GAMMIS does not review an individual's eligibility for Medicaid under the following Classes of Assistance: Communicate Care Services Program, New Options Waiver and Comprehensive Supports Waiver Program, TEFRA/Katie Beckett, and the Intendent Care Waiver Program. (Greene Dep., Doc. 103-2 at 64-71.)

When the GAMMIS ex parte review finds an individual to be eligible for Medicaid, the individual's name and information is then placed on a report to be reviewed by a case worker with the Division of Family and Children Services (DFCS). (Greene Dep., Doc. 103-2 at 74:7-21; 75:16-24). DFCS caseworkers then confirm whether GAMMIS's determination of eligibility is accurate and make a formal eligibility determination. (Id. at 74:7-21; 75:16-24). But, there is no corresponding review of GAMMIS's determination of Medicaid ineligibility. (Id. at 76:8-10.) For those individuals who are determined by GAMMIS to not be eligible under the Medicaid classes of assistance reviewed by GAMMIS, GAMMIS generates and sends termination notices informing these individuals that their Medicaid will be terminated as of a certain specified month.⁵ (Id. at 76:1-7.)

Defendants argue that “because Georgia is considered a ‘1634 state’ it does not determine Medicaid eligibility for those for whom the Social Security Administration [ ] has decided meet[s] the eligibility standards to receive [SSI].” (Resp., Doc. 109 at 3) (citing 42 U.S.C. § 1396a(f)). “Instead,” Defendants contend, “when [the Social Security Administration] determines that an individual is eligible for SSI and the individual is receiving SSI payments, such individual is also automatically eligible for SSI Medicaid.” (Id.) Defendants contend that if the Social Security Administration determines that an individual is no longer eligible for SSI, then DCH has no authority and must terminate that individual from SSI Medicaid. (Id.)

e. Notice of Redetermination of Medicaid Eligibility

DCH's GAMMIS system uses a template letter to inform individuals terminated from SSI that their Medicaid will be terminated. (Greene Dep., Doc. 103-2 at 88:1-5; 90:13-20.) Plaintiffs attach this template, titled “SSI Termination Letter Report Layout”, to their Motion. (See SSI Termination Letter Report Layout, Doc. 103-7.)

GAMMIS is programmed to issue this letter on its own. (Greene Dep., Doc. 103-2 at 88:10-14.) The GAMMIS system chooses from one of eight possible “CHECKBOX” options for the reason SSI was terminated. “CHECKBOX #3” states:

You are not eligible for these months because your Supplemental Security Income (SSI) payments through the Social Security Administration are terminated for these months. Medicaid and SSI go together. Also, we determined that you are not eligible for continued Medicaid in any other way.

(Doc. 103-7.) Plaintiffs correctly point out that “[t]he template form does not provide any information or indicate ․ any information to be added regarding which Medicaid classes of assistance were reviewed for eligibility or the specific reasons that an individual is ineligible for the specific classes of assistance that were reviewed.” (Mot., Doc. 103-1 at 11); (see SSI Termination Letter Report Layout, Doc. 103-7.) The letters from Defendants informing Plaintiffs that they would be losing Medicaid coverage are all identical, except for the dates and the addresses. The letter states that because Plaintiffs are no longer receiving SSI, their Medicaid benefits will be terminated and notes an effective date of termination. (See Pls.’ Exs. G, H, I, Docs. 103-8, 103-9, 103-10.)

f. Plaintiffs

i. J.M.

Plaintiff J.M. is a nine-year-old boy. (Second Am. Compl., Doc. 61 ¶ 5.) J.M. suffered “a catastrophic brain injury at birth, which resulted in several serious and chronic conditions, including spastic quadriplegia, cerebral palsy, significant intellectual disability, encephalopathy, dysphagia, and seizure disorder.” (Id.) “J.M. cannot speak, cannot move himself, cannot control his bladder or bowel movements, and requires a feeding tube.” (Id.) “He is at high risk of seizures, aspiration, respiratory distress, malnutrition, constipation, and skin breakdown.” (Id.) “He is dependent upon his caregivers for all daily needs.” (Id.)

J.M. alleges that he “did not receive a written notice of his termination of eligibility from the Georgia Medicaid Program.” (Second Am. Compl., Doc. 61 ¶ 38.) As a result, J.M. did not know that his Medicaid had terminated until the charges for his doctors’ visits and medications were declined. (Second Am. Compl., Doc. 61 ¶ 39.) As a result of losing Medicaid coverage, J.M. incurred over $3,000 in healthcare expenses in January 2018 for “medically necessary doctor visits and medications that were formerly covered by his Medicaid benefits.” (Second Am. Compl., Doc. 61 ¶ 42.) Defendants dispute that J.M. incurred additional expenses as, according to Defendants, these were paid by J.M.’s special needs trust. (Resp, Doc. 109 at 15) (citing Lewis Dep., Doc. 123 at 25:2-26:25, 30:22-31:13.)

During discovery, Defendants produced a letter dated October 11, 2017, which Defendants claim was mailed to J.M. (Second Am. Compl., Doc. 61 ¶ 40; J.M. Letter, Doc. 9-2.) This letter matches the form letter described above. It informs J.M. that he is not eligible for Medicaid from “January 2018, ongoing.” (J.M. Letter, Doc. 9-2.) The letter then states:

You are not eligible for these months because your Supplemental Security Income (SSI) payments through the Social Security Administration are terminated for these months. Medicaid and SSI go together. Also, we determined that you are not eligible for continued Medicaid in any other way.

(J.M. Letter, Doc. 9-2.) The letter also informs J.M. that he may be eligible for “Medically Needy Medicaid” because of medical debts, but that this Medicaid usually only lasts for a short period of time and “does not work well with those needing monthly prescription drugs.” (J.M. Letter, Doc. 9-2.) The letter then informs J.M. that he may appeal this decision and provides details for how to request a hearing. (J.M. Letter, Doc. 9-2) (stating “[i]f you think that we are wrong to make you NOT eligible for Medicaid, you may ask for a hearing of your case.”). Plaintiffs allege that this notice “fails to inform [J.M.] of the specific reasons Defendants’ determined he was ineligible for Medicaid, to inform him of the regulations that support the determination of ineligibility, or to provide a clear explanation of the circumstances under which Medicaid is continued if a hearing is requested.” (Second Am. Compl., Doc. 61 ¶ 40.)

J.M. originally brought this case on only his behalf. (Compl., Doc. 1.) He filed his Complaint contemporaneously with a Motion for a Temporary Restraining Order and Preliminary Injunction. (Doc. 2.) Defendants initially agreed to reinstate J.M.’s Medicaid retroactive to the date it was terminated. (Doc. 4.) But, when his request for 96 hours of skilled nursing per week was denied by Defendants, J.M. again moved this Court for a preliminary injunction requiring Defendants to approve his request. (Mot. for Preliminary Injunction, Doc. 17; Order, Doc. 21.) This Court granted J.M.’s Motion for Preliminary Injunction and “temporarily prohibit[ed] Defendants from denying skilled nursing services to Plaintiff for 18 hours per non-school day and 12 hours per school day, as these services are medically necessary to correct or ameliorate Plaintiff's conditions based on the current evidence before the Court.” (Order, Doc. 48 at 19.)

At some point after this litigation commenced, J.M.’s mother applied for Medicaid through the Katie Beckett Medicaid class of assistance to secure necessary health benefits for her son. This benefit application was approved. The Katie Beckett Medicaid program is one of the programs that DCH does not review or consider prior to transmission of its Medicaid benefit termination notice letter and termination of benefits. (See Greene Dep., Doc. 103-2 at 64:2-71:14.)

ii. N.W.

Plaintiff N.W. is a nine-year-old boy, who suffers from significant and complex conditions including cerebral palsy, a seizure disorder, intellectual disability, visual impairment, gastroesophageal reflux disease, and obstructive sleep apnea. (Second Am. Compl., Doc. 61 ¶ 8-9.) He is at high risk of seizures, aspiration, malnutrition, constipation, and skin breakdown. (Id. ¶ 9.) He is dependent on caregivers for all his daily needs. (Id. ¶ 9.) N.W. was eligible for Medicaid because he received SSI. (Id. ¶ 53.) N.W.’s SSI benefits were terminated on January 1, 2018. (Id. ¶ 55.) N.W. received a written notice informing him that his Medicaid would be terminated. (Id. ¶ 57; N.W. Letter, Ex. H, Doc. 103-9.) This written notice has exactly the same substantive information as the written notice J.M. received, which is described above. As a result of losing Medicaid, N.W. alleges that he incurred healthcare expenses that were previously covered by Medicaid. (Second Am. Compl., Doc. 61 ¶ 59.)

After N.W.’s Medicaid was terminated, his mother applied for Medicaid through the Katie Beckett Medicaid class of assistance to secure necessary health benefits for her son. (Williams Dep., Doc. 111-2 at 21-23:13.) This benefit application was approved.

iii. J.B.

Plaintiff J.B. is an eight-year-old girl. (Second Am. Compl., Doc. 61 ¶ 10.) She has Koolen de Vries syndrome, which is a chromosome disorder. (Id. ¶ 11.) This syndrome has “resulted in many serious and complex conditions including hydrocephalus, significant intellectual disability, seizure disorder, gastroesophageal reflux disease, obstructive sleep apnea, severe scoliosis, and visual impairment.” (Id. ¶ 11.) J.B. also received both SSI and SSI Medicaid. (Id. ¶ 60, 61.) Plaintiffs alleges that J.B.’s SSI benefits were terminated on June 1, 2018. (Id. ¶ 60.) In Plaintiffs’ Reply, J.B. provides evidence that some months she does not receive SSI and in turn, Medicaid, because her mother's earnings fluctuate month-to-month based on how many weeks fall within the month. (Barker Dep., Doc. 111-3 at 17:7-20:18).

J.B. received two Notice letters informing her that her Medicaid would be terminated. (Second Am. Compl., Doc. 61 ¶ 65; J.B. Mar. 26, 2018 Letter, Ex. I, Doc. 103-10.) The first, dated March 26, 2018, is a picture of the letter and is missing some information. The text that is visible reveals that the letter conforms to the written notices J.M. and N.W. received, which are described above. The letter informs J.B. that she will not be eligible for Medicaid from “June, 2019, ongoing.” (J.B. March 26, 2018 Letter, Ex. I, Doc. 103-10.) J.B. filed another Notice of Termination letter after the briefing on this Motion was closed.⁶ (See Motion for Leave to File Exhibit in Support of Motion for Class Cert., Doc. 114). This letter, dated September 24, 2018, informs J.B. that she will not be eligible for Medicaid from “December 2018, ongoing.” (J.B. Sept. 24, 2018 Letter, Doc. 114-2.) As a result of losing Medicaid, J.B. incurred healthcare expenses that were previously covered by Medicaid. (Second Am. Compl., Doc. 61 ¶ 67.) Plaintiff J.B.’s SSI payments were eventually reinstated (Mot., Doc 103-1 at 12) as well as her Medicaid.⁷

II. Legal Standard for Class Certification

Federal Rule of Civil Procedure 23 governs class certification. It provides that one or more members of a class of litigants may sue on behalf of the class's members only if:

1) the class is so numerous that joinder of all members is impracticable;

2) there are questions of law or fact common to the class;

3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). The rule's four requirements are “commonly referred to as ‘numerosity, commonality, typicality, and adequacy of representation.’ ” Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1188 (11th Cir. 2003) (citation omitted). District courts are obliged to undergo a “rigorous analysis” to determine whether the prerequisites of Rule 23(a) have been satisfied. Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (citations omitted). The party seeking class certification “must establish that the proposed class is adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (internal quotation marks and citations omitted).

Parties seeking class certification must also demonstrate that the putative class fits into one of the types of class actions listed in Rule 23(b). Wal-Mart v. Dukes, 564 U.S. 338, 345, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Plaintiffs argue they meet the requirements of Rule 23(b)(2). Under Rule 23(b)(2), certification is appropriate if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

III. Discussion

a. Proposed Class

Plaintiffs propose that the Court certify two classes in this case: a main class and a subclass. Plaintiffs seek injunctive and declaratory relief on behalf of the class, pursuant to Federal Rule of Civil Procedure 23(b)(2), as they contend that the Defendants have acted or refused to act in administration of the relevant Medicaid program provisions here on a common basis generally applicable to the class. Plaintiffs’ proposed classes are:

1. The Main Class: “All Georgia Medicaid recipients who are or have been eligible under the Supplemental Security Income Medicaid class of assistance (“SSI Medicaid”) since July 27, 2016, and who have been, or will in the future be, terminated from SSI and subject to Georgia Department of Community Health's policies and practices of redetermination of Medicaid eligibility.” (Mot., Doc. 103-1 at 22.)

2. The Subclass: “All individuals to whom the Georgia Department of Community Health sent a “Notice of Medicaid Status” letter since July 26, 2016, notifying them that they are not eligible [for] Medicaid because their Supplemental Security Income (SSI) payments through the Social Security Administration are denied or terminated.” (Mot., Doc. 103-1 at 23.)

Defendants object to class certification, as discussed more specifically below.

b. Rule 23(a)

i. Ascertainability

“An identifiable class exists if its members can be ascertained by reference to objective criteria.” Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App'x 782, 787–88 (11th Cir. 2014) (internal citations omitted). The analysis of the objective criteria must be administratively feasible. For criteria to be “administratively feasible,” “identifying class members [must be] a manageable process that does not require much, if any, individual inquiry.” Bussey, 562 F. App'x at 787–88 (citing Newberg on Class Actions § 3.3 p. 164 (5th ed. 2012)). “Where a plaintiff satisfies this threshold issue, the district court then conducts a rigorous analysis of the Rule 23 prerequisites.” Bussey, 562 F. App'x at 787–88 (citing Vega v. T–Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009) (citation and internal quotation marks omitted)).

Here, Plaintiffs argue that their proposed classes are adequately defined and clearly ascertainable. Their main class is ascertainable because “[a]ll SSI Medicaid recipients in Georgia terminated from SSI since July 27, 2016, have been subjected to Defendants’ redetermination of Medicaid eligibility policies and practices.” (Mot. Doc. 103-1 at 23.) Plaintiffs also argue that “identifying individuals eligible for SSI Medicaid is administratively feasible through review of DCH data maintained on GAMMIS.” (Id.) With regard to Plaintiffs’ subclass “[a]ny members of the class found ineligible for Medicaid upon Defendants’ ex parte review through GAMMIS would have received a ‘Notice of Medicaid Status’ letter notifying them they were not eligible for Medicaid because the SSI payments were denied or terminated.” (Id.)

The Court proposed a tweaked class definition. The Court was concerned that Plaintiffs’ proposed main class definition was vague because it could have included Georgia Medicaid recipients who were eligible under the SSI-Medicaid class of assistance but applied for and received Medicaid under another class of assistance before being terminated from SSI.⁸ Thus, the Court revised the main class definition to avoid potential confusion and sought the Parties’ comments on the Court's revised definition. (Order, Doc. 122.) The revised main class definition is as follows:

All Georgia Medicaid recipients who are or have been eligible under the Supplemental Security Income Medicaid class of assistance (“SSI-Medicaid”) since July 27, 2016, and who have been, or will in the future be, terminated from SSI and SSI-Medicaid after being subjected to Georgia Department of Community Health's policies and practices of redetermination of Medicaid eligibility.

(Id.)

Defendants objected on numerous grounds, several of which could have been raised in Defendants’ original Response to Plaintiffs’ Motion for Class Certification, but were not. First, Defendants argued (subsequent to the main briefing) that the class should be limited to children, as all class representatives are children. (Resp. to Ord., Doc. 125 at 2–3.) The Court will address this argument in the section of this Order on typicality, infra.

Second, Defendants raised, also for the first time in the supplemental response, an objection to including individuals who will be terminated from SSI-Medicaid in the future. (Resp. to Ord., Doc. 125 at 3.) Defendants are correct that at the exact moment that the Court certifies this class the identity of individuals who will in the future be terminated from Medicaid is unknown.

However, this is immaterial. Defendants are required to frequently redetermine Medicaid eligibility for the individuals who receive Medicaid in Georgia. There will necessarily be individuals who it determines are ineligible and these individuals will be terminated from SSI-Medicaid in the future. These individuals will simply be included in the class when they are terminated. Defendants cannot seriously argue they will have difficulty ascertaining these individuals for the purpose of compliance with any injunctive or declaratory relief, as their own actions with respect to these individuals will render them part of the class. Alternatively, assuming Plaintiffs prevail on their claims, Defendants could adopt adequate procedures to remedy the policies and practices challenged here, which would hopefully eliminate the need to add future class members. Courts frequently certify classes that include individuals who will be affected by a practice in the future. See M.H. v. Berry, No: 1:15-cv-1427-TWT, 2017 WL 2570262 at *5–6, *8 (N.D. Ga. June 14, 2017) (Thrash, J.) (certifying a class of “all Medicaid eligible individuals under the age of 21 who are now, or will in the future be, participants in the GAPP program and are subject to the policies and practices of Defendant”) (emphasis supplied); Belton v. Ga., No: 1:10-cv-0583-RWS, 2011 WL 925565 (N.D. Ga. 2011) (Story, J.) (certifying the following class: “All deaf Georgia citizens who are, or will be in need of public mental health services, but who cannot receive therapeutic benefit from said services due to the Georgia Department of Behavioral Health and Developmental Disabilities’ lack of accommodations for the Deaf.”) (emphasis supplied).

Subsequently, the Court in an Order dated August 7, 2019, requested the parties clarify their positions on several matters,⁹ including the Parties’ disagreement regarding Plaintiff's proposed class opening date (Plaintiffs’ July 27, 2016 date versus Defendants’ October 1, 2017 date). Plaintiff contends that the July 27, 2016 is based on a two-year statute of limitations, borrowed from O.C.G.A. § 9-3-33, measured from the date the Amended Complaint was filed. (Resp. to Ord., Doc. 129 at 2.) This date is puzzling for a number of reasons. First, it is not clear why Plaintiffs assume the Second Amended Complaint does not meet the requirements of Rule 15(c) for relation back to the original complaint. See Fed. R. Civ. P. 15(c)(1)(B), (C). Second, even assuming that the Amended Complaint does not relate back to the original complaint under Rule 15(c), it is not clear why Plaintiff relies on the date the Court granted leave to amend rather than the date leave to amend was sought. Third, while statutes of limitations are often used as the opening date of a Rule 23(b)(3) class action, the Court is not clear that this principle applies to Rule 23(b)(2) class actions to the extent the relief sought is solely a prospective change in policy.

The Court is also perplexed by Defendants’ proposed class opening date of October 1, 2017, based on the date that Plaintiff J.M. was sent his notice letter. Plaintiffs correctly points out the date has no bearing on the class members and is also arbitrary (just as Plaintiffs’ selection of the above date may be). In any case, this objection to Plaintiff's proposed date was not raised in Defendants’ original response brief. Accordingly, the Court will consider the objection waived, and will temporarily adopt the July 27, 2016 date as uncontested. However, the Court adopts this date as a placeholder. The Court intends to address the opening date and other issues at subsequent conference with the Parties and may amend this Order at that time. Fed. R. Civ. P. 23(c)(1)(C).

Having determined that the Court's revised definition satisfies the threshold ascertainability requirement, the Court will next evaluate whether the following class definitions meets the requirements of Fed. R. Civ. P. 23:

1. The Main Class: “All Georgia Medicaid recipients who are or have been eligible under the Supplemental Security Income Medicaid class of assistance (“SSI Medicaid”) since July 27, 2016, and who have been, or will in the future be, terminated from SSI and SSI-Medicaid after being subjected to Georgia Department of Community Health's policies and practices of redetermination of Medicaid eligibility.” (Order, Doc. 122.)

2. The Subclass: “Individuals to whom the Georgia Department of Community Health sent a “Notice of Medicaid Status” letter since July 26, 2016, notifying them that they are not eligible [for] Medicaid because their Supplemental Security Income (SSI) payments through the Social Security Administration are denied or terminated.” (Mot., Doc. 103-1 at 23.)

ii. Numerosity

To satisfy the numerosity requirement, the class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “Practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986). “[W]hile there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with numbers varying according to other factors.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (citations and internal punctuation omitted). The Eleventh Circuit has recognized that “where the numerosity question is a close one, a balance should be struck in favor of a finding of numerosity, since the court has the option to decertify pursuant to Rule 23(c)(1).” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983). But, “a plaintiff still bears the burden of making some showing, affording the district court the means to make a supported factual finding, that the class actually certified meets the numerosity requirement.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009).

Plaintiffs contend that there are “potentially thousands of class members” in their proposed main class. (Mot., Doc. 103-1 at 24.) According to Plaintiffs, Defendant DCH disclosed that between 2016 and 2018 thousands of individuals were terminated from SSI Medicaid. (Id.) In 2016, 27,944 individuals were terminated from SSI Medicaid. (Id.) In 2017, 28,741 individuals were terminated from SSI Medicaid. (Id.) And, in 2018, as of August 17, 2018, 17,689 individuals were terminated from SSI Medicaid. (Id.) However, as Defendants point out, those numbers may include terminations from Medicaid for reasons other than too much income or too many resources. In response to the Court's June 31, 2019 Order, Defendants provided data indicating that 4,461 individuals (713 under the age of 18) were terminated from SSI Medicaid for having too much income or too many resources during the nearly three-year period from January 1, 2016 to December 31, 2018. (Resp., Docs. 125 at 2, 125-1 at 1.) Even using Defendants’ numbers, the class is sufficiently numerous. See Cox, 784 F.2d at 1553.

Defendants argue that Plaintiffs cannot meet the numerosity requirement. (Resp., Doc. 109 at 8.) According to Defendants, “[m]erely listing the number of individuals terminated from SSI Medicaid is not sufficient to satisfy the numerosity requirement” because “[t]here is no evidence showing how many of those were transferred to another Medicaid class of assistance after being terminated from SSI Medicaid.” (Resp., Doc. 109 at 9.) Thus, Defendants argue that Plaintiffs’ proposed class is not numerous because it may include persons who were never actually terminated from SSI Medicaid. However, as, Plaintiffs note, “[u]nder the DHS Medicaid Manual, Section 2052, an individual terminated from SSI Medicaid cannot be determined ineligible and terminated from Medicaid until the ex parte review determines that the individual is not eligible for any class of assistance reviewed by GAMMIS.” (Pls.’ Reply, Doc. 111 at 5) (citing Doc. 106-8).

The dispute seems to center on the word “terminated.” Is an individual “terminated” from SSI-Medicaid if they are transferred to another class of assistance? In some respects, this dispute goes to the heart of this case. However, the Court need not resolve this issue to determine the numerosity of Plaintiffs’ proposed main class. Plaintiffs have made a prima facie case for numerosity based on the numbers shown by the record, even using Defendants’ numbers. Even if the Court were to reach this dispute, Defendants have not shown that it would have so great an impact on Plaintiffs’ proposed class as to defeat numerosity.

Plaintiffs have not provided additional numbers of putative class members for their subclass. However, all or nearly all of the members of the main class should have received the letter Plaintiffs complain is deficient. The Court can reasonably deduce that the subclass is sufficiently numerous based on the close relationship of the subclass to the class at large.

iii. Commonality

To satisfy commonality, plaintiffs must demonstrate the class members “suffered the same injury” such that the class-wide proceeding will “generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350, 131 S.Ct. 2541 (quotations omitted). A common question “must be of such a nature that it is capable of class wide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350, 131 S.Ct. 2541.

With regard to the main class, Plaintiffs assert that all class members share a common legal question: “whether Defendants’ limited ex parte review of Medicaid eligibility for individuals terminated from SSI violates 42 U.S.C. § 1396a(a)(8) of the Medicaid Act and its implementing regulations.” (Mot., Doc. 103-1 at 26.) Specifically, Plaintiffs challenge whether Defendants’ policies and practices of redetermining Medicaid-eligibility for individuals who were terminated from SSI Medicaid is illegal because GAMMIS reviews eligibility “under some Medicaid classes of assistance, rather than all available classes of assistance required by the Medicaid Act.” (Reply, Doc. 111 at 5) (emphasis in original.) Plaintiffs have provided evidence that Defendants have a policy and practice of not reviewing individuals terminated from SSI for alternative eligibility under the Community Care Services Program, New Options Waiver and Comprehensive Supports Waiver Program, TEFRA/Katie Beckett, or the Independent Care Waiver Program. (Greene Dep., Doc. 103-2 at 64:2-71:14.)

Defendants contend that commonality is not satisfied here because “the result of the ex parte redetermination will yield different results for each individual depending on their unique set of circumstances.” (Resp., Doc. 109 at 11-12.) Again, however, Defendants confuse Plaintiffs’ point. The focus of Plaintiffs’ challenge is not on individual redeterminations, but on how Defendants’ policies and practices (and the implementation of such) deny Plaintiffs their rights under 42 U.S.C. § 1396a(a)(8) and thereby cause Plaintiffs harm. Plaintiffs argue that the problem is that Defendants did not consider Plaintiffs for all classes of assistance when Defendants made the ex parte determination of ineligibility. If Plaintiffs are able to prove that these policies and practices exist and are in violation of the law, then each class member will have suffered at least some measure of the same harm. See M.H. v. Berry, No: 1:15-cv-1427-TWT, 2017 WL 2570262 at *5-6 (N.D. Ga. June 14, 2017) (Thrash, J.) (finding commonality satisfied where Plaintiff challenged policies and practices that applied to all individuals in the subject program); Crawley v. Ahmed, No: 08-14040, 2009 WL 1384147 (E.D. Mich. May 14, 2009) (Hood, J.) (rejecting Defendants’ argument that Plaintiffs’ proposed common questions involve individual determination and finding commonality where Plaintiffs challenged Defendants’ practice of not reviewing class members’ eligibility for Medicaid coverage based on disabilities). Accordingly, Plaintiff's revised class shares a common legal question.

With regard to Plaintiffs’ proposed subclass, Plaintiffs assert that all class members share a common legal question: “whether Defendants’ ‘Notice of Medicaid Status’ letters violate 42 U.S.C. § 1396a(a)(3) of the Medicaid Act and its implementing regulations.” (Mot., Doc. 103-1 at 26.) Defendants do not directly challenge this question or the commonality determination for the subclass. The Court finds that Plaintiffs’ subclass presents a common question because the practice is applied in the exact same way to each member of the proposed class and affects each individual in exactly the same way. Thus, Plaintiffs’ proposed subclass shares a common question of law that is susceptible to a common answer.

iv. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Plaintiffs must show, “a sufficient nexus exists between the legal claims of the named class representatives and those of individual class members to warrant class certification.” Piazza v. Ebsco Industries, Inc., 273 F.3d 1341, 1347 (11th Cir. 2001); Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012). “A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). Yet, typicality “does not require identical claims or defenses.” Id. “A factual variation will not render a class representative's claim atypical unless the factual position of the representative markedly differs from that of other members of the class.” Id.

Defendants argue that typicality is not met because the named Plaintiffs all have different circumstances. (Resp., Doc. 109 at 12-15.) Specifically, Defendants contrast the experiences of J.M. and J.B. According to Defendants, J.M. lost his SSI because he was over-resource for SSI. (Resp., Doc. 109 at 13.) After J.M.’s SSI was terminated, Defendants’ ex parte review determined that J.M. did not qualify for Medicaid. (Id.) J.M.’s mother subsequently applied for Medicaid through the Katie Beckett class of assistance and received Medicaid for J.M. (See Reply, Doc. 111 at 11.) On the other hand, Defendants contend that Plaintiff J.B.’s claims are not typical because J.B. never lost Medicaid coverage. Defendants maintain that Plaintiff J.B. was not actually terminated from SSI Medicaid, and so there was no ex parte redetermination of her eligibility.

The record shows that J.B. received a letter dated March 6, 2018 informing her that her Medicaid would terminate on June 1, 2018. In this letter, Defendant DCH stated that “we determined that you are not eligible for continued Medicaid in any other way.” (J.B. Letter, Doc. 103-10 at 1.) It appears that she later received a letter dated April 25,2018 notifying her that her benefits would not be terminated. (Defs.’ Resp. Ex. 5.) The fact that she experienced no actual interruption in benefits does not change the fact that Defendants wrongfully determined her ineligible at some point.

The named Plaintiffs all share a similar fact pattern of receiving SSI Medicaid that was later terminated. When they lost their SSI benefits, Plaintiffs were all subject to Defendants policies and practices of redetermining Medicaid eligibility that allegedly did not consider all bases of Medicaid eligibility. All of the named Plaintiffs received the same form termination notice. Plaintiffs were all forced to spend precious time and resources, including finding counsel or other assistance, to address their allegedly wrongful termination. Thus, in this regard, all of the named Plaintiffs share a similar experience.

The typicality requirement is met for the Court's revised main class. The claims of the class and the class representative arise from the same pattern or practice and are based on the same legal theory. See Kornberg, 741 F.2d at 1337; see also Crawley, No: 08-14040, 2009 WL 1384147 at *13 (finding typicality satisfied where Plaintiffs brought suit because their Medicaid benefits were terminated without a determination of whether Plaintiffs were eligible under a disability-based category).

Plaintiffs argue that their claims regarding the lack of adequate notice are typical of the claims of the subclass. (Mot., Doc. 103-1 at 28.) Defendants do not address whether or not Plaintiffs’ claims regarding notice are typical of the claims of the subclass. (See Resp., Doc. 109 at 12-13.) Plaintiffs’ claims regarding the lack of adequate notice are typical of the claims of the subclass because they arise from the same pattern or practice of review and determination of Medicaid eligibility and are based on the same legal theory.

As the Court mentioned above, Defendants, in their first supplemental response, objected to the inclusion of adults in Plaintiffs’ classes as all the named Plaintiffs are minor children. This objection was not raised in Defendants’ original response to Plaintiffs’ Motion as it should have been. Defendants are well aware of the requirements for eligibility under the four programs Plaintiff contends are wrongfully excluded from Defendants’ ex parte review. Defendants were therefore in a position to explain how the policies and practices Plaintiffs challenge apply to adults in a different way. This objection to typicality is therefore overruled. However, if Defendants are able to show that inclusion of adults will administratively complicate maintenance of this action, they may raise this issue at the aforementioned status conference, and the Court may amend this Order at that time. Fed. R. Civ. P. 23(c)(1)(C).

v. Adequacy of Representation

To prove that representation is adequate, Plaintiffs must demonstrate that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This inquiry “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “This ‘adequacy of representation’ analysis encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (internal quotations omitted).

Here, Plaintiffs argue that both the named Plaintiffs and Plaintiffs’ counsel will fairly and adequate protect the interests of the unnamed class members. (Mot., Doc. 103-1 at 28.) Defendants dispute Plaintiffs’ contention: First, Defendants argue that because the named Plaintiffs all have Medicaid and have had Medicaid throughout this litigation they lack standing to pursue this case. (Doc. 109 at 15.) According to Defendants, Plaintiffs have also failed to show harm. (Id. at 15-16.) Defendants then contend that despite Plaintiffs’ allegation that Plaintiffs were denied a fair hearing, none of the Plaintiffs requested a hearing after being notified that their Medicaid was being terminated and they could request a hearing. In sum, according to Defendants, Plaintiffs lack standing to pursue this case and thus, are inadequate class representatives because Plaintiffs have had Medicaid coverage throughout this action, have not suffered harm, and had an opportunity for a fair hearing.

First and foremost, Defendants’ argument that none of the class representatives have suffered harm is belied by the record. Defendants admit J.M. was required to turn to his Special Needs Trust to cover expenses that should have been borne by Medicaid. (Defs.’ Cert. Resp. Br. at 15 (citing Lewis Dep. At 25:2–26:25, 30:22-31:131).) Accordingly, J.M. has shown standing, and therefore this objection to his adequacy is overruled.

Further, all Plaintiffs have shown both harm and the likelihood of future harm if Defendants same alleged policies and practices are implemented without modification. They are all subject to Defendants’ administrative redetermination process that is allegedly not implemented in conformity with the law.

As to the argument that all named Plaintiffs currently have Medicaid coverage, the Court agrees with Plaintiff that these arguments go to mootness, not standing. (Reply, Doc. 111 at 9.) “[M]ootness [is] the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).” United States Parole Comm. v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980).

Plaintiffs argue that the “inherently transitory” exception to mootness doctrine preserves Plaintiffs J.M.’s and N.W.’s claims. (Pls.’ Reply, Doc. 111 at 10.) According to Plaintiffs, both J.M. and N.W. had their SSI benefits terminated and subsequently, their Medicaid terminated because of Defendants’ redetermination policies. (Id. at 10.) To avoid losing Medicaid all together, J.M.’s and N.W.’s mothers applied for Medicaid anew under the Katie Beckett class of assistance to ensure health benefits for their children. (Id.)

The Court agrees that Plaintiffs J.M.’s and N.W.’s claims are not moot because they fall under the “inherently transitory” exception. In Sosna v. Iowa, the Supreme Court explained the “inherently transitory” exception to the mootness doctrine:

There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to “relate back” to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.

419 U.S. 393, 402, n. 11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); see also Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (upholding a district court's certification of a class action where Plaintiffs challenged a law that allowed pre-trial detainees to be detained for thirty days without a probable cause determination even though the named Plaintiffs were no longer in pretrial detention). The Supreme Court has explained that “an action brought on behalf of a class does not become moot upon expiration of the named plaintiff's substantive claim ․” Geraghty, 445 U.S. at 404, 100 S.Ct. 1202.

In Wilson v. Gordon, the Sixth Circuit ¹⁰ distilled two requirements for determining when the “inherently transitory” exception applies: First, “[t]he injury must be so transitory that it would likely evade review by becoming moot before the district court can rule on class certification.” Wilson v. Gordon, 822 F.3d 934, 945 (6th Cir. 2016). Second, it must be “certain [that] other class members are suffering the injury.” Id.

In Wilson, the plaintiffs alleged that they applied for Medicaid in Tennessee, but did not receive a timely final determination of their eligibility and were not provided hearings on their delayed applications. Wilson, 822 F.3d at 940–41. A day before the district court's hearing on Plaintiffs’ Motion for Class Certification, the State enrolled all of the named Plaintiffs and many of the putative class members in Medicaid. Id. at 941. After the District Court certified Plaintiffs’ class and granted a preliminary injunction, the State appealed the district court's grant of a preliminary injunction and argued that Plaintiffs had voluntarily relinquished their claims, thus making the case moot. Id. at 942.

The Sixth Circuit held that “the ‘inherently transitory’ exception to mootness applies to this case” because “Plaintiffs did not know how long their claims for injunctive relief from delay would remain live.” Id. at 945. As “[t]he duration of Plaintiffs’ claims was tenuous,” the Sixth Circuit reasoned that “[t]he State could quickly either hold a hearing on their delayed applications for Medicaid or enroll them in [Medicaid] at any point after the [ ] deadline expired, as actually occurred in this case, before the district court could reasonably be expected to rule on the class certification motion.” Id. at 947. In reaching this decision, the Court explained that “courts have also focused on uncertainty about how long a claim will remain live, and the defendant's ability to quickly render a claim moot, in holding that this exception applies.” Id. at 947.

Here, instead of the State conducting the full redetermination that Plaintiffs contend they are mandated to do under the law or simply enrolling Plaintiffs in Medicaid, J.M. and N.W. were compelled to submit entirely new Medicaid applications for a different class of assistance. J.M. and N.W. sought to enforce their legal rights under the Medicaid Act. J.M. and N.W.’s parents were essentially forced to apply for Medicaid anew because if they did not, their children risked losing necessary medical care and services. While J.M.’s and N.W.’s new applications were ultimately approved, their injuries were twofold: (1) J.M. and N.W. risked not having vital medical care that they needed to survive and (2) J.M. and N.W. were forced to submit entirely new Medicaid applications to obtain insurance. Given the fact pattern established in J.M.’s and N.W.’s cases, and Defendants admitted practices (see generally Greene Dep., Doc. 103-2 at 64-71), it is probable that other class members have suffered or will suffer the same type of injury. These injuries are transitory because given the nature of both their health conditions and Defendants’ Medicaid application program, the Plaintiffs are essentially forced to re-apply for Medicaid to ensure insurance coverage. Other class members are likely also suffering from this injury by the sheer number of intervenors that Plaintiffs have proposed. (See, e.g., Second Amend. Compl., Doc. 61; B.J.’s Mot. to Intervene, Doc. 105.)

Plaintiffs also argue that the “capable of repetition, yet evading review” exception applies to preserve J.B.’s claims. The capable of repetition, yet evading review doctrine “applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007); see also Arcia v. Fla. Sec'y of State, 772 F.3d 1335, 1343 (11th Cir. 2014) (applying the same test).

Plaintiffs explain that J.B.’s Medicaid benefits are in constant flux due to her mother's income, such that, if her mother's income exceeds the limits for SSI in any given month, J.B. loses Medicaid. J.B. attached two termination notices in support of this argument. (See J.B. Mar. 26, 2018 Letter, Ex. I, Doc. 103-10; J.B. Sept. 24, 2018 Letter, Doc. 114-2.) Because J.B.’s mother's income fluctuates from month-to-month, J.B. is intermittently at risk of losing Medicaid. According to Plaintiffs, “application of the policy evades review as SSI is reinstated when J.B.’s mother's income goes below the SSI limit” but terminated as soon as it exceeds the limit. (Id. at 13.) J.B. contends that this is not a speculative situation as it has occurred several times already. As J.B. has presented evidence that this fluctuating cycle of benefits — where benefits are terminated and then reinstated — has occurred several times, J.B. will likely be subject to the same action again.

Finally, Defendants attack Plaintiffs’ counsel in an attempt to convince this Court that Plaintiffs’ counsel, Mr. Norris, is inadequate to represent a class. The Court is not persuaded. Mr. Norris has spent a significant portion of his career litigating complex cases on behalf of individuals with disabilities. (See Norris Decl., Doc. 111-4 ¶¶ 3-8.) He is knowledgeable of the applicable law and the time and resources that complex litigation requires. Thus, the adequacy of representation requirement is met.

c. Rule 23(b)(2)

Having successfully met Rule 23(a)’s requirements, Plaintiffs now must demonstrate that the putative class fits into one of the types of class actions listed in Rule 23(b). Wal-Mart v. Dukes, 564 U.S. 338, 345, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Plaintiffs argue they meet the requirements of Rule 23(b)(2). Under Rule 23(b)(2), certification is appropriate if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Critically, the “key” to demonstrating a Rule 23(b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart v. Dukes, 564 U.S. 338, 345, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (citing Nagareda, Richard, “Class Certification in the Age of Aggregate Proof,” 84 N.Y.U. L. Rev. 97, 132 (2009)). Stated differently, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Dukes, 564 U.S. at 345, 131 S.Ct. 2541 (emphasis in original).

Here, Plaintiffs argue that “Defendants have failed to fulfill their obligation to individuals terminated from SSI” as “Defendants’ administration of the process of redetermination of Medicaid eligibility and the provision of written notice for individuals terminated from Medicaid fails to discharge the requirements imposed on Defendants by the Medicaid Act.” (Mot., Doc. 103-1 at 30-31.) According to Plaintiffs, “[c]ertification under Rule 23(b)(2) is appropriate as the injuries sustained by each class member can be addressed in a single injunction that need not differentiate between class members.” (Id. at 31.) Defendants contend that “Plaintiffs failed to show how injunctive and declaratory relief would affect the whole class.” (Response, Doc. 109 at 18-19.) But, this is all that Defendants say; they do not explain this statement or connect it to any case law or the relief requested by Plaintiffs in this case.

Plaintiffs’ proposed classes fit within Rule 23(b)(2). Should this Court determine that an injunction is appropriate, one injunction for each of Plaintiffs’ proposed classes will “provide relief to each member of the class.” Dukes, 564 U.S. at 345, 131 S.Ct. 2541. Plaintiffs have not requested that the Court conduct individualized reviews of the putative class members’ claims and situations. Courts assessing similar claims on motions for class certification have determined that the requirements of Rule 23(b)(2) are met. See M.H. v. Berry, No: 1:15-cv-1427-TWT, 2017 WL 2570262 at *5-6 (N.D. Ga. June 14, 2017) (Thrash, J.) (holding that the requirements of Rule 23(b)(2) were met where Plaintiffs sought an injunction or declaratory ruling that certain policies are practices were unlawful); Belton v. Ga., No: 1:10-cv-0583-RWS, 2011 WL 925565 (N.D. Ga. 2011) (Story, J.); Dozier v. Haveman, No: 2:14-cv-12455, 2014 WL 5483008 at *24-25 (E.D. Mich. Oct. 29, 2014) (Michelson, J.) (finding Plaintiff's proposed class met the requirements of Rule 23(b)(2) where “the Court could have provided relief to the entire class through a single, final injunctive order” and granting an injunction the same day, see Dozier v. Haveman, No: 2:14-cv-12455, 2014 WL 5480815 (E.D. Mich. Oct. 29, 2014)).

Thus, the Court finds that Plaintiffs have demonstrated that the requirements of Rule 23(b)(2) are met in this case. Accordingly, Plaintiffs’ Motion for Class Certification [Doc. 103] is GRANTED subject to the Court's redefinition of the class contained herein.

IV. CONCLUSION

For the reasons stated above, it is

ORDERED that Plaintiffs’ Motion for Class Certification [Doc. 103] and Plaintiffs’ Motion for Leave to File Exhibit in Support of Motion for Class Certification [Doc. 114] are GRANTED. The Court certifies two classes:

1. The Main Class: “All Georgia Medicaid recipients who are or have been eligible under the Supplemental Security Income Medicaid class of assistance (“SSI-Medicaid”) since July 27, 2016, and who have been, or will in the future be, terminated from SSI and SSI-Medicaid after being subjected to Georgia Department of Community Health's policies and practices of redetermination of Medicaid eligibility.” (Order, Doc. 122.)

2. The Subclass: “Individuals to whom the Georgia Department of Community Health sent a “Notice of Medicaid Status” letter since July 26, 2016, notifying them that they are not eligible for Medicaid because their Supplemental Security Income (SSI) payments through the Social Security Administration are denied or terminated.” (Mot., Doc. 103-1 at 23.)

It is FURTHER ORDERED that the Parties’ counsel are DIRECTED to meet and confer regarding next steps in the case, and to submit an Amended Scheduling Order in light of class certification NO LATER THAN October 10, 2019. The Amended Scheduling Order SHALL identify any anticipated additional discovery required and the length of time required for such. If the parties disagree with respect to this, they shall set forth what they agree on and their respective different positions on disputed matters. The Amended Scheduling Order SHALL FURTHER set forth a deadline for filing motions for summary judgment, and if no such motions are filed, for submitting a Joint Consolidated Pre-Trial Order. The Amended Scheduling Order SHALL FURTHER specify whether the Parties anticipate the need for an evidentiary trial on the merits, and if so, the anticipated length of such. Counsel SHALL FURTHER identify any other case management issues anticipated in their scheduling order.

It is FURTHER ORDERED and NOTICE IS HEREBY GIVEN that a status conference will be held with counsel on October 16, 2019 at 2:30 pm, subject to other scheduling conflicts that counsel promptly bring to the attention of the Court's Courtroom Deputy, Harry Martin.

It is FURTHER ORDERED that the parties are DIRECTED to confer regarding potential mediation of the case and be prepared to discuss the option of mediation with the Court at the status conference. The parties are FURTHER DIRECTED to be prepared to discuss options to resolve this matter by settlement without the need for further discovery or hearings.

IT IS SO ORDERED this 27th day of September, 2019.

FOOTNOTES

1.   Plaintiffs argue that Defendants failed to follow the Fair Hearing provisions of the Medicaid Act, 42 U.S.C. § 1396a(a)(3), which they claim ultimately resulted in a due process violation under Goldberg v. Kelly, 397 U.S. 254, 267–68, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). However, in their Motion for Class Certification, Plaintiffs appear to subsume their Due Process claim within their Medicaid Act claim. The Court recognizes that this issue may well need to be fleshed out more fully in the subsequent proceedings. It is not precisely clear if Plaintiffs are arguing that their statutory and constitutional claims are congruent. The Court recognizes that these claims can potentially be asserted under both 42 U.S.C. § 1983 and the Medicaid Act.

2.   The following subsection specifies which individuals DCH must collect additional information for. Section 435.911(d) provides that these individuals include:(1) Individuals whom the agency identifies, on the basis of information contained in an application described in § 435.907(b) of this part, or renewal form described in § 435.916(a)(3) of this part, or on the basis of other information available to the State, as potentially eligible on a basis other than the applicable MAGI standard;(2) Individuals who submit an alternative application described in § 435.907(c) of this part; and(3) Individuals who otherwise request a determination of eligibility on a basis other than the applicable MAGI standard as described in § 435.603(j) of this part.42 C.F.R. § 435.911(d)(1)-(3).

3.   TANF is the acronym for Temporary Assistance for Needy Families. See What is TANF?, U.S. Dep't of Health and Human Services (last reviewed September 26, 2019), https://www.hhs.gov/answers/programs-for-families-and-children/what-is-tanf/index.html.

4.   GAMMIS reviews an individual's eligibility for Medicaid under the following classes of assistance: Pickle, Disabled Adult Child, Former SSI-Disabled Child, Disabled Widow(er), Disabled Widow(er) Age 60-64, Widow(er) 1984, Protected Medicaid 1972, Nursing Home, Qualified Medicare Beneficiaries, Specified Low-Income Medicare Beneficiaries. (Greene Dep., Doc. 103-2 at 61:22-62:15; 63:8-64:1; 75:5-15.)

5.   The Court notes that the letters issued to Plaintiffs J.M., N.W., and J.B. are dated approximately three months’ notice prior to their identified Medicaid. termination date. (See Letters, Pls.’ Exs. G, H, I, Docs. 103-8, 103-9, 103-10.) Whether they (or their parents/guardians) actually received these letters is a whole different question.

6.   The Court GRANTS Plaintiffs’ Motion for Leave to File Exhibit in Support of Motion for Class Certification [Doc. 114]. This Motion is unopposed. The Exhibit that Plaintiffs provides is a letter, dated September 24, 2018, that informs J.B. that she will not be eligible for Medicaid from “December 2018, ongoing.” (J.B. Sept. 24, 2018 Letter, Doc. 114-2.) As the Exhibit that Plaintiffs provide was generated by Defendants, the Court's consideration of it will not prejudice Defendants.

7.   Defendants maintain that “J.B. was not terminated from SSI Medicaid and did not undergo a redetermination.” (Resp., Doc. 109 at 14.) The Court cannot reconcile this assertion with the documentation in the record indicating that J.B. received two letters on two separate dates notifying her that Defendants had conducted a redetermination of her eligibility and that her Medicaid would be terminated. (See J.B. March 26, 2018 Letter, Ex. I, Doc. 103-10; J.B. Sept. 24, 2018 Letter, Doc. 114-2.)

8.   For example, an individual receiving SSI and eligible under the SSI-Medicaid class of eligibility could apply for and receive Medicaid under the Katie Beckett class of eligibility without experiencing any change in assets or income. Then, the individual could later become ineligible for SSI. Presumably, such individual would not be “terminated” from Medicaid and would not receive a termination letter (the Court notes though, that it may be incorrect in this assumption). This contrasts with the scenario repeatedly set forth by Defendants in this case, where an individual receiving SSI-Medicaid first becomes ineligible for SSI, and then receives a termination letter, and in response to such letter applies for another class of eligibility, such as Katie Beckett. This latter class of individuals are properly included in the class, as they would have been subjected to DCH's allegedly improper policies.

9.   This includes Defendants’ proposal to change the class definition to include only those persons “denied Medicaid benefits,” rather than “terminated from SSI-Medicaid.” The Court agrees with Plaintiffs’ position set forth in their Response to Order (Doc. 129), specifically, that “denied Medicaid benefits” implies that an individual is otherwise eligible for Medicaid but denied services.

10.   The Sixth Circuit's discussion of the “inherently transitory” exception is particularly helpful as the claims presented in Wilson mirror those of the named Plaintiffs. The Eleventh Circuit has only briefly discussed this exception. See Stein v. Buccaneers Ltd. P'ship, 772 F.3d 698, 709 (11th Cir. 2014). While the “inherently transitory” exception is closely related to the “capable of repetition, yet evading review” exception, there are differences between the two. See Olson v. Brown, 594 F.3d 577, 583 (7th Cir. 2010) (clarifying that “the ‘inherently transitory’ exception to the mootness doctrine is distinct from the ‘capable of repetition yet evading review’ exception. When the claim is inherently transitory ․ the plaintiff must show that there will likely be a constant class of persons suffering the deprivation complained of in the complaint. This is different from when a plaintiff invokes the ‘capable of repetition yet evading review’ exception, where the plaintiff must show that the claim is capable of repetition as to the named plaintiff.”).

Amy Totenberg, United States District Judge