One Class Isn’t Enough in Medicaid-Waiver Suit

     (CN) – A federal judge refused to certify a class of developmentally disabled Floridians who challenged the manner in which the state administers its Home and Community Based Services Waiver program.



     The proposed class sought to include developmentally disabled people who receive services in institutions or institutional-like settings and others who reside in the community without state services. U.S. District Judge Richard Smoak in Tallahassee decided, however, that the groups may have divergent interests.
     Representing thousands of developmentally disabled individuals eligible for Medicaid, the lawsuit takes issue with Florida’s lengthy waitlist and limited funding of the waiver program. Some candidates must wait more than five years to get into the program, and some institutionalized patients are never enrolled, according to the complaint.
     Florida had argued that the community plaintiffs lacked standing to sue, because they were neither institutionalized nor at risk of being institutionalized.
     Though Smoak agreed earlier this month that community-based plaintiffs may lack standing, he rebuffed the state’s argument in an Oct. 14 order. Smoak ruled that the community plaintiffs may sue the state for delaying their access to services for years.
     “Defendants miss the mark,” Smoak wrote on Oct. 14. “It is not the threat of institutionalization which is a cognizable injury. Rather, the ‘waiting lists for enrollment on the DD Waivers where [the community plaintiffs] languish for years without services’ are the injury.” (Brackets in complaint).
     The plaintiffs cannot base their standing on the threat of institutionalization, Smoak nevertheless concluded, calling such claims “speculative” and “not relevant.”
     Smoak noted several disparities between the two subclasses of plaintiffs. He ruled that the institutionalized plaintiffs have a valid discrimination claim under the Americans with Disabilities Act, but the community plaintiffs may not be able to prove that exclusion from community based programs qualifies as discrimination.
     “Answering the uncertainty in the community plaintiffs’ ADA claim will be central to their case, but inconsequential to the institutional plaintiffs,” the order states. “This difference in established law is fatal to creating a class which contains both groups.”
     Florida law also treats the two groups differently, meaning that the enrollment of institutional and community plaintiffs in the waiver program is limited for different reasons.
     The state establishes priority categories for those seeking waiver services, placing the homeless and those living in an unsafe environment higher on the list. Those with competent caregivers fill lower-priority categories. Thus, some community-based plaintiffs whose caregivers are no longer able to care for them may fall into a high priority category, while the institutionalized plaintiffs may never qualify for crisis categorization because of their placement in intermediate care facilities, according to the order.
     Thus limited enrollment in the waiver program does not affect the two subclasses in the same way. “The harm of not being in the DD Waiver program has different consequences for the two classes of plaintiffs,” Smoak wrote. “The community plaintiffs are largely where they would be if they were in the program. For them, the issue is mainly about resources. The institutional plaintiffs are in a completely different situation. The issue for them isn’t so much funding as it is the actual setting.”
     There is also a conflict of interest between the two groups since they are competing for the limited number of slots in the waiver program. While the plaintiffs in higher-risk categories want to keep the current prioritization system, the lower-priority candidates, like some of the community plaintiffs, want to change the status quo so they can qualify for the slots, the order states.
     Smoak refused to combine the community plaintiffs and institutional plaintiffs into one class, finding they may have diametrically opposed interests.

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