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J.E. v. Wong

United States District Court, D. Hawaii

February 23, 2016

J.E., THROUGH HIS PARENT SUZANNE EGAN, FOR THEMSELVES AND ON BEHALF OF A CLASS OF THOSE SIMILARLY SITUATED, ET AL., Plaintiffs,
v.
RACHEL WONG, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE STATE OF HAWAII DEPARTMENT OF HUMAN SERVICES, Defendant.

          FINDINGS AND RECOMMENDATION TO DENY PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

          BARRY M. KURREN, Magistrate Judge.

         Before the Court is Plaintiffs' Motion for Class Certification (Doc. 78). The Court heard this Motion on January 26, 2016. After careful consideration of the Motion, the supporting and opposing memoranda, and the arguments of counsel, the Court finds and recommends that this Motion be DENIED.

         As discussed below in more detail below, critical issues in this case remain unclear: whether Defendant Department of Human Services (DHS) has a policy regarding applied behavioral analysis (ABA) treatment, whether DHS used that policy to deny ABA treatment or reimbursement for such treatment, and whether Plaintiff J.E. or other proposed class members were denied treatment. These issues overlap with the certification inquiry and are relevant to the Court's analysis of class certification. Given these uncertainties, the Court finds that Plaintiffs do not establish that class certification is appropriate at this time and recommends that class certification be denied as premature.

         FACTUAL BACKGROUND

         Plaintiff J.E. is six years old, qualifies for Medicaid, and has been diagnosed with autism. (Second Amended Complaint (SAC) ¶¶ 66, 68.) Several professionals have recommended ABA treatment for J.E.'s condition. (Id. ¶ 69.) Plaintiffs contend that this treatment is medically necessary for J.E. to correct, maintain, or ameliorate the effects of his disability. (Id.) Although J.E. may have initially been informed by DHS that ABA treatment would not be covered, Plaintiffs state that DHS eventually reimbursed his provider for the treatment. Plaintiff Hawaii Disability Rights Center (HDRC) is a nonprofit corporation whose purpose is to protect and advocate for the legal and civil rights of people with disabilities. (Id. ¶ 21.)

         Plaintiffs J.E. and HDRC bring this lawsuit on behalf of the following proposed class:

All former, current, and future Medicaid-eligible persons in Hawaii under the age of twenty-one who have been diagnosed with an Autism Spectrum Disorder ("autism") and prescribed or recommended applied behavioral analysis ("ABA") treatment to ameliorate their condition.

(Motion at 1, SAC ¶¶ 76-77.) Plaintiffs claim that DHS has a blanket policy, whereby it does not provide Medicaid coverage for ABA treatment regardless of medical necessity and, thus, fails to comply with the Medicaid Act. (SAC ¶ 1.)

         DISCUSSION

         Plaintiffs move for certification of its proposed class. A plaintiff moving to certify a class has the burden of showing that the proposed class satisfies the requirements of Federal Rules of Civil Procedure Rule 23. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2010). Rule 23(a) states four threshold requirements applicable to all class actions:

(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 ...

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