Case 2:14-cv-07199-PD Document 27 Filed 12/31/14 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMINATA DIAO and
GREGORY MCCOWIN, on behalf of
themselves and all others similarly
situated,
Plaintiffs,
v.
BEVERLY D. MACKERETH and
DIONISIO MIGNACCA,
Defendants.

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Civ. No. 14-7199

ORDER
On December 22, 2014, Plaintiffspurported class representativessought a
preliminary injunction to enjoin the January 1, 2015 implementation of a new Medicaid plan for
approximately 40,000 citizensbecause their newly assigned policies do not include nonemergency transportation and dental careand to require the Commonwealth of Pennsylvania to
continue providing services included in the expiring plan.

Having considered Defendants

December 23, 2014 Response and having conducted a hearing on December 30, 2014, I will
deny the Motion.
I.

BACKGROUND
After lengthy negotiations, Pennsylvanias Department of Human Services and the

federal government agreed to implement on January 1, 2015 a new Medicaid-funded program

Healthy Pennsylvaniacomprised of six plans. Three of these plansfor pregnant women,
Medicare cost-sharing, and childrenare not at issue here. Healthy Plus is intended to cover
those 65 years old as well as the disabled, pregnant, or medically frail. According to Plaintiffs,
the Healthy Plus program provides benefits most similar to those they currently receive.

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Healthy will cover those that are qualified to receive benefits under Pennsylvanias Medicaid
state plan. Healthy PA PCO will cover those 19 through 64 at or below 133% of the federal
poverty level who are not pregnant, not medically frail and not otherwise eligible for Medicaid
Assistance. (Resp., Doc. No. 7 at 4.)
Plaintiffs raise a procedural due process challenge on behalf of 19-to-64-year-olds
previously placed in the non-money payment categories of assistance eligibilitymeaning
they are chronically needywho are assigned to the Healthy PA PCO Plan, and thus
determined not to be medically frail. As alleged, these individuals previously received nonemergency transportation to medical providers and dental care. Under the Healthy PA PCO
Plan, they will not receive the dental care, and will not receive the transportation in 2015, but
will receive the transportation in 2016.
Defendants sent pre-transition notices to medical assistance recipients in early
November, and transition notices in early December. The November pre-transition notices
informed each Plaintiff that his or her health plan would change, effective January 1, 2015, listed
the services that the new plan would provide, and gave each the opportunity to complete a health
screening questionnaire if he or she believed his or her new designation was inappropriate. The
December transition notices again informed each Plaintiff of the health plan change and gave
each the opportunity to request, within ten days, a hearing to challenge the designation.
Plaintiffs now contend that these notices did not comport with due process because: 1)
they failed to include individualized explanations of why recipients were not deemed medically
frail and did not describe the methods used to make these determinations; 2) they were
incomprehensible to most medical assistance recipients who lacked the necessary level of
reading comprehension; and 3) they purported to give recipients ten days to appeal but in fact

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gave some only six days from the postmark dates.

Plaintiffs seek a preliminary injunction on behalf of all medical assistance recipients
who previously received non-monetary payment General Assistance-related Medical Assistance
and who have now been designated to receive Healthy PA PCO coverage. They estimate that
this subclass encompasses approximately 40,000 individuals.

The named Plaintiff for this

subclass, Gregory McCowin, has timely requested a hearing to contest his designation in Healthy
PA PCO. When he did so, he was automatically placed into the Healthy Plus programwhich
provides dental care and non-emergency transportationpending resolution of his appeal.
II.

DISCUSSION
A.

Class Certification

Before issuing a class-wide injunction, I must certify the class. See Georgine v. Amchen
Prods., Inc., 83 F.3d 610, 624 (3d Cir. 1996) (If the class was not properly certified, the district
court was without authority to issue its preliminary injunction.); Adams v. Freedom Forge
Corp., 204 F.3d 475, 491 (3d Cir. 2000) (Merely petitioning for class certification cannot
provide plaintiffs the right to be treated collectively. . . . [A] class action determination focuses
on similarities between the legal claims of the parties, while a preliminary injunction
determination, by requiring a showing of irreparable harm, depends in many cases (including this
one) on circumstances entirely independent of legal rights: the particular resources available to
each member of the class to weather hardships pending a trial.); In re Nat. Football League
Players Concussion Injury Lit., -- F.3d ----, 2014 WL 7331936, at *6 (3d Cir. 2014) ([A] district
court [is] no longer permitted to issue a conditional certification. (citing Hohider v. United
Parcel Serv., Inc., 574 F.3d 169, 202 (3d Cir. 2009))).
To obtain class certification, Plaintiffs must show that: 1) the class is sufficiently

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numerous to render joinder impracticable; 2) there are common questions of law and fact to all
members of the class; 3) the claims or defenses of the representative parties are typical of the
class; and 4) the representatives will fairly and adequately represent the class. Georgine, 83 F.3d
at 624 (citing Fed. R. Civ. P. 23(a)). They must also meet one of the requirements of Rule 23(b).
Here, Plaintiffs seek class certification under Rule 23(b)(2), which requires 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.
At this very early stage, and without any discovery, Plaintiffs have not met the
requirements for class certification. Because they allege that nearly 40,000 individuals received
the same inadequate notices from DHS, I will assume, arguendo, that they can meet the
numerosity and commonality requirements. They have not, however, demonstrated that their
proposed representative is typical of the class. As I discuss below, Mr. McCowin has not
sustained the irreparable harm purportedly suffered by the class, because he has timely
appealed and thus will continue to receive dental care and non-emergency transportation at least
until his appeal is resolved. Moreover, Defendants argue persuasively that there can be no
typical class representative: given the members highly disparate ages and medical needs, the
denial of non-emergency transportation will likely have equally disparate effects on the
members. In these circumstances, the law does not permit me to issue an injunction on behalf of
a class that has not been and likely cannot be certified. See Georgine, 83 F.3d at 624; Adams,
204 F.3d at 491.
B.

Injunction

In the alternative, I conclude that even if I could grant injunctive relief to an uncertified

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(and uncertifiable) class, Plaintiffs have not made out an entitlement to the equitable relief they
seek.
A preliminary injunction should not be granted unless the movant, by a clear showing,
carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis
removed). The moving party must demonstrate that: 1) he or she is likely to succeed on the
merits; 2) he or she will likely suffer irreparable harm without a preliminary injunction; 3) the
balance of equities tips in his or her favor; and 4) an injunction is in the public interest. Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The failure to establish any element
renders a preliminary injunction inappropriate. Ferring Pharm., Inc. v. Watson Pharm., Inc.,
765 F.3d 205, 210 (3d Cir. 2014). Where, as here, the movant seeks a mandatory injunction, the
burden is particularly heavy. Phila. Hous. Auth. v. U.S. Dept. of Hous., 553 F. Supp. 2d 433,
436 (E.D. Pa. 2008).
Plaintiffs have made a more than colorable case that the Commonwealths transition
notices were inadequate. See Ortiz v. Eichler, 794 F.2d 889, 892 (3d Cir. 1986) (each notice
must provide a detailed individualized explanation of the reason(s) for the action being taken
which includes, in terms comprehensible to the claimant, an explanation of why action is being
taken (internal citation omitted)); Phila. Welfare Rights Org. v. OBannon, 525 F. Supp. 1055,
1060 (E.D. Pa. 1981) (Providing specific detailed information on the notice (that is, the basis of
the calculation and the specifics of any cuts) would have allowed recipients to correct deficient
information . . . on factors essential to accurate determinations under the program.).
Plaintiffs have not, however, demonstrated that they will suffer immediate irreparable
harm in the absence of a mandatory injunction. Plaintiffs confirmed during the December 30
hearing that the irreparable harm they allege is the denial of non-emergency transportation under

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the Healthy PA PCO Plan.

Plaintiffs acknowledge that federal law does not require such

transportation. See 42 U.S.C. 18022(b)(1). They have made no showing, however, as to how
many members even need transportation of any kind to reach their medical providers. Moreover,
Plaintiffs conceded at the hearingas they mustthat emergency transportation remains
available to the class members as it does to all Pennsylvania citizens.

Non-emergency

transportation is not provided under Healthy PA PCO precisely because it is non-emergency

transportation. In these circumstances, Plaintiffs have not made out immediate and irreparable
harm. See Adams, 204 F.3d at 487 ([I]n the absence of a foundation from which one could
infer that all (or virtually all) members of a group are irreparably harmed, we do not believe that
a court can enter a mass preliminary injunction.); Contl Grp., Inc. v. Amoco Chems. Corp., 614
F.2d 351, 359 (3d Cir. 1980) ([M]ore than a risk of irreparable harm must be demonstrated.
The requisite for injunctive relief has been characterized as a clear showing of immediate
irreparable injury, or a presently existing actual threat . . . . (internal citations omitted));
MarbleLife, Inc. v. Stone Res., Inc., 759 F. Supp. 2d 552, 562 (E.D. Pa. 2010) ([T]he injury
must be a presently existing threat, and not a remote or speculative possibility of future harm.).
Moreover, Plaintiffs have not demonstrated that the balance of the equities favors them or
that a mandatory injunction would be in the public interest. Defendants contend that the relief
Plaintiffs seek would place the Commonwealth in violation of its agreement with the federal
government, thus costing Pennsylvania nearly $500,000 per day.

Plaintiffs dispute this

characterization, arguing that the federal government would pay court-ordered funds. See 42
C.F.R. 431.250(b)(2) (federal funding available for payments made . . . for services provided
within the scope of the Federal Medicaid program and made under a court order). Defendants
contend that the federal government would likely not consider these funds within the scope of

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the Federal Medicaid program and so would not pay any additional costs. As a result, the
mandatory injunction could well cost the Commonwealth $500,000 per day. Plaintiffs have also
proposed three alternatives through which the Commonwealth could continue to provide dental
care and non-emergency transportation while receiving federal funds. For instance, DHS could
ask the federal government to approve the existing state package as an Alternative Benefit Plan
for adults who are newly eligible for federal fundingsuch as Plaintiffs.

Defendants

demonstrated that none of these proposals is certain to succeed. Indeed, given that the present
agreement with the federal government took months to negotiate, it is quite likely that it will take
an extended periodonce again costing Pennsylvania nearly $500,000 each dayfor new
negotiations to succeed (assuming, arguendo, that they can succeed). This potential burden to
the Commonwealth well outweighs the harms suffered by the class members denial of nonemergency transportation and dental care. In these circumstances, Plaintiffs have failed to
demonstrate that the equities weigh in their favor, or that an injunction would be in the public
interest.
III.

CONCLUSION
I am unable to grant an injunction on behalf of a purported class that has not been and

likely cannot be certified. In the alternative, I conclude that Plaintiffs have failed to demonstrate
their entitlement to the mandatory injunction they seek.

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AND NOW, this 31st day of December, 2014, upon consideration of Plaintiffs Motion
for Preliminary Injunction (Doc. No. 2), Defendants Response (Doc. No. 7), Plaintiffs
Amended Motion (Doc. No. 12), Plaintiffs Reply (Doc. No. 14), Plaintiffs Supplemental Brief
(Doc. No. 23), Defendants Response (Doc. No. 24), the Parties December 30 oral
presentations, and all related submissions, it is hereby ORDERED that the Motion is DENIED.

AND IT IS SO ORDERED.
/s/ Paul S. Diamond
_________________________
Paul S. Diamond, J.

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