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August 16, 2004.

CARL FIELDS, RAPHAEL JACKSON, JAMES GALLAGHER, by and through his sister and next friend, Sue Corrigan, ED SCHNEIDER, ROEL VILLAREAL, and KEVIN WILSON, on behalf of themselves and all others similarly situated, Plaintiffs,
BARRY MARAM, in his official capacity as the Director of the Illinois Department of Public Aid, Defendant.

The opinion of the court was delivered by: MARK FILIP, District Judge

Plaintiffs Carl Fields, Raphael Jackson, James Gallagher, by and through his sister and next friend, Sue Corrigan, Ed Schneider, Roel Villareal, and Kevin Wilson, ("Plaintiffs" or "the named Plaintiffs"), six disabled Medicaid recipients residing in Illinois nursing homes, have sued Defendant Barry Maram, in his official capacity as the Director of the Illinois Department of Public Aid, in this putative class action. Plaintiffs allege that Defendant has a policy of refusing to provide medically necessary motorized wheelchairs to disabled nursing home residents receiving Medicaid (while providing such wheelchairs to disabled individuals living in the community). Plaintiffs claim that Defendant's alleged policy violates Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, and they seek declaratory and injunctive relief under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Plaintiffs have moved to certify a class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). For the reasons stated below, the motion for class certification is granted.


  Three of the named Plaintiffs initiated this suit on January 12, 2004 and moved for class certification on February 23, 2004. Three more named Plaintiffs were added in an amended complaint that was filed on March 4, 2004, and, that same day, a revised motion for class certification was filed. Plaintiffs, who range in age from 26 to 63, allege that they all have quadriplegia or other severe physical disabilities that prevent them from ambulating and generally confine them to their beds in the Illinois nursing homes in which they reside. (D.E. 8, ¶¶ 2, 7-12.) These nursing homes, as well as others in Illinois, "receive payments as providers of goods or services to persons eligible for medical assistance from the State of Illinois." (D.E. 14, at 4; D.E. 8, ¶ 2.) At the time Plaintiffs filed their complaints and moved for class certification, none of the Plaintiffs had been provided with a motorized wheelchair by Defendant.*fn1 After Plaintiffs filed this suit and moved for certification of a class, Defendant provided each of these six Plaintiffs with a motorized wheelchair.*fn2 Plaintiffs assert that, although Defendant provides motorized wheelchairs to disabled Medicaid recipients living in the community, Defendant has a policy of refusing to provide medically necessary motorized wheelchairs to disabled nursing home residents, (D.E. 8, ¶ 4), (notwithstanding Defendant's post-lawsuit provision of such wheelchairs to the named Plaintiffs). As support for their contention that Defendant maintains this alleged broad discriminatory policy, Plaintiffs have submitted a June 15, 2002 letter from Linda K. Lynn, the Supervisor of Durable Medical Equipment & Ancillary Services for the Illinois Department of Public Aid, to Apria Healthcare, in which Ms. Lynn states "that power w/cs [wheelchairs] are not approved for clients in nursing homes." (D.E. 24, Exhibit A.) On March 16, 2004 (subsequent to the initiation of this suit and the motions for class certification), the Department of Public Aid issued an "Informational Notice" which states that "[t]he Department evaluates requests for custom power wheelchairs for Medicaid-eligible clients strictly according to medical necessity, regardless of residency." (D.E. 17, Exhibit B (emphasis removed.))

  Plaintiffs seek to certify a class "of all persons with disabilities who are or will be recipients of Illinois' Medicaid program, who reside in Medicaid-funded nursing homes and for whom motorized wheelchairs are medically necessary, but who have not been provided with such equipment." (D.E. 10 at 1.) On March 9, 2004, this Court issued a minute order requesting that the parties file briefs regarding "how the medical necessity issue would be administered" if the case were to be certified as a class action. (D.E. 11.) In response to the Court's order, Plaintiffs filed a brief stating that they "do not challenge how Defendant determines `medical necessity' for motorized wheelchairs but rather seek to ensure this determination is made for nursing home residents." (D.E. 13 at 1; see id. at 4 ("Thus, because the propriety of the evaluation is not at issue here, it is unnecessary and inappropriate for the Court to determine the `medical necessity' of class members for motorized wheelchairs, whether during class certification or at any other time.")) Plaintiffs have requested that the Court "issue a declaratory judgment that Defendant's acts or omissions violate Title XIX of the Social Security Act, Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act." (D.E. 8, Prayer for Relief.) In addition, Plaintiffs have also requested that the Court "issue preliminary and permanent injunctive relief to enjoin Defendant from denying Plaintiffs and class members necessary motorized wheelchairs and from failing to ensure that nursing facilities provide such wheelchairs." (Id.)

  For purposes of showing the size of the potential class, Plaintiffs have pointed the Court to the Minimum Data Set of the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services ("Minimum Data Set"), which is located at According to the Minimum Data Set, in the first quarter of 2004, there were 78,083 persons residing in Illinois nursing homes. See, at "Resident Counts by State." Of these, approximately 15,672 were totally dependent on others to leave the room (even with a wheelchair), 1,637 were "bedfast all or most of the time," and 465 have quadriplegia.*fn3 See id. at G1eA, G6a, Ilz. More than half of Illinois nursing homes residents receive Medicaid. Id. at A7a. On April 7, 2004, Defendant moved to dismiss the complaint on grounds that Plaintiffs have not stated claims under Title XIX, the ADA, or the Rehabilitation Act. (D.E. 17.) In his brief in opposition to class certification, Defendant stated that "[i]f Plaintiffs are found here not to have enforceable rights and their claims were dismissed, the basis for the Court's ruling would apply equally to any other member of the class." (D.E. 14 at 4.)


  "[A] district court has broad discretion to determine whether certification of a class is appropriate." Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). Nonetheless, a class action "may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of" the rule governing class actions, Federal Rule of Civil Procedure 23, have been satisfied. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). "[T]he party seeking class certification assumes the burden of demonstrating that certification is appropriate." Retired Chicago Police Ass'n, 7 F.3d at 596. "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal quotation omitted).


  Under Rule 23, an action may be maintained as a class action if all of the prerequisites of Rule 23(a) and at least one of the three elements of Rule 23(b) are satisfied. See Fed.R.Civ.P. 23. Rule 23(a) contains four express mandatory requirements. Id. First, the class must be so numerous that joinder of all members is impracticable ("numerosity"). Second, there must be questions of law or fact common to the class ("commonality"). Third, the claims or defenses of the representative parties must be typical of the claims or defenses of the class ("typicality"). Fourth, the Court must be satisfied that the representative parties and their counsel will fairly and adequately protect the interests of the class ("adequacy"). Id. In addition, "there is a `definiteness' requirement implied in Rule 23(a)" which dictates that "the description of a class [be] sufficiently definite to permit ascertainment of the class members." Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). Of the three alternative provisions of Rule 23(b), Plaintiffs are seeking to proceed under subsection (b)(2), which allows for certification where the requirements of Rule 23(a) have been met, and "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). For the reasons set forth below, the Court has concluded that Plaintiffs have satisfied the requirements of Rule 23(a) and Rule 23(b)(2).

  A. Numerosity

  "The crux of the numerosity requirement is not the number of interested persons per se, but the practicality of their joinder into a single suit." Arenson v. Whitehall Convalescent and Nursing Home, Inc., 164 F.R.D. 659, 663 (N.D. Ill. Feb. 28, 1996) (quoting Small v. Sullivan, 820 F. Supp. 1098, 1109 (S.D. Ill. 1992)). "When determining whether joinder is impracticable, the court considers not only the size of the class, but also its geographic dispersion, the relief sought, and the ability of individuals to bring their own claims." Flanagan v. Allstate Ins. Co., No. 01-1541, 2004 WL 1403817, *2 (N.D. Ill. June 22, 2004). "`Impracticable' does not mean `impossible,' but rather, extremely difficult and inconvenient." Danis v. USN Communications, Inc., 189 F.R.D. 391, 399 (N.D. Ill. 1999); accord, e.g., Wilson v. Collecto, Inc., 03-4673, 2004 WL 432509, *2 (N.D. Ill. Feb. 25, 2004). "While there is no threshold number required to prove numerosity, `permissive joinder is usually deemed impracticable where the class members number 40 or more.'" Id. (quoting Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D. Ill. 1995)). "The exact number of class members need not be pleaded or proved, but impracticability of joinder must be positively shown, and not merely speculative." Wilson, 03-4673, 2004 WL 432509 at *2 (quoting Keele v. Wexler, No. 95-3483, 1996 WL 124452, at *3 (N.D. Ill. Mar. 19, 1996), aff'd 149 F.3d 589 (7th Cir. 1998)). "[T]he court is able to make common-sense assumptions in determining numerosity." McCabe v. Crawford & Co., 210 F.R.D. 631, 644 (N.D. Ill. 2002); accord, e.g., Arenson, 164 F.R.D. at 662.

  Defendant contests numerosity on essentially two grounds. First, Defendant maintains that the information in the CMS's Minimum Data Set is insufficient because it is "based on data from residents of both Medicare and Medicaid certified nursing homes." (D.E. 14 at 6.) Second, Defendant argues that "[i]t may very well be the fact that the majority of these residents who are `bedfast all or most of the time' or `totally dependent on others to leave their room' are convalescing from broken hips, or have other age-related medical conditions that make it difficult or impossible to ambulate." (D.E. 33 at 4.) Thus, Defendant asserts, because such residents "may suffer from medical conditions that place them in those categories, but would not be considered disabled or have medical need for a motorized wheelchair," Plaintiff cannot rely on the statistics from the Minimum Data Set. (Id.) The Court respectfully disagrees with both of these arguments.

  As for the contention that the Minimum Data Set information is inadequate because it includes data from both Medicare and Medicaid certified nursing homes, this argument fails to account for the fact that, as noted above, the Minimum Data Set itself shows that over half of the persons residing in Illinois nursing homes are Medicaid recipients. It is therefore fair to assume for purposes of the numerosity analysis that half of the residents in the relevant categories receive Medicaid (indeed, the percentage of residents receiving Medicaid is likely higher within these categories than the overall population of Illinois nursing home residents because, by definition, the residents in these categories are among the most severely disabled and therefore are more likely to be in need of financial assistance). As noted above, it is appropriate for the Court to make such common sense assumptions in determining whether the numerosity requirement is met. See, e.g., Vergara v. Hampton, 581 F.2d 1281, 1283-84 (7th Cir. 1978) (holding that where plaintiffs "sought to bring the action on behalf of themselves `and all other nationals and citizens of foreign states living in Illinois who have been admitted into Illinois for permanent residence and who desire to apply and be eligible for appointment in the United States Civil Service'. . . . [t]he numerosity requirement was satisfied by the census figures as to resident aliens in Illinois and the number of federal Civil Service positions in that state.").*fn4 Applying this assumption yields an estimate that more than 7,500 nursing home residents receiving Medicaid were totally dependent on others to leave the room (even with a wheelchair), more than 800 were "bedfast all or most of the time," and more than 200 have quadriplegia (the larger numbers being cumulative of the smaller). The Court need not tack close to the wind in finding that the numerosity requirement is satisfied: if even the smallest of these numbers is used for numerosity purposes, it is evident that joinder would be impracticable.*fn5

  With respect to Defendant's argument that the data regarding the "totally dependent" and "bedfast" residents is deficient because the residents in these categories may have medical conditions, such as convalescing from a broken hip, for which a motorized wheelchair would not be medically necessary, this argument fails for at least two independent reasons. First, as noted above, the Minimum Data Set shows that approximately 465 nursing home residents in Illinois have quadriplegia, of which it can be reasonably assumed that about half receive Medicaid. Defendant does not dispute that quadriplegia is a serious enough condition to medically warrant a motorized wheelchair. Indeed, three of the named Plaintiffs suffer from quadriplegia, (D.E. 8, ¶¶ 9, 11, 12), and Defendant not only did not raise this as a basis to dispute their adequacy as named Plaintiffs, but, as noted above, Defendant provided each of these Plaintiffs with a motorized wheelchair subsequent to ...

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