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February 24, 1986

MARGARET M. HECKLER, in her official capacity as Secretary of Health and Human Services, et al.

The opinion of the court was delivered by: GILES


 Plaintiffs Isabelle Simpson and intervenors *fn1" filed this action for injunctive and declaratory relief against the state and federal defendants. Plaintiffs challenge the legality of that portion of the medicaid program in Pennsylvania which sets the reimbursement rate paid to physicians who provide medical care to medicaid recipients in the state. Plaintiffs contend that the Pennsylvania medicaid program violates the federal "equal access" regulation, which requires the state agency responsible for administering the medicaid program to set sufficient reimbursement rates for physicians treating medicaid patients so that "services under the plan are available to recipients at least to the extent that those services are available to the general population." 42 C.F.R. ยง 447.204 (1985). Plaintiffs claim that the Pennsylvania reimbursement rate is so inadequate that few physicians will treat medicaid patients.

 Plaintiffs request that this court: (1) certify a class pursuant to Fed. R. Civ. P. 23 that will include all persons entitled to benefits under the medicaid program; (2) declare the medicaid program illegal and invalid; (3) enjoin the federal defendant Secretary of Health and Human Services ("HHS") from approving any medicaid program in Pennsylvania which does not meet all applicable federal regulations, including the equal access regulation, and; (4) monitor the state defendants' submission of any plan which does not satisfy the equal access regulation. Federal defendant HHS seeks dismissal of the complaint for plaintiffs' lack of standing, failure to state a claim upon which relief can be granted, and lack of subject matter jurisdiction. HHS moves alternatively for summary judgment. HHS also opposes class certification.

 I find that plaintiffs lack standing to bring this action against the federal defendant and grant the motion of HHS to dismiss the complaint. I therefore do not reach the issues of plaintiffs' failure to state a claim or lack of subject matter jurisdiction. I deny plaintiffs' motion for class certification as unnecessary and because plaintiffs fail to meet the requirements of Fed. R. Civ. P. 23(a) and 23(b)(2).

 I. Defendant's Motion to Dismiss

 Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984), articulates the standard for plaintiffs' standing to invoke the jurisdiction of a federal court in an action against a government agency for allegedly unlawful conduct. Allen restates three general, established criteria for standing:

Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative?

 104 S. Ct. at 3325. Those criteria operate in light of the overall purpose of a standing inquiry, which is to measure whether plaintiffs' personal stakes in the outcome warrant their invocation of federal court jurisdiction and justify the exercise of the court's remedial powers on their behalf. Warth v. Seldin, 422 U.S. 490, 498-99, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).

 The first inquiry is whether plaintiffs allege a "'distinct and palpable'" injury, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979) (quoting Warth, 422 U.S. at 501), not one which is "abstract" or "conjectural" or "hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). Plaintiffs have experienced difficulty in obtaining medical care for themselves and their families in their immediate locales; they often have been unable to obtain treatment by the physicians or facilities closest to them. Plaintiffs have suffered inconvenience and delay in receiving treatment. Further, plaintiffs have been denied a second opinion or a choice of specialists. However, plaintiffs have received successful medical treatment from other physicians or in other facilities willing to accept medicaid patients.

 The equal access regulation requires only "that the state's reimbursement formula be designed to engage a sufficient number of providers to make the state's medicaid program meaningful in all respects." DeGregorio v. O'Bannon, 500 F. Supp. 541, 550 (E.D. Pa. 1980). The reimbursement rate in itself is not a measure of compliance with the equal access regulation. The "regulation does not require rate parity for medicaid patients"; it does require "that the reimbursement rate be set sufficiently high to allow some marginal profit in servicing medicaid patients . . . so as to ensure that medicaid patients have substantial access" to medical care. Id. Substantial access, not the reimbursement rate, satisfies the equal access regulation.

 The second component of standing is that the "injury must be 'fairly' traceable to the challenged action." Allen, 104 S. Ct. at 3325 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)). Neither the facts alleged by plaintiffs nor the law applicable to their claims supports the conclusion that HHS's approval of the state medicaid program is the direct cause of the alleged injury, a deprivation of equal access to medical care.

 It is well-settled that HHS, as the administrative agency that implements a federal law, is entitled to "substantial deference" in determining whether a state's medicaid plan complies with the applicable federal statutes and regulations. Troutman v. Cohen, 588 F. Supp. 590, 598 (E.D. Pa.), aff'd 755 F.2d 924 (3d Cir. 1984). See New York State Department of Social Services v. Dublino, 413 U.S. 405, 421, 37 L. Ed. 2d 688, 93 S. Ct. 2507 (1973); Alabama Nursing Home Ass'n v. Harris, 617 F.2d 388, 393 (5th Cir. 1980) (citing Mazaleski v. Treusdell, 183 U.S. App. D.C. 182, 562 F.2d 701, 717 n.38 (D.C. Cir. 1977) (other citations omitted)). HHS's only responsibility is to evaluate the state medicaid program for compliance. The state has "the principal responsibility for administering the [medicaid] program," including "enlisting medical service providers, and paying those providers for services rendered." DeGregorio, 500 F. Supp. at 545. Even assuming that plaintiffs have ...

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