Mem. Hosp. v. Toia, 441 F. Supp. 26, 27 (S.D.N.Y. 1977).
Should HHS choose to negotiate with the state, it will be the state's responsibility to decide whether it will raise its physician reimbursement rate in order to comply with the equal access regulation. If the state raises its reimbursement rate to the highest point it can while staying within the bounds of its own financial resources, and the plan still does not comply with the applicable federal statutes, then HHS's only option will be to withhold funds from the state.
Such withholding will severely curtail the state's ability to pay physicians who are currently willing to treat medicaid patients and will discourage additional physicians from providing medical care to such patients. Medicaid recipients would then lack adequate medical care. Furthermore, as both parties concede, there may be other reasons why physicians in Pennsylvania do not participate in medicaid aside from the reimbursement rate. A higher reimbursement rate need not lead to a corresponding increase in the number of physicians willing to treat medicaid patients. A ruling in favor of plaintiffs promises only a minimal possibility of redressing their injuries. Such speculation is insufficient to support standing.
Plaintiffs fail to meet any of the criteria for standing and thus their complaint is dismissed as to the federal defendant HHS.
II. Plaintiffs' Motion for Class Certification
Both the state and federal defendants oppose plaintiffs' motion for class certification. The state defendants urge this court to deny plaintiffs' motion because it was not filed until November 20, 1981, more than five months after the complaint was filed. Defendants assert that this delay violates Rule 27(c) of the Local Rules of Civil Procedure which requires the filing of a motion for class certification within ninety days after the filing of the complaint. Although this period may be extended on motion for good cause, plaintiffs never filed a motion for an extension. Even though plaintiffs' motion could be denied for failure to comply with Rule 27(c), I decline to do so. See Umbriac v. American Snacks, Inc., 388 F. Supp. 265, 272 (E.D. Pa. 1975) (plaintiff's failure to submit motion for class certification within specified time period under local rules does not warrant denial of plaintiffs' motion under the circumstances). Instead, I deny the motion for class certification as unnecessary and because plaintiff is unable to meet all of the requirements for class certification delineated in Fed. R. Civ. P. 23(a) and 23(b)(2).
The Fed. R. Civ. P. 23(a) prerequisites to a class action are that (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 party will fairly and adequately protect the interests of the class.
Plaintiffs' proposed class does not exhibit the common questions of law or fact that Rule 23(a) requires. Plaintiffs argue that Pennsylvania's non-compliance with the equal access regulation affects all medicaid recipients because the state's reimbursement rate is insufficient to encourage physicians to accept medicaid patients. However, not all medicaid recipients in the state have encountered the same difficulties in obtaining medical care as have plaintiffs in this action. While a shortage of physicians willing to treat medicaid patients may exist in Delaware County, or in other areas, that condition is most likely not a state-wide situation. For example, urban counties have both more physicians in general and, in particular, more physicians willing to treat medicaid patients. Medicaid recipients in urban areas also have easier access to physicians by public transportation. In order to meet the commonality requirement, plaintiffs must demonstrate that defendants' non-compliance with the equal access regulation affects all eligible medicaid recipients. Plaintiffs' alleged injuries, taken as true, do not support the conclusion necessary for class certification that all eligible medicaid recipients are being deprived of adequate medical care. Failure to meet any one of the prerequisites of Rule 23(a) destroys the class. See Gatter v. Cleland, 87 F.R.D. 66, 69 (E.D. Pa. 1980).
Moreover, plaintiffs seek injunctive and declaratory relief. If this court renders a decision favorable to plaintiffs, any relief will benefit automatically all eligible medicaid recipients and will thus have the purpose and effect of a class action. In that situation, certification of a class action is unnecessary and inappropriate. See Gray v. International Bhd. of Elec. Workers, 73 F.R.D. 638, 640 (D.D.C. 1977). See also Staten v. Housing Auth. of City of Pittsburgh, 469 F. Supp. 1013, 1014 (W.D. Pa. 1979); 3B J. Moore, Moore's Federal Practice para. 23.40 (2d ed. 1982).
An appropriate order follows.
AND NOW, this 20th day of February, 1986, in accordance with the foregoing memorandum, it is hereby ORDERED that:
1. Federal defendant Secretary of Health and Human Service's motion to dismiss is GRANTED.
2. Plaintiffs' motion for class certification is DENIED.