Meza v. Marstiller

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BLANCA MEZA, by and through her

Guardian, Aide Hernandez, DESTINY

BELANGER, by and through her

Guardian, Julie Belanger, on behalf of

themselves and all others similarly

situated, and DISABILITY RIGHTS

FLORIDA, INC.,

Plaintiffs,

-vs- Case No. 3:22-cv-783-MMH-LLL

SIMONE MARSTILLER, in her official

Capacity as Secretary for the FLORIDA

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Defendant.

_____________________________________/

ORDER

THIS CAUSE is before the Court on Plaintiffs’ Motion for Class

Certification (Doc. 2; Motion), filed on July 17, 2022. In the Motion, Plaintiffs

ask the Court to certify this matter as a class action pursuant to Rule 23,

Federal Rules of Civil Procedure (Rule(s)). Defendant Simone Marstiller, in

her official capacity as Secretary for the Florida Agency for Health Care

Administration (AHCA) filed a response in opposition to the Motion on

September 8, 2022. See Response to Motion for Class Certification (Doc. 31;

Response). With leave of Court, see Order (Doc. 34), Plaintiffs Blanca Meza,

by and through her guardian, Aide Hernandez; Destiny Belanger, by and

through her Guardian, Julie Belanger; and Disability Rights Florida filed a

reply in support of their Motion on October 6, 2022. See Plaintiffs’ Reply to

Defendant’s Response to Plaintiffs’ Motion for Class Certification (Doc. 35;

Reply). In addition, the Court notes that AHCA filed a Request for Oral

Argument (Doc. 32). Upon review, the Court does not find oral argument to be

necessary to the resolution of the Motion. Accordingly, this matter is ripe for

review.

I. Background

Plaintiff Blanca Meza is twenty-two years old and diagnosed with “spastic

quadriplegic cerebral palsy, muscle spasticity, neuromuscular scoliosis, and

partial epilepsy.” See Verified Class Action Complaint for Declaratory and

Injunctive Relief (Doc. 1; Verified Complaint) ¶ 4. Meza has lived her entire

life at home with her family, where her mother, Aide Hernandez, acts as her

“24-7 care provider.” See Motion, Ex. 4: Declaration of Aide Hernandez (Doc.

2-4; Hernandez Decl.) ¶¶ 1, 3, 25. Plaintiff Destiny Belanger is also twenty-

two years old and is diagnosed with “encephalopathy, acquired brain injury,

non-intractable epilepsy, intellectual disability, and expressive language

disorder.” See Motion, Ex. 5: Declaration of Julie Belanger (Doc. 2-5; Belanger

Decl.) ¶¶ 2-3. She, too, lives at home with her family, where she has lived

almost her entire life. Id. ¶¶ 1, 20. And her mother, Julie Belanger, also

provides her with “24-7” care. Id. ¶¶ 2, 20. As low-income Florida residents

with significant disabilities, both Belanger and Meza are enrolled in Florida’s

Medicaid program. See Verified Complaint ¶ 1; see also Belanger Decl. ¶¶ 4-

5; Hernandez Decl. ¶¶ 5-6.

Meza and Belanger are both incontinent of bowel and bladder. See

Verified Complaint ¶ 11; Belanger Decl. ¶ 12. Their primary care physician,

Dr. Rita Nathawad, has prescribed incontinence briefs and underpads to both

women to treat their incontinence and prevent secondary effects such as skin

breakdowns or rash. See Belanger Decl. ¶ 12; Hernandez Decl. ¶ 12. It is Dr.

Nathawad’s opinion that incontinence supplies are medically necessary for both

women. See Motion, Exs. 6-7. Significantly, the Florida Medicaid program

“authorized incontinence supplies, including adult incontinence briefs and

underpads, as medically necessary and reimbursed the supplies” for each

woman until they reached the age of twenty-one. See Hernandez Decl. ¶ 14;

Belanger Decl. ¶ 13. However, two months after their twenty-first birthdays,

Florida Medicaid stopped covering Belanger and Meza’s incontinence supplies.

See Hernandez Decl. ¶ 15; Belanger Decl. ¶ 14.

Specifically, in August of 2021, Meza’s Medicaid managed care plan sent

a letter to Dr. Nathawad denying Meza’s request for authorization of coverage

for disposable underpads and disposable incontinence briefs because “[t]he

service is not covered by your plan.” See Hernandez Decl. ¶¶ 16-17, Ex. A.

Likewise, in May of 2021, Fletcher’s Home Care informed Belanger’s mother

that it could not fill Belanger’s prescription for incontinence briefs because

“Florida Medicaid does not cover incontinence supplies for beneficiaries over

age 21.” See Belanger Decl. ¶ 15. Indeed, Plaintiffs allege that, with limited

exceptions, Florida Medicaid categorically does not cover incontinence supplies

for Medicaid recipients aged 21 and older (i.e., adults). See Verified Complaint

¶¶ 4, 44. However, according to Plaintiffs, AHCA does provide Medicaid

coverage of medically necessary incontinence supplies for Medicaid-enrolled

adults who reside in a nursing facility. See id. ¶¶ 5, 45.1 AHCA does not

1 The Court notes that in the Response, AHCA states that incontinence supplies are

covered for Medicaid-recipients who “are eligible for 24-hour medical and nursing care in a

residential setting, based on, among other things, a medical necessity determination for the

same.” See Response at 2-3 (emphasis added). This refers to the coverage available in

nursing facilities. See id. at 4 n.2 (citing Medicaid Nursing Facility Services Coverage Policy

(May 2016)). The Court notes the slight discrepancy between Plaintiffs’ description of the

exception as applying to individuals who reside in nursing facilities, and AHCA’s description

of the exception as applying to individuals “eligible for” nursing facility services. It is unclear

from the Response whether this difference in wording is intended to convey a difference in

meaning. Nevertheless, the policy AHCA cites appears to provide coverage for incontinence

supplies only to individuals actually occupying a bed in a nursing facility. See Medicaid

Nursing Facility Services Coverage Policy, at 3 (May 2016) available at

https://www.flrules.org/gateway/readRefFile.asp?refId=6634&filename=Nursing_Facility_Se

rvices_Coverage_Policy_Proposed.pdf.

As to the other exceptions, it is undisputed that AHCA provides Medicaid coverage of

medically necessary incontinence supplies for adults who: 1) have been diagnosed with AIDS

and have a history of AIDS-related opportunistic infection, 2) are enrolled in the Familial

Dysautonomia program, or 3) are enrolled in one of Florida’s other Home and Community

Based Services (HCBS) Medicaid Waiver programs. See Verified Complaint ¶¶ 45-52; see

also Response at 3-4.

dispute that under its current policies, Medicaid-recipients twenty-one years of

age or older are generally not eligible for incontinence supplies. See Response

at 3-4.

Through this action, Belanger and Meza, on behalf of themselves and

others similarly situated, along with Plaintiff Disability Rights Florida (DRF),

seek to compel AHCA “to cover medically necessary incontinence supplies

through Florida’s Medicaid program.” See Verified Complaint ¶ 1. In Count

One, Plaintiffs contend that AHCA’s “policy to deny Plaintiffs, and all similarly

situated putative class members, coverage of incontinence supplies under

Florida’s State Plan Medicaid program violates the Medicaid Act’s mandatory

home health care requirement[2] . . . in that it eliminates coverage of a

mandatory home health service—incontinence supplies—for categorically

needy non-institutionalized adult Medicaid beneficiaries.” See id. ¶ 103.

Plaintiffs seek to enforce these provisions of the federal Medicaid Act pursuant

to 42 U.S.C. § 1983. Id. In Counts Two and Three, Plaintiffs allege that

AHCA’s policy of covering incontinence supplies for individuals with disabilities

living in institutions such as nursing homes, but not those living in the

community, violates Title II of the Americans with Disabilities Act (ADA)3 as

2 See 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(10)(D), 1396d(a)(4).

3 See 42 U.S.C. §§ 12131-12134; 28 C.F.R. §§ 35.130(b)(3), (b)(7), (b)(8), and (d).

well as Section 504 of the Rehabilitation Act (RA).4 Id. ¶¶ 107, 111. Based on

these claims, Plaintiffs seek entry of a declaratory judgment that AHCA’s policy

is invalid as it violates the Medicaid Act, Title II of the ADA, and Section 504 of

the RA, and a permanent injunction prohibiting AHCA from “implementing its

policy of denying Medicaid coverage of medically necessary incontinence

supplies to the named Plaintiffs and the putative class.” Id. at 29-30.

II. Underlying Claims5

A. Medicaid Act

Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., known as

the Medicaid Act, “is a federal aid program designed to provide federal funding

to States that choose to reimburse certain costs of medical treatment for needy

persons.” See Martes v. Chief Exec. Officer of S. Broward Hosp. Dist., 683 F.3d

1323, 1324 (11th Cir. 2012). Although state participation is voluntary, “if a

State decides to participate, it must comply with all federal statutory and

regulatory requirements.” Id. A state Medicaid plan “defines both the

categories of individuals eligible for benefits and the categories of services that

4 See 29 U.S.C. § 794(a); 45 C.F.R. § 84.4(b)(2) and (b)(4), and 29 U.S.C. § 794a.

5 Because it will aid in the analysis of the Rule 23 factors, the Court first summarizes

the law applicable to the claims raised in this action. The Court need not and does not

express any opinion on whether Plaintiffs will be able to prevail on these claims.

are covered for those different groups.” See Davis v. Shah, 821 F.3d 231, 238

(2d Cir. 2016). As to individuals, the Medicaid Act requires states

to provide medical assistance to the “categorically needy,” a group

that includes “individuals eligible for cash benefits under the Aid

to families with Dependent Children (AFDC) program, the aged,

blind, or disabled individuals who qualify for supplemental

security income (SSI) benefits, and other low-income groups such

as pregnant women and children entitled to poverty-related

coverage.”

Martes, 683 F.3d at 1324 (quoting Pharma. Research & Mfrs. of Am. v. Walsh,

538 U.S. 644, 651 n.4 (2003)); 42 U.S.C. § 1396a(a)(10)(A)(i). In addition,

states have the option of providing medical assistance to the “medically needy,”

meaning individuals “‘who meet the nonfinancial eligibility requirements for

inclusion in one of the groups covered under Medicaid, but whose income or

resources exceed the financial eligibility requirements for categorically needy

eligibility.’” Martes, 683 F.3d at 1324-25 (quoting Pharma. Research & Mfrs.

of Am., 538 U.S. at 651 n.5); 42 U.S.C. § 1396a(a)(10)(C). “Florida has elected

to provide medical assistance to the medically needy as well as the categorically

needy.” Martes, 683 F.3d at 1325.

As to the services provided under a state Medicaid plan, “the Medicaid

Act similarly specifies certain categories of mandatory and optional medical

care.” See Davis, 821 F.3d at 239; 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a). As

relevant to this action:

[a] state is required to provide some benefits to all categorically

needy individuals, including, among others, nursing facility

services for persons over 21 and “home health care services.” 42

U.S.C. § 1396a(a)(10)(A); id. §§ 1396d(a)(4), (7). While a state need

not provide either service to the medically needy, any state that

elects to provide nursing facilities services to those beneficiaries

must also provide home health services. Id. § 1396a(a)(10)(D); 42

C.F.R. § 440.220(a)(3).

See Davis, 821 F.3d at 239; see also 42 C.F.R. § 441.15(b)(1), (3).

Significantly, “home health services” must include coverage for “[m]edical

supplies, equipment, and appliances suitable for use in any setting in which

normal life activities take place . . . .” See 42 C.F.R. § 440.70(b)(3); see also 42

C.F.R. § 441.15(a)3). Medical supplies are defined as “health care related

items that are consumable or disposable, or cannot withstand repeated use by

more than one individual, that are required to address an individual medical

disability, illness or injury.” Id. § 440.70(b)(3)(i). Moreover, while “[s]tates

can have a list of preapproved medical equipment supplies and appliances for

administrative ease,” the regulations prohibit states “from having absolute

exclusions of coverage on medical equipment, supplies, or appliances.” Id. §

440.70(b)(3)(v). In accordance with the Medicaid Act, Florida law recognizes

its obligation to provide Medicaid coverage for home health care services,

including “supplies, appliances, and durable medical equipment, necessary to

assist a recipient living at home.” See Fla. Stat. § 409.905(4). Among other

things, the Florida statute specifies that to qualify for coverage, the home

health services must be “medically necessary . . . .” Id. § 409.905(4)(c). And

indeed, “[f]ederal law allows Medicaid plans to apply a ‘medical necessity’ test

to all applicants.” See Murray v. Auslander, 244 F.3d 807, 809 n.2 (11th Cir.

2001); 42 C.F.R. § 440.230(d).

Plaintiffs contend that incontinence supplies are “medical supplies”

within the meaning of the above regulations. See Motion at 6. As such,

Plaintiffs assert that AHCA’s policy categorically excluding incontinence

supplies from Medicaid coverage violates the Medicaid Act because it

“eliminates coverage of a mandatory home health service—incontinence

supplies—for categorically needy non-institutionalized adult Medicaid

beneficiaries.” See Verified Complaint ¶ 103; see also, e.g., Alvarez v. Betlach,

572 F. App’x 519, 520-21 (9th Cir. 2014); Hiltibran v. Levy, 793 F. Supp. 2d

1108, 1115 (W.D. Mo. 2011).6 And Plaintiffs argue that this policy violates the

Medicaid Act’s prohibition on absolute exclusions of coverage for medical

supplies. See Response at 8. In the Response, AHCA contends that it has

“significant discretion to design and administer [Florida’s] Medicaid programs,

even with respect to the provision of mandatory services.” See Response at 5.

In support, AHCA cites 42 C.F.R. § 440.230 for the proposition that a state may

6 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive effects”).

“place appropriate limits on a service based on such criteria as medical

necessity or on utilization control procedures.” See Response at 5.

B. Title II of the ADA and Section 504 of the RA

Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132.10.7 “To

state a claim under Title II of the ADA, a plaintiff must allege: (1) that [s]he is

a ‘qualified individual with a disability;’ (2) that [s]he was ‘excluded from

participation in or . . . denied the benefits of the services, programs, or activities

of a public entity’ or otherwise ‘discriminated [against] by such entity;’ (3) ‘by

reason of such disability.’” Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001)

(quoting 42 U.S.C. § 12132)). In Olmstead v. L.C. ex rel. Zimring, the Supreme

Court considered the application of this public services antidiscrimination

provision in circumstances comparable to those presented by this case:

we confront the question whether the proscription of

discrimination may require placement of persons with mental

disabilities in community settings rather than in institutions.

7 Plaintiffs’ RA claim is essentially the same as their ADA claim, and discrimination

claims of this kind are analyzed similarly under the two acts. See Allmond v. Akal Sec., Inc.,

558 F.3d 1312, 1316 n.3 (11th Cir. 2009) (“Because the same standards govern discrimination

claims under the Rehabilitation Act and the ADA, we discuss those claims together and rely

on cases construing those statutes interchangeably.”). Accordingly, the Court will refer

primarily to the ADA for the sake of brevity.

Olmstead, 527 U.S. 581, 587 (1999). The Court answered this question with a

“qualified yes.” See id. In doing so, the Court held that the unjustified

institutional isolation of persons with disabilities is a form of discrimination by

reason of disability. See id. at 597, 600-01; see also Long v. Benson, No.

4:08cv26-RH/WCS, 2008 WL 4571904, at *1 (N.D. Fla. Oct. 14, 2008) (“[A] state

violates the Americans with Disabilities Act if it unnecessarily isolates disabled

individuals in institutions as a condition of providing them public assistance.”).

To avoid the discrimination inherent in the unjustified isolation of

disabled persons, public entities are required to make reasonable modifications

to policies, practices, and procedures for services they elect to provide.

Nevertheless, the Olmstead Court recognized that a state’s responsibility, once

it determines to provide community-based treatment, is not without limits.

See Olmstead, 527 U.S. at 603.8 Rather, the regulations implementing the

ADA require only “reasonable modifications” and permit a state to refuse

alterations to programs that will result in a fundamental alteration of the

program or service. See id. In considering whether a proposed modification

is a reasonable modification, which would be required, or a fundamental

8 “‘[W]hile “[t]he section of Justice Ginsburg’s opinion discussing the state’s

fundamental alteration defense commanded only four votes . . . [b]ecause it relied on narrower

grounds than did Justice Stevens’ concurrence or Justice Kennedy’s concurrence, both of

which reached the same ultimate result, Justice Ginsburg’s opinion controls.”’” Arc of

Washington State Inc. v. Braddock, 427 F.3d 615, 617 (9th Cir. 2005) (quoting Sanchez v.

Johnson, 416 F.3d 1051, 1064 n.7 (9th Cir. 2005), quoting Townsend v. Quasim, 328 F.3d 511,

519 n.3 (9th Cir. 2003)).

alteration, which would not, the Olmstead Court determined that a simple

comparison showing that a community placement costs less than an

institutional placement is not sufficient to establish reasonableness because it

overlooks other costs that the state may not be able to avoid. See id. at 604.

The Court explained,

Sensibly construed, the fundamental-alteration component of the

reasonable-modifications regulation would allow the State to show

that, in the allocation of available resources, immediate relief for

the plaintiffs would be inequitable, given the responsibility the

State has undertaken for the care and treatment of a large and

diverse population of persons with mental disabilities.

Id. Indeed, the Court recognized that the fundamental alteration defense

must be understood to allow some leeway to maintain a range of facilities and

services. See id.

Thus, having considered the ADA as well as the applicable regulations,

the Court concluded that the ADA requires states to provide community based

treatment for persons with disabilities when: (1) the state’s treatment

professionals have determined that community-based services are appropriate

for an individual; (2) the individual does not oppose such services; and (3) the

services can be reasonably accommodated, taking into account (a) the resources

available to the state, and (b) the needs of others with disabilities. See id. at

602-04, 607; Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d

374, 379-80 (3d Cir. 2005); Frederick L. v. Dep’t of Pub. Welfare of the

Commonwealth of Pa., 364 F.3d 487, 493 (3d Cir. 2004); Fisher v. Okla. Health

Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003). When these requirements

are met, states must provide services to individuals in community settings

rather than in institutions. See Fisher, 335 F.3d at 1181.

As relevant in this case, disability discrimination claims arising out of

Olmstead are not limited to individuals who are institutionalized at the time of

the lawsuit. See Davis, 821 F.3d at 262. Rather, “a plaintiff may state a valid

claim for disability discrimination by demonstrating that the defendant’s

actions pose a serious risk of institutionalization for disabled persons.” Id. at

263. As stated in Davis, “a plaintiff establishes a ‘sufficient risk of

institutionalization to make out an Olmstead violation if a public entity’s failure

to provide community services . . . will likely cause a decline in health, safety,

or welfare that would lead to the individual’s eventual placement in an

institution.’” Id. at 262-63 (quoting U.S. Dep’t of Justice, Statement of the

Department of Justice on Enforcement of the Integration Mandate of Title II of

the Americans with Disabilities Act and Olmstead v. L.C., Q. 6 (last updated

June 22, 2011)).9 As such, “individuals who must enter institutions to obtain

9 Congress directed the Department of Justice (DOJ) to issue regulations

implementing Title II and the integration mandate derives from those regulations. As such,

courts have given weight to the DOJ’s interpretation of that provision. See Olmstead, 527

U.S. at 597-98 (“Because the Department is the agency directed by Congress to issue

regulations implementing Title II its views warrant respect.” (internal citation omitted));

Davis, 821 F.3d at 263; Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013).

Medicaid services for which they qualify may be able to raise successful Title II

and Rehabilitation Act claims because they face a risk of institutionalization.”

See Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013).

III. Class Certification

A. Applicable Law

Pursuant to Rule 23(a), class certification is appropriate if “(1) the class

is so numerous that joinder of all members would be impracticable; (2) there are

questions of fact and law common to the class; (3) the claims or defenses of the

representatives are typical of the claims and defenses of the unnamed members;

and (4) the named representatives will be able to represent the interests of the

class adequately and fairly.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d

1181, 1187-88 (11th Cir. 2003); Rule 23(a)(1)–(4). These four requirements “are

designed to limit class claims to those ‘fairly encompassed’ by the named

plaintiffs’ individual claims.” Piazza v. Ebsco Inds., Inc., 273 F.3d 1341, 1346

(11th Cir. 2001) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156

(1982)). The party seeking class certification must establish these four

prerequisites to class certification, commonly referred to as the “numerosity,

commonality, typicality, and adequacy of representation” requirements, as well

as one of the alternative requirements set forth in Rule 23(b). See Valley Drug,

350 F.3d at 1188. “Failure to establish any one of these four factors and at least

one of the alternative requirements of Rule 23(b) precludes class certification.”

Id. Here, Plaintiffs seek certification of a Rule 23(b)(2) class, such that they

must also show that “the party opposing the class has acted or refused to act on

grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.”

See Rule 23(b)(2). In addition, the Eleventh Circuit Court of Appeals instructs

that all classes “must present a named plaintiff who has standing to bring the

claim” and “must be ‘adequately defined and clearly ascertainable.’” See AA

Suncoast Chiropractic Clinic, P.A. v. Progressive Am. Ins. Co., 938 F.3d 1170,

1174 (11th Cir. 2019) (quoting Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304

(11th Cir. 2012)).10

B. Standing

Prior to analyzing whether class certification is appropriate, courts must

address the threshold question of whether the individual plaintiff has

constitutional standing to raise his or her claims. See Griffin v. Dugger, 823

F.2d 1476, 1482 (11th Cir. 1987) (“Only after the court determines the issues

for which the named plaintiffs have standing should it address the question

whether the named plaintiffs have representative capacity, as defined by Rule

10 The Court notes that some district courts have questioned whether the

ascertainability requirement applies to classes certified under Rule 23(b)(2). See Braggs v.

Dunn, 317 F.R.D. 634, 671-72 (M.D. Ala. 2016); Jones v. Desantis, No. 4:19cv300-RH/MJF,

2020 WL 5646124, at *5-6 (N.D. Fla. Apr. 7, 2020). The Court need not reach this issue

because as discussed below, the class certified here is ascertainable.

23(a), to assert the rights of others.”). At the class certification stage, all that

is required is that “at least one named class representative has Article III

standing to raise each class claim.” See Prado-Steiman ex rel. Prado v. Bush,

221 F.3d 1266, 1279-80 (11th Cir. 2000); Cordoba v. DirecTV, LLC, 942 F.3d

1259, 1273 (11th Cir. 2019). In the Motion, Plaintiffs assert that Meza and

Belanger have standing to assert their claims because AHCA has refused their

requests for Medicaid coverage of incontinence supplies to which they claim to

be statutorily entitled, forcing them to bear the cost of these supplies out of

pocket, resulting in financial harm and exposing them to the risk of medical

complications and potential institutionalization if they are no longer able to

afford the supplies. See Motion at 11-12. AHCA does not challenge Plaintiffs’

standing in the Response. See Response at 1-3. Nevertheless, because

standing “implicates the Court’s jurisdiction to order the requested relief,” the

Court must consider Meza and Belanger’s standing “even in the absence of an

express challenge by [AHCA].” See Anderson v. Garner, 22 F. Supp. 2d 1379,

1387-88 (N.D. Ga. 1997).

To establish standing a plaintiff must show three elements: (1) that she

has suffered an “injury-in-fact,” (2) that there is a “causal connection between

the asserted injury-in-fact and the challenged action of the defendant,” and (3)

that a favorable decision by the court will redress the injury. See Shotz v.

Cates, 256 F. 3d 1077, 1081 (11th Cir. 2001) (internal citations omitted). “These

requirements are the ‘irreducible minimum’ required by the Constitution for a

plaintiff to proceed in federal court.” Id. at 1081 (quoting Ne. Fla. Chapter of

Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 664

(1993)) (internal citations omitted). Additionally, in an action for injunctive

relief, a plaintiff has standing only if the plaintiff establishes “a real and

immediate–as opposed to a merely conjectural or hypothetical–threat of future

injury.” See Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F. 3d 1262,

1284 (11th Cir. 2001). A complaint that includes "only past incidents" is

insufficient to allege a real and immediate threat of future injury. See Shotz,

256 F. 3d at 1081.

The allegations of the Verified Complaint as summarized above

demonstrate that both Meza and Belanger have been and will continue to be

denied access to Medicaid coverage for their incontinence supplies based on

their age. In addition, Plaintiffs present evidence that without these supplies

the quality of life for both women would be “immensely compromised” and they

would be subjected to a greater risk for “skin integrity conditions, i.e. rashes,

skin wounds, genitourinary and other perineum infections.” See Motion, Ex. 6

at 2, Ex. 7 at 2. Notably, Meza provides evidence that the cost of incontinence

supplies poses a financial hardship to her family such that her caregiver must

ration supplies, putting the caregiver in fear that this practice will cause Meza

to “develop a rash and possibly skin breakdown.” See Hernandez Decl. ¶¶ 21-

24. Her caregiver fears that without access to incontinence supplies Meza

would suffer from medical complications that would lead to hospitalization and

nursing home care. Id. ¶ 24. Belanger’s caregiver explains that her family

currently has means to pay for Belanger’s incontinence supplies but absent such

means, “the consequences would be grave.” See Belanger Decl. ¶ 18.

Specifically, her caregiver explains that the incontinence briefs prevent medical

complications that would lead to hospitalization and nursing home care. Id.

The allegations show that if Meza and Belanger prevail and the Court enjoins

AHCA’s age-based policy, they will have the opportunity to access Medicaid

coverage for their incontinence supplies while continuing to live at home.

Upon review, and absent any challenge from AHCA, the Court is satisfied that

Meza and Belanger have standing to pursue their claims. See Pashby v.

Cansler, 279 F.R.D. 347, 351-52 (E.D.N.C. 2011).

C. Is the Class Adequately Defined and Clearly

Ascertainable?

“Class representatives bear the burden to establish that their proposed

class is ‘adequately defined and clearly ascertainable,’ and they must satisfy

this requirement before the district court can consider whether the class

satisfies the enumerated prerequisites of Rule 23(a).” See Cherry v. Dometic

Corp., 986 F.3d 1296, 1302 (11th Cir. 2021). In Cherry, the Eleventh Circuit

explained that “a proposed class is ascertainable if it is adequately defined such

that its membership is capable of determination.” Id. at 1304.11 In contrast,

“[a] class is inadequately defined if it is defined through vague or subjective

criteria.” Id. at 1302.

Here, Plaintiffs propose the following class definition:

All Florida Medicaid recipients whose prescription for

incontinence supplies has been or will be denied Medicaid coverage

based on Defendant’s exclusion of those supplies for recipients

aged 21 and older.

See Motion at 1. As currently drafted, this definition is not vague or premised

on subjective criteria. Whether an individual is a Florida Medicaid recipient

and has a prescription for incontinence supplies are objective facts capable of

determination. Likewise, whether Medicaid coverage for that prescription was

or will be denied based on the age of the individual is a fact plainly capable of

determination given the alleged state policy. And moreover, federal

regulations require state agencies to inform individuals of the reasons

supporting their decisions. See 42 C.F.R. §§ 431.206(c)(2), 431.210(b),

438.404(b)(2).

Nevertheless, AHCA contends that the proposed class definition is not

ascertainable because it is overbroad. See Response at 13. Specifically,

AHCA argues that “it is impossible to determine which Medicaid-recipients (1)

11 The Cherry court discussed the requirements for class certification in the context of

a request for certification under Rule 23(b)(3). Id. at 1300.

have a medical need for incontinence supplies . . . , and (2) are at risk of

institutionalization.” Id. AHCA contends that medical necessity and risk of

institutionalization require individualized determinations, and as such, argues

that the class is not ascertainable and class relief is inappropriate. Id.

Significantly, however, the class definition as currently proposed does not

incorporate medical necessity and risk of institutionalization within its terms.

Thus, AHCA’s ascertainability argument first hinges on whether it is necessary

to include those limitations in the class definition. The Court finds that it is

not.

As to medical necessity, AHCA asserts that “there is simply no

meaningful way to determine which Medicaid-recipients over the age of 21 have

a medical need for incontinence supplies.” See Response at 15. AHCA

appears to contend that the class definition must include a medical necessity

limitation because AHCA has the discretion to limit the provision of services to

those that are “medically necessary.” Id. But Plaintiffs’ Medicaid Act claim

is premised on their challenge to the validity of a policy which categorically

excludes incontinence supplies from coverage. Thus, medical necessity is

relevant to Plaintiffs’ claim only to the extent AHCA has determined that

incontinence supplies are not medically necessary for adults by definition.

Whether such a determination is permissible under federal law is a question

common to the entire class and will not depend on the medical necessity of such

supplies for any one individual class member. Significantly, Plaintiffs do not

seek declaratory or injunctive relief that would affirmatively require AHCA to

cover the incontinence supplies for any particular individual, relief that would

likely require a showing of individual medical necessity. Rather, Plaintiffs

seek only to require AHCA to end the categorical coverage exclusion, to which

all class members are subject. If Plaintiffs are successful, class members

would then have the opportunity to establish their individual medical necessity

through the prior authorization process.

Similarly, AHCA argues that “the determination of whether an individual

is at risk of institutionalization is a highly-individualized factual determination

that renders the class insufficient for certification.” See Response at 16. But

again, AHCA fails to explain why it is necessary under the circumstances of this

case to include the “at risk” limitation in the class definition. Significantly, the

putative class is limited to individuals who have been or will be denied coverage

for medically prescribed incontinence supplies based on the policy exclusion.

Thus, while individual circumstances may differ, all class members are subject

to the same harm from the same policy—lack of coverage for medically

prescribed incontinence supplies.12 Whether this specific categorical exclusion

12 For this reason, this case is distinguishable from A.R. ex rel. Root v. Dudek on which

AHCA relies. See Response at 13-15 (citing A.R. ex rel. Root v. Dudek, No. 12-60460-CIV-

ZLOCH/HUNT, 2015 WL 11143082, at *1 (S.D. Fla. Aug. 7, 2015) adopted in part, rejected in

part by 2016 WL 3766139 (S.D. Fla. Feb. 29, 2016)). The proposed class in A.R. included “[a]ll

current and future Medicaid recipients in Florida under the age of 21, who are (1)

“places class members at serious risk of unnecessary institutionalization” can

“properly turn on systemwide proof.” See Kenneth R. ex rel. Tri-County CAP,

Inc./GS v. Hassan, 293 F.R.D. 254, 267 n.4 (D.N.H. 2013); see also Pashby, 279

F.R.D. at 353 (“A determination that [the challenged policy] is valid or invalid

on its face will resolve the claims of all potential plaintiffs, irrespective of their

particular factual circumstances.”). AHCA has not shown why individualized

inquiries will be necessary to resolve the common question of whether this

categorical policy violates the integration mandate of the ADA. Rather,

whether this policy exposes class members to the risk of unnecessary

institutionalization “is a central and common contention whose resolution will

defeat or advance the claims of all class members . . . .” See Kenneth R., 293

F.R.D. at 267. As such, on the current record, the Court does not find it

appropriate to include an additional “at risk” qualifier in the class definition

beyond that which is implicit in the denial of coverage for prescribed

incontinence supplies. Nevertheless, if subsequent developments in the case

institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of

institutionalization in nursing facilities.” See A.R., 2015 WL 11143082, at *2. The court in

A.R. found that the class definition carried “an amorphous ‘at risk’ indicator which is elusive

and lacks objective criteria defining the class.” See id. at *5. Significantly, under the

circumstances of that case, determining whether a class member was “at risk” would require

“a fact intensive and case specific” inquiry into whether any particular disabled child had been

injured by the challenged policies. Id. at *6. Absent such an inquiry, the class would include

children “who have not had their community services materially reduced by the allegedly

deficient policies” and thus were unharmed by the challenged policies and therefore not at risk

of unnecessary institutionalization. Id. at *5-6. Unlike A.R., the class here is defined by the

harm incurred by every class member—the denial of Medicaid coverage for medically

prescribed incontinence supplies based on age.

indicate that the addition of this limitation is warranted, the Court “retains the

authority to modify the class description, or even decertify the class . . . .” See

Kenneth R., 293 F.R.D. at 272; see also Rule 23(c)(1)(C).

D. Numerosity

The proper focus for the numerosity requirement is whether the joinder

of all class members would be impracticable in view of their number and all

other relevant factors. Phillips v. Joint Legis. Comm., 637 F.2d 1014, 1022 (5th

Cir. Unit A Feb. 1981).13 “[T]he focus of the numerosity inquiry is not whether

the number of proposed class members is ‘too few’ to satisfy the Rule, but

‘whether joinder of proposed class members is impractical.’” Bacon v. Stiefel

Lab., Inc., 275 F.R.D. 681, 690 (S.D. Fla. 2011) (quoting Armstead v. Pingree,

629 F. Supp. 273, 279 (M.D. Fla. 1986)); Leszczynski v. Allianz Ins., 176 F.R.D.

659, 669 (S.D. Fla. 1997) (The numerosity requirement “does not demand that

joinder would be impossible, but rather that joinder would be extremely difficult

or inconvenient.”). Factors to be considered are the geographic dispersion of

the class members, judicial economy, and the ease of identifying the members

of the class and their addresses. Id. “Although mere allegations of

numerosity are insufficient to meet this prerequisite, a plaintiff need not show

13 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit

handed down prior to the close of business on September 30, 1981.

the precise number of members in the class.” Evans v. U.S. Pipe & Foundry

Co., 696 F.2d 925, 930 (11th Cir. 1983). Instead, a plaintiff is required to “show

some evidence of or reasonably estimate the number of class members” beyond

“[m]ere speculation, bare allegations, and unsupported conclusions.” Barlow

v. Marion Cnty. Hosp. Dist., 88 F.R.D. 619, 625 (M.D. Fla. 1980); see also Vega

v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009). “In general terms,

the Eleventh Circuit has found that ‘less than twenty-one [prospective class

members] is inadequate [while] more than forty [is] adequate.’” See Bacon, 275

F.R.D. at 690 (citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th

Cir. 1986)); see also Vega, 564 F.3d at 1267 (noting that the court has affirmed

certification of a class of “‘at least thirty-one individual class members’” and has

also affirmed a district court’s finding that a class of 34 did not satisfy the

numerosity requirement). “[W]here the question of numerosity is a close one,

a balance should be struck in favor of a finding of numerosity, as the court

always has the option to decertify pursuant to Rule 23(c)(1).” Leszczynski, 176

F.R.D. at 670 (citing Evans, 696 F.2d at 930).

Plaintiffs assert that the numerosity requirement is met. Based on

AHCA’s filings in a separate lawsuit, Plaintiffs estimate that there are at least

480 Medicaid beneficiaries per year who will turn twenty-one and lose Medicaid

coverage for incontinence supplies that were covered while they were children.

Even assuming some of these beneficiaries will be able to receive coverage

under one of the exceptions, given the limited nature of the exceptions, it

appears likely that a significant portion will fall within the class. Although

Plaintiffs do not estimate the size of the existing population of adult Medicaid

recipients with prescriptions for incontinence supplies that are not covered

under Medicaid based on their age, one can reasonably infer that the number

of these individuals across the entire state is not insignificant. Indeed, in the

Response, AHCA does not challenge Plaintiffs’ ability to meet the numerosity

requirement. Accordingly, the Court finds that Plaintiffs have demonstrated

that the proposed class is so numerous that joinder of all members would be

impracticable.

E. Commonality

The commonality requirement demands that there be questions of law or

fact common to the class. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349

(2011). In this way, “commonality” “measures the extent to which all members

of a putative class have similar claims.” Cooper v. Southern Co., 390 F.3d 695,

714 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546

U.S. 454 (2006). Commonality exists if a class action involves “issues that are

susceptible to class wide proof.” Murray, 244 F.3d at 811. The requirement

is satisfied “where plaintiffs allege common or standardized conduct by the

defendant directed toward members of the proposed class.” Elkins v.

Equitable Life Ins. of Iowa, No. CivA96-296-Civ-T-17B, 1998 WL 133741, *11

(M.D. Fla. Jan. 27, 1998). As such, the putative class plaintiffs’ claims must

depend upon a common contention of such a nature that it is capable of class-

wide resolution, “which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of the claims in one

stroke.” Dukes, 564 U.S. at 349-50. Additionally, “[c]ommonality requires

the plaintiff to demonstrate that the class members ‘have suffered the same

injury.’” Id. (citation omitted); see also Dukes, 564 U.S. at 353 (quoting Falcon,

457 U.S. at 157–58).

Here, Plaintiffs allege a standardized course of conduct by AHCA—the

categorical exclusion of incontinence supplies from Medicaid coverage for

persons over the age of twenty-one—directed toward members of the proposed

class—Medicaid beneficiaries whose prescriptions for incontinence supplies

were denied based on this policy. Notably, AHCA does not appear to dispute

the existence of this policy. Whether this categorical exclusion violates the

mandatory coverage requirements of the Medicaid Act is a common question

capable of class-wide resolution. Answering this question yes or no will resolve

an issue central to the Medicaid Act claims of the class in one stroke. See

Dukes, 564 U.S. at 350. In addition, resolving this broader question appears

likely to turn on other common questions such as whether incontinence supplies

are medical supplies within the meaning of the statute, and whether AHCA has

the discretion under federal law to categorically exclude such supplies as not

medically necessary. For purposes of a Rule 23(b)(2) class, all that is required

is the identification of one common question, see id. at 359, Plaintiffs easily

meet that requirement as to their Medicaid Act claim.

Likewise, as to Plaintiffs’ ADA and RA claims, it appears to be undisputed

that while Florida Medicaid does not cover incontinence supplies for Medicaid

beneficiaries over the age of 21 generally, it will cover those supplies regardless

of age for beneficiaries residing in a nursing facility. Plaintiffs assert that this

disparity in coverage between individuals living in the community and those

living in institutions, on its face, constitutes discrimination in violation of the

ADA and RA. What is required by the integration mandate of the ADA and

RA, whether this categorical policy exposes class members to a serious risk of

unnecessary institutionalization, and whether requiring coverage of

incontinence supplies for individuals living in the community is a reasonable

modification or would fundamentally alter Florida’s public assistance program

are common questions capable of class-wide resolution. See Long, 2008 WL

4571904, at *1; see also Kenneth R., 293 F.R.D. at 267-68.

AHCA argues that Plaintiffs cannot satisfy the commonality requirement

because the proposed class members will not “suffer the same harms” or be

impacted by AHCA’s policies “in the same way . . . .” See Response at 19-20.

However, by definition, all putative class members have been or will be denied

Medicaid coverage for medically prescribed incontinence supplies based on their

age. AHCA does not assert that the challenged policy applies to different class

members in different ways. And significantly, unlike the cases on which it

relies, AHCA has not shown any conflicting or competing interests between

members of the proposed class. Cf. Dykes v. Dudek, No. 4:11cv116/RS-WCS,

2011 WL 4904407, at *5 (N.D. Fla. Oct. 14, 2011); Ball v. Kasich, No. 2:16-cv-

282, 2018 WL 6437426, at *5-6 (S.D. Ohio Dec. 7, 2018). While the

ramifications resulting from the lack of coverage for incontinence supplies may

differ among class members, given that Plaintiffs do not seek damages in this

action, these factual differences do not preclude certification of the class. See

Murray, 244 F.3d at 811 (“[T]here is no requirement here that issues subject to

generalized proof predominate over those subject to individualized proofs.”).14

F. Typicality

The prerequisites of commonality and typicality both “focus on whether a

sufficient nexus exists between the legal claims of the named class

14 AHCA also asserts that the class must be limited to the “categorically needy” or “to

those Medicaid recipients who are ‘entitled to nursing facility services,’” presumably because

those are the individuals entitled to home health services, including medical supplies. See

Response at 19. Absent such limitations, AHCA argues that “members of the putative class

may not be entitled to home health care services under the Act in any circumstance.” Id.

However, in the Reply, Plaintiffs contend that both categorically and medically needy

individuals are entitled to home health services under Florida’s state plan, such that “parsing

the Medicaid population” is “unnecessary.” See Reply at 12 n.16 (citing

https://ahca.myflorida.com/Medicaid/stateplanpdf/attachment_3-1-B.pdf at p. 1). On the

limited record before the Court at this time, the Court is not persuaded that the limiting

language AHCA proposes is warranted. If AHCA demonstrates or the Court otherwise

determines as the case progresses that the distinction between the categorically and medically

needy is relevant to the outcome of this litigation, the Court can amend the class definition at

that time. See Rule 23(c)(1)(C).

representatives and those of individual class members to warrant class

certification.” See Prado-Steiman, 221 F.3d at 1278. While commonality is

concerned with group characteristics of a class as a whole, typicality “refers to

the individual characteristics of the named plaintiff in relation to the class.” See

id. at 1279. Typicality is satisfied if the claims of the named plaintiffs and those

of the class “arise from the same event or pattern or practice and are based on

the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332,

1337 (11th Cir. 1984). “The typicality requirement is generally met if the class

representative and the class members received the same unlawful conduct

irrespective of whether the fact patterns that underlie each claim vary.” Mesa

v. Ag-Mart Produce, Inc., No. 2:07-cv-47-FtM-34DNF, 2008 WL 2790224, at *6

(M.D. Fla. July 18, 2008). The main focus of the typicality requirement is that

the plaintiffs will advance the interests of the class members by advancing their

own interests. Agan v. Katzman & Korr, P.A., 222 F.R.D. 692, 698 (S.D. Fla.

2004). “A factual variation will not render a class representative’s claim atypical

unless the factual position of the representative markedly differs from that of

the other members of the class.” Brown v. SCI Funeral Servs. of Fla., Inc., 212

F.R.D. 602, 604–05 (S.D. Fla. 2003) (quoting Kornberg, 741 F.2d at 1337).

Here, Meza and Belanger plainly satisfy the typicality requirement.

Both Meza and Belanger are adult Medicaid beneficiaries with prescriptions for

incontinence supplies that were categorically denied based on their age. Meza

and Belanger both live at home and their treating physician believes it is in

their best interest to remain there. While the precise medical and financial

circumstances of each Plaintiff may be unique, as will be true of all class

members, Meza and Belanger’s claims are entirely typical of the claims of class

members generally. See Long, 2008 WL 4571904, at *2; see also Murray, 244

F.3d at 811 (“The typicality requirement may be satisfied despite substantial

factual differences, however, when there is a ‘strong similarity of legal

theories.’” (citation omitted)). Indeed, AHCA does not identify any way in

which the interests of Meza and Belanger differ from that of the putative class

members.

G. Adequacy of Representation

The fourth prerequisite to class certification set forth in Rule 23(a)

requires “that the representative party in a class action must adequately

protect the interests of those he purports to represent.” Valley Drug Co., 350

F.3d at 1189; Rule 23(a)(4) (internal quotation omitted); see also Piazza, 273

F.3d at 1346 (“‘adequacy of representation’ means that the class representative

has common interests with unnamed class members and will vigorously

prosecute the interests of the class through qualified counsel”). The purpose of

the “adequacy of representation” requirement is “to protect the legal rights of

absent class members” who will be bound by the res judicata effect of a

judgment. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir.

1987). As such, the requirement applies to both the named plaintiffs and to

their counsel. London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir.

2003).

The “‘adequacy of representation’ analysis ‘encompasses two separate

inquiries: (1) whether any substantial conflicts of interest exist between the

representatives and the class; and (2) whether the representatives will

adequately prosecute the action.’” Valley Drug Co., 350 F.3d at 1189 (citation

omitted). Class certification is inappropriate where some class members

benefit from the same acts alleged to be harmful by other members of the class,

creating a conflict of interest. Valley Drug Co., 350 F.3d at 1189. However,

“the existence of minor conflicts alone will not defeat a party’s claim to class

certification; the conflict must be a ‘fundamental’ one going to the specific issues

in the controversy.” Id.

Plaintiffs assert that this requirement is met because there is no conflict

of interest between the named Plaintiffs and the proposed class members.

They also assert that Plaintiffs’ counsel has experience litigating ADA claims

in federal court, as well as specific experience litigating Medicaid coverage of

home health services, including incontinence supplies. Plaintiffs’ counsel also

represent to the Court that they have experience with class action litigation.

Significantly, AHCA does not challenge Plaintiffs’ ability to diligently prosecute

this action, argue that they have any significant conflicts of interest with the

proposed class members, or challenge the qualifications, experience or

competence of Plaintiffs’ counsel. Upon review of the record in this case, the

Court has no reason to question the adequacy of Plaintiffs or their counsel as

representatives of the class.

H. Rule 23(b) and Necessity

Finally, “a class action may be maintained if Rule 23(a) is satisfied” and

the action falls within one of three types of class actions recognized in Rule

23(b). See Rule 23(b). Here, Plaintiffs asserts that class certification is

appropriate under Rule 23(b)(2). See Motion at 24. Rule 23(b)(2) allows class

certification where: “the party opposing the class has acted or refused to act on

grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole .

. . .” Rule 23(b)(2). Significantly, the Rule does not require “‘that the party

opposing the class . . . act directly against each member of the class. The key

is whether his actions would affect all persons similarly situated so that his acts

apply generally to the whole class.’” See Anderson v. Garner, 22 F. Supp. 2d

1379, 1386 (N.D. Ga. 1997) (alteration in original) (quoting 7A Charles A.

Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure:

Civil § 1775 (2d ed. 1986)). As such, “‘[a]ll the class members need not be

aggrieved by or desire to challenge the defendant’s conduct in order for one or

more of them to seek relief under Rule 23(b)(2).’” Id. (quoting Johnson v. Am.

Credit Co. of Ga., 581 F.2d 526, 532 (5th Cir. 1978)).

Here, AHCA’s policy categorically excluding incontinence supplies for

persons over the age of twenty-one from Medicaid coverage applies generally to

the proposed class. Moreover, Plaintiffs seek a declaration that this policy

violates federal law and a permanent injunction prohibiting AHCA from

continuing to implement this policy. If Plaintiffs were to succeed in their

challenges, such injunctive and declaratory relief would be appropriate with

respect to all members of the class. Thus, this case “squarely and easily meets

the requirement for certification under Rule 23(b)(2).” See Lebron v. Wilkins,

277 F.R.D. 664, 668 (M.D. Fla. 2011); Welch v. Theodorides-Bustle, 273 F.R.D.

692, 695 (N.D. Fla. 2010); Long, 2008 WL 4571904, at *1.

Nevertheless, AHCA argues the Court should exercise its discretion to

deny the Motion because class relief is not necessary under the circumstances

of this case. See Response at 10-13. AHCA contends that “[c]lass-based relief

is not appropriate in circumstances where an injunction for the individual

plaintiffs would amount to exactly the same relief as an injunction for an entire

class.” Id. at 11. In support, AHCA cites to United Farmworkers of Florida

Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974)

where, after resolving the merits of the lawsuit, the former Fifth Circuit found

it unnecessary to review the district court’s decision denying class certification

because “whether or not appellants are entitled to class treatment, the decree

to which they are entitled is the same.” See United Farmworkers, 493 F.2d at

812. Because the declaratory and injunctive relief that Plaintiffs seek in this

case would, if granted, “benefit all similarly-situated individuals, irrespective

of whether a class is certified,” AHCA contends that class certification is not

“necessary” and should be denied. Id. at 12-13. The Court is not persuaded.

Significantly, Rule 23 does not include any provision requiring a party

seeking class certification to establish the necessity of such relief. As such, the

Court questions whether such a factor is an appropriate consideration. Indeed,

in Cherry v. Dometic Corp., the Eleventh Circuit observed that “[t]he Supreme

Court has made clear that district courts must grant class certification in ‘each

and every case’ where the conditions of Rule 23(a) and (b) are met.” See

Cherry, 986 F.3d at 1303 (quoting Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 559 U.S. 393, 398-400 (2010)). As such, the Cherry court

reasoned that courts “lack discretion to add requirements to the Rule.” Id. at

1303. Although Cherry concerned the application of an administrative

feasibility requirement, the Cherry court’s reasoning calls into question the

viability of a purported necessity requirement that is not contained in the text

of Rule 23.

Regardless, even to the extent the Court has discretion to deny class

certification for lack of necessity, the Court declines to do so here. As set forth

above, this case presents a quintessential Rule 23(b)(2) class action claim.

Plaintiffs allege that a state policy, applicable to the entire class, is invalid on

its face. Notably, AHCA has not withdrawn this policy pending resolution of

this lawsuit, nor has it stipulated that it will abide by the Court’s ruling as to

all putative class members. Cf., e.g., Casale v. Kelly, 257 F.R.D. 396, 406

(S.D.N.Y. 2009) (explaining that “an affirmative statement from the

government defendant that it will apply any relief across the board militates

against the need for class certification”); Lebron v. Wilkins, 277 F.R.D. 466, 467

(M.D. Fla. 2011); Jones, 2020 WL 5646124, at *7. Moreover, this case is not

akin to United Farmworkers where the relief to all potential class members is

complete once the singular challenged decision is overturned. See United

Farmworkers, 493 F.2d at 812 (finding that the city officials should be “directed

to . . . allow the farmworkers’ housing project to tie into the City’s water and

sewer system”). Rather, in this case, if relief is warranted, AHCA must refrain

from applying the invalid policy in the individual cases of the numerous

potential class members. Thus, in the Court’s view, the full scope of any decree

and its enforceability by the class members should be “explicit and

unmistakable.” See Rodriguez v. Percell, 391 F. Supp. 38, 42 n.2 (S.D.N.Y.

1975); see also Gayle v. Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297, 310

(3d Cir. 2016) (cautioning that the “circumstances in which classwide relief

offers no further benefit . . . will be rare, and courts should exercise great

caution before denying class certification on that basis” because “[a]fter all, the

imposition of individual relief is no guarantee it will be carried over to other

class members”).

In light of the foregoing, the Court finds that Plaintiffs have satisfied the

requirements of Rule 23(a) and (b)(2), and as such, the Motion is due to be

granted.

Accordingly, it is

ORDERED:

1. Plaintiffs’ Motion for Class Certification (Doc. 2) is GRANTED.

2. The Court, having found that Plaintiffs have met the prerequisites to

class certification set forth in Rule 23, Federal Rules of Civil

Procedure, certifies the following Class with respect to Counts I, II,

and III of the Complaint:

All Florida Medicaid recipients whose prescription for

incontinence supplies has been or will be denied

Medicaid coverage based on Defendant’s exclusion of

those supplies for recipients aged 21 and older.

3. The Court designates Plaintiffs Blanca Meza, by and through her

guardian, Aide Hernandez and Destiny Belanger, by and through her

Guardian, Julie Belanger as Class Representatives, and appoints

Plaintiffs’ Counsel, Katy DeBriere, Alison DeBelder, and Lewis

Golinker as Class Counsel.

DONE AND ORDERED in Jacksonville, Florida this 27th day of March,

2023.

MARCIA MORALES HOWARD

United States District Judge

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