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ANDERSON v. DEPARTMENT OF PUB. WELFARE

April 1, 1998

MICHAEL ANDERSON, et al., Plaintiffs,
v.
DEPARTMENT OF PUBLIC WELFARE, et al., Defendants.



The opinion of the court was delivered by: BRUCE W. KAUFFMAN

MEMORANDUM

 Bruce W. Kauffman, J.

 April 1, 1998

 Plaintiffs Michael Anderson, Joseph Garrison, and Disabled in Action of Pennsylvania ("DIA") (collectively, "Plaintiffs") bring this action against Defendants, the Department of Public Welfare ("DPW") and DPW Secretary, Feather Houstoun, pursuant to Part A of Title II of the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12134 (1995), and the regulations promulgated thereunder. In short, Plaintiffs allege that Defendants are violating Title II in three ways: first, by failing to require that all health care providers in DPW's mandatory managed care program practice in offices accessible to people with mobility impairments; second, by failing to provide all information related to the managed care program in alternative formats such as Braille, large print, and audiotape; and third, by using methods of administration that have discriminatory effects. Plaintiffs seek declaratory and injunctive relief.

 Now before the Court are Plaintiffs' Motion for Class Certification, Plaintiffs' Motion for Summary Judgment, and Defendants' Cross-Motion for Partial Summary Judgment. For the reasons set forth herein, the Court grants Plaintiffs' Motion for Class Certification, grants in part and denies in part Plaintiffs' Motion for Summary Judgment, and denies Defendants' Cross-Motion for Summary Judgment. An Order accompanies this Opinion.

 BACKGROUND

 Plaintiff Anderson uses a wheelchair and has limited vision; Plaintiff Garrison is blind; Plaintiff DIA is a nonprofit corporation. Defendant DPW is responsible for administering Pennsylvania's Medical Assistance Program. *fn1" DPW has mandated that all Medical Assistance recipients in Philadelphia, Bucks, Chester, Delaware, and Montgomery Counties receive their health care through health maintenance organizations ("HMOs"). The HMOs restrict the recipients' choice of health care providers to participating physicians and dentists selected by the HMOs. The program, effective September 1, 1997, is called "HealthChoices." Plaintiffs Anderson and Garrison are Medical Assistance recipients enrolled in HealthChoices.

 DPW does not require the HealthChoices HMO network providers to practice in offices that are accessible to people with mobility impairments. DPW never considered whether provider offices would be accessible to disabled Medical Assistance recipients, either during the HMO bidding process or later, when it conducted "readiness reviews" of the four selected HMOs. *fn2" DPW does not require providers who practice in inaccessible offices to make house calls or to see disabled patients at another facility that is accessible.

 DPW does require the HMOs to send each Medical Assistance recipient a provider directory. In addition to listing the names, addresses, telephone numbers, hospital affiliations, any board certifications, and office hours of the participating physicians and dentists, the directory marks those primary care physicians ("PCPs") who identify themselves as "specializing in the treatment of people with special needs." *fn3" The number of PCPs identifying themselves as "specializing in the treatment of people with special needs" varies widely by HMO and by county. Not every PCP identified as specializing in the treatment of people with special needs practices in an accessible office. The provider directories are DPW's only source of information regarding the number of accessible HealthChoices providers. *fn4"

 DPW hired an independent benefits consultant to facilitate the HMO enrollment of Medical Assistance recipients. When a recipient enrolls in an HMO, the benefits consultant is expected to ascertain whether that person has a mobility impairment and then transmit that information to the HMO, thus allowing the HMO to assign that person an appropriate PCP. *fn5" Medical Assistance recipients with mobility impairments who enrolled in HMOs prior to June 1997 often were assigned to PCPs having inaccessible offices. *fn6"

 The HMOs make some, but not all, of their materials available in Braille, large print, or audiotape. All four HMOs provide copies of their member handbooks on audiotape; three of the four HMOs also provide copies of their member handbooks in Braille. None of the four HMOs has a provider directory available in any alternative format.

 DISCUSSION

 I. Class Certification

 Plaintiffs request certification of the following class:

 
All Medical Assistance recipients required to participate in HealthChoices, the mandatory managed care program in Philadelphia, Bucks, Chester, Delaware and Montgomery counties, who have impairments which substantially limit their mobility and/or vision.

 A. The Requirements of Rule 23(a)

 Fed. R. Civ. P. 23(a) provides:

 
one or more members of a class may sue or be sued as representative parties on behalf of all 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.

 1. Numerosity/Impracticality of Joinder

 Although commonly referred to as a "numerosity" requirement, "Rule 23(a)(1) is an impracticability of joinder requirement, of which class size is an inherent consideration within the rationale of joinder concepts." 1 HERBERT B. NEWBERG AND ALBA CONTE, NEWBERG ON CLASS ACTIONS, § 3.03, at 3-11 (3d ed. 1992). Accordingly, "there is no precise number necessary for class certification." Metts v. Houstoun, 1997 U.S. Dist. LEXIS 16737, at *5, No.Civ.A. 97-4123, 1997 WL 688804, at *2 (E.D. Pa. Oct. 24, 1997). Apart from class size, factors relevant to an evaluation of the impracticability of joinder include judicial economy, the geographic diversity of class members, the financial resources of class members, the relative ease or difficulty in identifying members of the class for joinder, and the ability of class members to institute individual lawsuits. See, e.g., Metts, 1997 WL 688804, at *2; Sherman v. Griepentrog, 775 F. Supp. 1383, 1389 (D. Nev. 1991).

 Here, the proposed class would include every mobility- or visually-impaired recipient of Medical Assistance in Southeastern Pennsylvania. Plaintiffs provide census figures, which show that approximately 5% of people nationwide use mobility devices such as wheelchairs, walkers, and canes and approximately 5% of people nationwide have difficulty seeing words and letters. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE U.S. 138, 145 (115th ed. 1995) (Chart Nos. 209, 222). Extrapolating from these statistics, Plaintiffs argue that approximately 25,000 of the 540,000 recipients of Medical Assistance in southeastern Pennsylvania would be members of the proposed class. Defendants argue that this figure, based on national statistics, is "merely speculative" and thus does not show that the putative class is sufficiently numerous.

 The Court agrees with Plaintiffs that statistics tending to show that joinder would be impracticable may be sufficient to satisfy Rule 23(a)(1). See Taylor v. White, 132 F.R.D. 636, 646-47 (E.D. Pa. 1990); see, e.g., Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978) (certifying class of resident aliens desiring jobs in the civil service, finding Rule 23(a)(1) satisfied by census figures); Pottinger v. City of Miami, 720 F. Supp. 955, 958 (S.D. Fla. 1989) (certifying class of homeless people living on the public streets in Miami, finding Rule 23(a)(1) satisfied after drawing reasonable inferences from studies conducted of homeless population); Lewis v. Gross, 663 F. Supp. 1164, 1169 (E.D.N.Y. 1986) (certifying class of resident aliens denied Medicaid coverage because of their alienage, finding Rule 23(a)(1) satisfied by census figures).

 Moreover, this case bears other indicia that joinder would be impracticable. Class members are located throughout a number of counties and might be difficult to locate, see Metts, 1997 WL 688804, at *3, and because of their limited financial resources, class members might be unlikely to institute individual actions.

 2. Commonality

 Commonality is easily established in cases seeking injunctive relief. See Baby Neal v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). To satisfy the commonality requirement, Plaintiffs must demonstrate that the named plaintiffs and the proposed class share "at least one question of fact or law." Id. at 56. "The alleged existence of common discriminatory practices" satisfies the commonality requirement. Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994).

 Defendants contend that a mobility - or visually-impaired Medical Assistance recipient would not be a class member unless he or she had suffered actual injury, and that to establish commonality, the Court would need to make factual determinations regarding each putative class member's impairment and ability to obtain medical care through HealthChoices. The Court rejects this argument. "Class members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice." Baby Neal, 43 F.3d at 56. Because Plaintiffs request only ...


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