Opinion
No. CIV 02-176-TUC-WDB
September 24, 2002
ORDER
Pending before the Court are Plaintiffs' Motion for Provisional Certification of Class Action and Motion to Amend Preliminary Injunction to Provisional Class. Oral argument on the two Motions was heard on September 23, 2002.
A. THE MOTION FOR PROVISIONAL CERTIFICATION
Plaintiffs have asked the Court to certify a class of plaintiffs which consists of "those individuals with end-stage renal disease who are eligible to receive emergency services from AHCCCs who are either (1) faced with imminent termination of the outpatient kidney dialysis, or (2) who have been unable to obtain outpatient kidney dialysis." The class includes approximately 125 people, including both those people who were "grandfathered" under Senate Bill 1007 and those who were not grandfathered because their need for dialysis arose after November 1, 2001.
Defendant Biedess has objected to the inclusion of approximately 20 people as members of the class (those not grandfathered by S.B. 1007) as being not sufficiently identifiable. The Plaintiffs reply that the only difference between the first group in the class and the second is that their need for emergency dialysis provided by AHCCCS did not arise until after November 1, 2001. The Court finds that these persons will be readily identifiable.
The Court finds that this proposed class meets the requirements under Rule 23, Fed.R.Civ.P. — (1) the class is sufficiently numerous that joinder of all members would be impractical; (2) the questions of law and fact, i.e. whether dialysis treatment for persons with end stage renal disease is an "emergency service" as contemplated by the Medicaid statute, is common to all the prospective plaintiffs; (3) the claims of the representative parties are typical of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. The Motion will be GRANTED.
B. THE MOTION TO AMEND
Plaintiffs ask that the Preliminary Injunction entered by the Court on June 17, 2002, be extended to include members of the prospective class, or in the alternative, require Defendant Biedess to provide members of the class with notice of AHCCCS's intent to terminate services and an opportunity for a pro-termination hearing.
Plaintiffs argue that the same factors that militated for the first preliminary injunction apply equally to the expanded class — there is a likelihood of success on the merits, a strong possibility of irreparable harm, the balance of hardships favors the Plaintiffs and the public interest would be supported by the preliminary injunction. Defendant Biedess objects to the Motion to Amend on two grounds (1) that the imposition of the preliminary injunction to the "grandfathered" group would violate the Eleventh Amendment, and (2) that the portion of the class that is not "grandfathered" was not eligible under S.B. 1007 for long-term care, but only emergency services.
The court holds that the Eleventh Amendment argument is unavailing. The question to be considered here is whether under the Medicaid statutes and regulations the State must interpret necessary dialysis as an emergency service for AHCCCS purposes and provide it to the class members. As the State is already required to provide emergency medical services, this suit does not necessarily touch on issues that were otherwise a legislative decision of the State. The Eleventh Amendment is not implicated in this suit.
Likewise, Defendant Biedess' argument that the second category of class members were not eligible for emergency care under S.B. 1007 is unavailing. The question is simply whether their dialysis treatment is required under the federal statute as applied by AHCCCS. The state's method of funding this care is not at issue.
Plaintiffs' Motion to Amend will be GRANTED.
C. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that
1. The Motion to Certify is GRANTED. The class shall consist of all persons who are or will be eligible for emergency medical services under the AHCCCS program, whose end-stage renal disease meets the definition of "emergency medical condition" set forth in 42 U.S.C. § 1396(b)(v)(3) and for whom their physicians have prescribed outpatient hemio-dialysis treatment three times weekly. The class includes all those individuals who, pursuant to AHCCCS's "extended services" program, had been receiving outpatient dialysis prior to November 1, 2001, and for whom treatment has been continued pursuant to S.B. 1007.
2. The Motion to Amend is GRANTED. The Court's Preliminary Injunction Order of June 17, 2002, is AMENDED to apply to the certified class.