In this brief by 9n8IpO7k

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									I. THE CLAIMS OF THE CLASS REPRESENTATIVES ARE INDICATIVE OF
SYSTEMIC PROBLEMS WITH PHS’S NOTICES OF ACTION AND THE PROMPT
PROVISION OF PHARMACY BENEFITS

        At the hearing on April 23, 2001, this Court inquired how it could determine if the claims
of the class representatives are indicative of a systemic problem.1 In this brief, plaintiffs
demonstrate that the claims of the class representatives are typical of the claims of the class, and
that their facts are illustrative of the systemic problems at issue in this case.   The class
representatives allege that the problems they have experienced with (1) lack of notice, (2)
inadequate and misleading notices, (3) delay in the prompt provision of pharmacy benefits, and
(4) lack of an expedited administrative hearing process, arise from, and are the result of, systemic
policies and practices of the defendants which violate federal Medicaid law, 42 U.S.C.
§§1396a(a)(3) and (a)(8), 42 C.F.R. § 435.200, et seq., and the Due Process Clause of the
Fourteenth Amendment.2 Although not technically relevant to class certification, plaintiffs
detail below some of the evidence of the systemic nature of these problems, particularly in light
of PHS’s claim at oral argument that plaintiffs’ failure to produce extensive merits evidence to
date indicated that none exists.
        A. Notice of Action Claims
            1. Systemic Failure to Issue Notices of Action




        1
          Typicality is satisfied when class representatives allege that the same unlawful conduct
was directed at or affected both the named plaintiffs and the members of the class they seek to
represent, irrespective of minor variations in the fact patterns underlying their individual claims.
See Robidoux v.Celani, 987 F.2d 931, 936-37 (2d Cir. 1993). Plaintiffs maintain their objection
to any inquiry into the merits of plaintiffs’ claims and allegations.
        2
          What is not at issue in this case is the substantive correctness of defendants’ adverse
actions-- only whether the notices which reflect these actions include certain basic information
required by federal law. This case also is not about the scope of covered services – under
federal law or otherwise -- only whether the notices of action misrepresent the scope of covered
services, as to which there is no dispute. Most importantly, this case is not a challenge to the use
of a prescription drug formulary, but only whether the use of PHS’s particular formulary system
causes delays in the provision of medically necessary medications which defendants agree are
covered under the Medicaid program and under the terms of PHS’s contract with DSS.
       Karen L., Grisel Hernandez, K.P., and A.M. claim that notices of action were not issued
when requested Medicaid benefits were denied or terminated. Karen L. claims (and PHS does
not dispute) that no written notice of action was issued to her when her therapist’s requests for
authorization for behavioral health therapy sessions were repeatedly denied, both in full and in
part. K.P. claims that, notwithstanding DSS’s July 1, 2000 policy transmittal clarifying the need
for notices of action to be issued in all denial situations, including partial denials, no notice of
action was issued to him when PHS partially denied the case management service hours
requested by his behavioral health therapist, see July 20, 2000 Letter to K.P.’s Therapist (Exhibit
“1”). Karen L. and K.P. both allege, and are in possession of, substantial evidence that
defendants’ failure to issue notices of action to them was not an isolated “mistake,” but rather the
result of systemic problems with defendants’ notice of action systems which fail to ensure that
written notices are uniformly sent out to PHS Medicaid members whenever requested Medicaid
benefits are denied (in whole or in part), terminated, reduced or suspended. See, e.g.,
Confidential November 30, 2000 PHS Logisticare Memorandum (Under Seal Exhibit “X”);
                                                            3
Affidavits of Behavioral Health Providers (Exhibit “2”)
       Grisel Hernandez claims that she did not receive a notice of action when PHS refused to
authorize her PHS-participating pharmacist to refill her prescription for Vioxx on two separate
occasions in April 2000. Similarly, A.M. claims that she did not receive a notice of action after
she was told, by a PHS-participating pharmacist, in August 2000, that the prescribed drug
Wellbutrin was “not covered.” PHS does not dispute that it did not issue notices in either case.




       3
         Significantly, PHS does not dispute that it did not send notices of action regarding
behavioral health decisions to Karen L. or K.P., and has never argued that there was anything
isolated or mistaken about this failure, although it did make the irrelevant claim at oral argument
that K.P. had no underlying entitlement to coverage for the behavioral health services at issue.
Indeed, the affidavits of several children’s behavioral health providers attesting to routine partial
denials without notice indicate the routine nature of this practice.


                                                   2
       Both Ms. Hernandez and A.M. allege, and are in possession of ample evidence to
demonstrate, as set forth in Plaintiffs’ October 26, 2000 Memorandum in Support of Motion for
Preliminary Injunction (“PI Memorandum”), at 9-17, that PHS does not issue notices of action
when, acting through its computerized claims processor (API), PHS refuses to authorize the
dispensation of a prescribed medication. According to the September 14, 2000 deposition
testimony of PHS pharmacy benefit spokesperson Virginia White (“White”), a complete copy of
which is attached to plaintiffs’ PI Memorandum as Exhibit 3, notices of action are issued only if
the member’s provider submits a request for prior authorization (White, 187). This process,
about which members and providers have little or no information,4 is generally triggered only
after PHS has authorized a one-time 30 day manual override requested by the pharmacist and
PHS has contacted the provider about the need for prior authorization (White, 68-76). Because
overrides were not authorized for A.M. or Ms. Hernandez when they went to the pharmacy (in
Ms. Hernandez’s case, when she returned the second and third time), no notice of action was ever
issued to either of them. According to PHS’s own spokesperson, notices of action are never
issued when a requested prescription medication is denied without a prior authorization request
(White, 187) -- clear evidence that this is a systemic problem and not an isolated incident.




       4
          Both A.M. and Ms. Hernandez, like other Medicaid members, knew nothing about the
prior authorization requirement for Vioxx or Wellbutrin (or, in the case of Wellbutrin, about the
fact that no one-time supply was available). Indeed, PHS does not even expect providers to
know its prior authorization requirements or to submit requests for prior authorization before
writing prescriptions. (White, 68-70). Rather, they are allowed and expected to submit prior
authorization requests after being notified by PHS’s pharmacy benefit claims processor that a
temporary supply of a non-formulary or unauthorized medication has been dispensed (assuming
that the provider does not decide to take PHS’s strong suggestion to prescribe the suggested
formulary alternative). Id.


                                                 3
       PHS asserts that it recently changed its system to provide for an automatic 30-day
override, and to provide for the issuance of notices of action even if the provider fails to submit a
request for prior authorization after being contacted by PHS following the authorization of an
override. Whether or not the system actually operates as PHS now represents goes to the merits
of the case, and plaintiffs should be given the opportunity to adjudicate this issue at a later stage.
Nonetheless, even if these representations are accepted on their face, there are two very common
types of adverse actions in which notices will still not be provided, situations that are identical to
those which were faced by A.M. and Ms. Hernandez. First, PHS indicates that there are at least
eight to ten commonly-prescribed covered medications that members can never obtain, even in
temporary amounts, without prior authorization. See PHS Class Opposition Brief, at 30 and
Feb. 1, 2001 PHS letter to DSS, page 1 n.2 & page 3 (Exhibit “3”). Wellbutrin, the drug needed
by A.M., is specifically identified by PHS as one of these drugs. Second, where a member
receives a one-time override and then seeks a refill of the prescription at a later time, no
subsequent override or notice will be provided.5 In the case of Ms. Hernandez, PHS would not
authorize another supply of Vioxx, on two separate occasions, because a one-time supply
previously had been provided to her; and, since no contact was then made by PHS with her
prescribing provider to solicit a request for prior authorization, no notice of action was issued on
either occasion.6 While PHS may wish to blame the prescribing providers and therapists, there
is clearly substantial evidence to support plaintiffs’ allegations that these denials of notice are
systemic in nature and not isolated events.
       2. Systemic Issuance of Legally Inadequate and Misleading Notices of Action
       In separate situations, Ms. Hernandez and K.P. claim that they received notices of action

       5
         PHS’s April 3, 2001 Responses to Plaintiffs’ Second Set of Interrogatories reveal about
150 instances per month in the last few months in which pharmacist-initiated requests for
overrides were rejected because the request was for a second override. See Exhibit “4” hereto.
       6
          PHS’s argument that it could not contact Ms. Hernandez’s prescribing provider because
he was not a participating provider is belied by the plain language of the PHS/DSS contract,
which mandates coverage for all medications prescribed by a “licensed authorized practitioner”
whether or not such provider participates in PHS, Contract, Appendix A, §A.34.a. (Exhibit “5”).
In any event, if there had been an issue with respect to the status of the particular prescriber, the
prescription still would not have been filled the second and third time even if prescribed by a
PHS-participating physician, because the override that she received when she first was
prescribed this drug was one-time only. This is true for all of PHS’s Medicaid enrollees.

                                                   4
which did not meet the requirements of federal statutory and constitutional law and which were
misleading and deceptive in terms of the information provided. Ms. Hernandez received a
notice of action, dated August 17, 1999, which denied authorization for out-patient surgery as not
being medically necessary “per PHS policy” (Exhibit “6”), an entirely inappropriate authority for
any adverse decision under Medicaid, see 42 C.F.R. § 435.210(c).        Indeed, DSS has specifically
and repeatedly prohibited reference to “internal MCO” policies or criteria, or policies of a
“private entity,” in its various memoranda and policy transmittals on notices of action, dating
back to at least September 23, 1998. See Exhibits “7” through “10”. Nevertheless, reference to
internal PHS policy or criteria, as the basis for a denial or termination of benefits, continues to be
found in numerous notices of action issued since this litigation commenced and, indeed, since
DSS first proposed to sanction PHS on February 3, 2000 specifically for Ms. Hernandez’s notice
(Exhibit “11"). See Exhibit “12”.
           In addition, Ms. Hernandez’s notice of action did not cite any state regulation as the
legal authority for its action, 42 C.F.R. § 431.210(c), although PHS specifically acknowledged
this legal requirement in its August 10, 2000 Memorandum in Support of Its Motion to Dismiss,
at 4, nor did the notice inform Ms. Hernandez how she might find the legal authority for PHS’s
denial, see, e.g., Ford v. Shalala, 87 Supp. 2d 163, 180-82 (E.D.N.Y. 1999), and the notice did
not advise Ms. Hernandez of her right to review her records at PHS, see 42 C.F.R. § 431.242(a).
The same deficiencies in Ms. Hernandez’s notice are found in every one of the thousands of
notices of action produced by PHS through to the end of March 1, 2001 in response to plaintiffs’
discovery requests, see, e.g., Exhibit “13,” while some of these notices reference inapplicable
contract provisions or even quote non-existent provisions as the basis for the decision, compare
Exhibit “14” with Contract Sections 3.17d and Appendix A, Section A.28g and 34 (Exhibit “5").


       K.P. received a notice of action denying Emla Cream which was addressed to his doctor,
and which denied this drug on the misleading ground, see Contract, Appendix A, Section A.34
(Exhibit “5”), that the medication was not on the “Preferred Drug Formulary,” which is identified
as “a listing of medications eligible for coverage by Physician’s Health Services.” (Exhibit
“15”).7 The notice did not specify the formulary alternative that was claimed to be equally


       7
           Such notices are deceptive and discourage appeals, because they lead members to

                                                  5
effective in meeting his need for a topical anesthetic, as has been required by DSS to be stated in
all notices since July 1, 1999. See Exhibit “16”. Addressed as it was to his doctor, the notice
did not advise K.P. of his own appeal rights or give correct information about how to challenge
the decision through the fair hearing procedure.




believe that the only reason for appealing a denial or termination of a non-formulary medication
or non-“approved list” medication would be a belief that PHS had made a mistake as to whether
a given drug was or was not on the formulary or list. Since class members have no access to this
list, the use of this artfully crafted language goes far to explain the relatively few hearings that
have been requested for denials or terminations of non-formulary drugs even since PHS finally
began to issue notices of action about a year after it first started denying requests for drugs on
this basis.


                                                   6
        Even if the Court were to accept PHS’s assertion on the merits, that the issuance of the
doctor notice to K.P. was simply a mistake, the notice that PHS intended to send to K.P. (which
was sent to K.P.’s doctor and which plaintiffs obtained through discovery) is no more compliant
with federal Medicaid law or due process requirements. See Notice to K.P., dated August 1,
2000 (Exhibit “17”). That notice gives the same impermissible reason for the denial of Emla
Cream and also fails to identify the formulary alternative that is claimed to be equally effective.
While it advises K.P. of his right to request a fair hearing, it is written as a “denial” and, as such,
does not provide K.P. with ten days’ advance notice of termination and does not advise K.P. of
his right to continue to receive the medication (if necessary) during the outcome of such an
appeal (the so-called “aid pending” requirement).8 In addition, as with Ms. Hernandez, the
notice that PHS intended to send K.P. did not cite a regulatory basis for the adverse action, did
not advise K.P. of how to find such legal authority, and did not advise him of his right to see his
records at PHS.
        The notice of action addressed to K.P. is indistinguishable from the hundreds of
pharmacy benefit notices of action that have been sent to PHS Medicaid members since
the August 10, 2000 submission to the Court of the affidavit of PHS’s then-president, Barry
Averill (now CEO) -- in which he swears that PHS was then, and would continue to be, in full
compliance with all due process obligations -- with respect to both Emla Cream, see Exhibit
“19,” and dozens of other non-formulary drugs, see Exhibit “20”. These notices of denial of
non-formulary drugs, as well as the notices of termination of non-formulary drugs, see Exhibit
“21,” use misleading language which describes the formulary as containing medications which
are “eligible for coverage by PHS” or as the “approved list of medications covered by PHS.”
This language is still being routinely used today (Exhibits “22” and “23”), notwithstanding
PHS’s March 29, 2000 representation to DSS that it ceased to use it as of January 11, 2001
(Exhibits “24”and “25”). The routine non-formulary drug termination notices, hundreds of
which are issued each month, see Exhibit “I,” do not identify the formulary alternative deemed
to be equally effective for the recipient, do not cite a regulatory basis for the termination of the

        8
          Attached as Exhibit “18” are a few examples of notices issued by PHS which not only
do not provide ten days’ advance notice, but also routinely are issued after the termination of
services has already occurred. Even PHS’s employee responsible for reviewing all notices before
they are issued has acknowledged the illegality of this ongoing conduct. Under Seal Exhibit “Y.”


                                                   7
medication, do not advise the recipient how to locate such authority, and do not advise the
recipient of the right to see his or her records at PHS (Exhibits “21” and “22”).
       B. Systemic Failure To Provide Pharmacy Benefits With Reasonable Promptness
       Grisel Hernandez and A.M. each claim that they did not receive a covered pharmacy
benefit with reasonable promptness. Ms. Hernandez was twice denied a supply of the prescribed
medication Vioxx which had been previously dispensed pursuant to a one-time override,
unbeknownst to her, of the prior authorization procedure. Even when another,
PHS-participating, doctor wrote another prescription for Vioxx, because of her inability to get the
prescription refilled at the drug store, and even though that second prescription contained
information about her urgent need for this prescription, Ms. Hernandez still was told that the
medication was “not covered” and she was unable to get her prescription filled.9 A.M.’s mother
also was told that the prescribed medication Wellbutrin was “not covered” and that she could
obtain the drug only by paying for it out of pocket, when she presented her prescription to a
PHS-participating provider. She learned almost two weeks later, following a visit to her
therapist, that the medication had subsequently been approved and was waiting for her at the
pharmacy. (Having previously been told that the medication was not covered, and never having
received any notice about the need for prior authorization, A.M.’s mother logically saw no reason
to return to the pharmacy in the interim to see if the medication had suddenly become “covered.”)
       As was true of their notice of action claims, Ms. Hernandez and A.M. claim that the delay
they suffered in receiving their prescribed medications was as result of a drug formulary system
which (a) keeps Medicaid members unaware of the prior authorization requirements for
non-formulary medications, (b) does not authorize the dispensation of all medications prescribed
for PHS Medicaid members, including Wellbutrin, even under its claimed new “automatic”
override system which became effective on February 1, 2001, and (c) will not allow an override
for a second prescription of a non-formulary or unauthorized medication if the individual’s initial


       9
          Plaintiffs allege that when PHS-participating pharmacists tell customers that
non-formulary medications are “not covered” they are acting on information provided by PHS’s
pharmacy claims processor. This is fully consistent with the misleading language that PHS
routinely has used, and continues to use, in its own pharmacy notices of action stating that
non-formulary medications are not “eligible for coverage” or are not on its “approved list of
medications covered.” See Exhibits “20” through “23.”


                                                 8
request for prior authorization is denied and no appeal is then taken.10
       While the evidence of the extent of violations is irrelevant to class certification, plaintiffs
note that PHS’s own interrogatory answers served on April 3, 2001 confirm a pattern of at least
150 denials per month at the pharmacy for Medicaid clients seeking to obtain prescribed
medications for which a one-time override has already been provided. See PHS’s Response
to Plaintiffs’ Second Set of Interrogatories, No. 7 (Exhibit “4”). These answers also confirm
that there routinely are denials of initial requests, which presumably are not part of the new
automatic override system claimed by PHS to be in place as of February 1, 2001. Response to
Interrogatories 5 and 7 (Exhibit “4”). Resolution of the reasonable promptness claims of Grisel
Hernandez and A.M. will necessarily determine the claims of the class with respect to whether
the preferred drug formulary system utilized by PHS operates to unreasonably delay the provision
of medically necessary covered medications to PHS Medicaid members.
II. THE CLAIMS OF THE PUTATIVE CLASS ARE SUSCEPTIBLE TO CLASSWIDE
PROOF AND WILL NOT REQUIRE INDIVIDUALIZED DETERMINATIONS
       At oral argument PHS claimed that class certification would not be economical because
determination of the issues in this case will require “highly individualized determinations.”
PHS suggested that resolution of plaintiffs’ class claims will require the Court to review
thousands of notices of action without having “essential” information about the medical needs of
the Medicaid member recipient, the services requested, and the basis for each adverse action.
Similarly, with respect to plaintiffs’ reasonable promptness claims, PHS suggested that the Court
will be required to assess the facts of each class member who presents a prescription for a
non-formulary medication to a PHS-participating pharmacist. Lastly, it asserted that the Court
will be required to review hundreds of factual scenarios to determine whether notice is legally
required.




       10
         Denials of access to the drugs needed by Ms. Hernandez and A.M., Vioxx and
Wellbutrin, are in fact routine for PHS’s Medicaid enrollees. See Exhibits “A” and “B”.


                                                  9
       PHS’s assertions are without merit. What is required in this case is a few class-wide
determinations as to whether such principles of due process, directly incorporated into federal
Medicaid law, see 42 C.F.R. § 431.205(d), citing Goldberg v. Kelly, 397 U.S. 254 (1970),
require that notices contain certain specific elements, including a specific regulatory basis for
the adverse action, and information about how to find such legal authority, Ford v. Shalala, 87
F.Supp.2d at 180-82, and about the right of the enrollee to see his or her own records at PHS, see
42 C.F.R. 431.242(a); Healey v. Shalala, 2000 WL 303439, aff’d, 2000 WL 436618 (D. Conn.
Mar. 1, 2000) (procedural right meaningless to individual without being informed of its
existence). Federal courts have routinely certified classes over the last several decades in order
to determine whether the notices of action being issued with respect to public assistance benefits
comply with all legal requirements.11 Relief in those cases did not require an individualized
assessment of the entitlement of the recipient to the underlying benefit; indeed, the purpose of
such notice is to enable the recipient him or herself to understand the reason for the decision so
that the recipient may individually assess his or her entitlement to the requested service and
determine whether or not to appeal the decision through the fair hearing process. See Carey v.
Piphus, 435 U.S. 247, 266 (1978) (holding that “the right to procedural due process is ‘absolute’
in the sense that it does not depend upon the merits of a claimant’s substantive assertions”).
       Plaintiffs claim that not one of the thousands of notices issued by PHS to date, including
the year and one-half that this case has been pending, contains these essential elements. The
Court can readily determine if the notices of action issued by PHS contain these essential
elements, whether such absence is the result of systemic policies and practices, and whether such
deficiencies, if systematic, are violative of federal law.   The Court need not assess the

       11
          See, e.g., Ortiz v. Eichler, 794 F.2d 889, 892-94 (3d Cir. 1986); Gray Panthers v.
Schweiker, 652 F.2d 146, 172-73 (1980), on appeal after remand, 716 F.2d 23 (D.C.Cir. 1983);
Banks v. Trainor, 525 F. 2d 837, 842 (7th Cir. 1975); Vargas v. Trainor, 508 F.2d 485, 490 (7th
Cir. 1974); Connecticut State Department of Social Services v. Shalala, 2000 WL 436616, *1-*4
(D.Conn. Feb. 28 2000); Healey v. Shalala, 2000 WL 303439, at *10-*11, aff’d, 2000 WL
436618 (D. Conn. Mar. 1, 2000); Vorster v. Bowen, 709 F.Supp. 934, 947 (C.D.Cal. 1989);
David v. Heckler, 591 F.Supp. 1033, 1042-45 (E.D.N.Y. 1984); Buckhanon v. Percy, 533 F.
Supp. 822, 833-34 (E.D. Wisc. 1982); Hegstrom v. Heckler, 590 F. Supp. 121, 126-29 (D.
Oregon 1981); Jones v. Blinziner, 536 F.Supp. 1181, 1197-00 (N.D. Ind. 1982); Hill v.
O’Bannon, 554 F.Supp. 190, 197 (E.D. Pa. 1982); Philadelphia Welfare Rights Organization v.
O’Bannon, 525 F.Supp. 1055, 1060-61 (E.D.Pa. 1981).


                                                  10
recipient’s need for, or right to, the underlying medical service requested by the member, nor the
substantive accuracy of the adverse action.
         Similarly, plaintiffs’ reasonable promptness claim can be determined without assessing
the individual situations of absent class members. The plaintiffs’ challenge is to defendants’ drug
formulary system, which plaintiffs claim is designed and operated to deny access to, or at least
create delay in, the provision of medically necessary medications which are not on PHS’s
“preferred drug formulary.” (White, at 88-90). See “Confidential” PHS Corrective Action
Plan, at 22 (September 30, 2000) (Under Seal Exhibit “Z”). Plaintiffs claim (and PHS concedes
with respect to at least eight or ten drugs) that this system (1) fails to ensure that at least a
temporary supply of all non-formulary covered medications is dispensed to enable the Medicaid
member to seek and obtain prior authorization, and to appeal from an adverse action, without
denial of access in the meantime, and (2) keeps Medicaid members in the dark about the prior
authorization process. Even when a notice is issued, plaintiffs claim that it includes
intentionally misleading information designed to discourage appeals essential to continue
receiving prescribed medications. See Exhibit “21” hereto. Plaintiffs contend that delay in the
authorization of such medications – as evidenced by the facts alleged by A.M. and Grisel
Hernandez – is the inevitable result of this system and that such delay is unreasonable, as a
matter of law, in light of the urgent need of Medicaid members (who lack the resources of
commercial PHS enrollees to exercise the option to pay on their own) for prompt access to
prescribed medications. Courts have routinely determined such issues in class action litigation,
without the need for any individualized inquiry into the situations of absent class members .
See, e.g., Blanco v. Anderson, 39 F.3d 969, 971-73 (9th Cir. 1994); Ladd v. Thomas, 14
F.Supp.2d 222, 225 (D.Conn. 1998); Kessler v. Blum, 591 F.Supp. 1013, 1031-32 (S.D.N.Y.
1984). See also Dodson v. Parham, 427 F.Supp. 97 (N.D. Ga. 1977) (invalidating Georgia
Medicaid system for accessing non-listed prescription drugs).
        The suggestion that the Court will be required to review hundreds of individualized
situations, to determine if a notice is required in each situation, also is a red herring.12


        12
          The questions of whether a notice is required when a doctor changes a proposed course
of action (or a prescription) after PHS suggests an alternative, and when PHS is only willing to
pay for bus transportation when a request for livery transportation has been made -- the two
examples specifically raised by counsel at oral argument -- are actually two of eighteen questions

                                                   11
that PHS itself asked of DSS on several occasions, precisely because they were issues that had
been identified by PHS as repeatedly arising within the Medicaid enrollee population. See
Exhibit “C” hereto. It is telling that PHS chose these two examples, given that both DSS and
PHS have already answered them in the affirmative (i.e., that notice is required in these
situations). See Exhibit “C”(July 20, 2000 Memo from Janice Perkins) and Under Seal Exhibit
“X.” See also Ladd v. Thomas, 962 F. Supp. 284, 291-93 (D. Conn. 1997). In any event, the
broad questions posed by PHS in its correspondence with DSS confirm that these issues, if they
do ultimately have to be resolved at all in this case, will be resolved across the board for all
Medicaid enrollees.


                                               12
III. THE NAMED PLAINTIFFS ARE ADEQUATE TO REPRESENT THE CLASS


       For the first time at oral argument, PHS challenges the adequacy of the class
representatives, asserting that the “true”objective of the named plaintiffs is to obtain an order
prohibiting DSS and PHS from ever denying provider requests for benefits (PHS Power Point
Oral Argument, at 33). This claim is belied by the plaintiffs’ pleadings in this case, which do not
challenge the legality of Medicaid managed care. The plaintiffs’ pleadings do not seek, for
themselves or the class, any order prohibiting defendants from ever denying requests for benefits.
 The deposition testimony on which PHS relies is nothing more than the expression of healthy
skepticism, shared by a large percentage of the general population as well as Connecticut’s
Attorney General in State of Connecticut v. PHS, that managed care organization employees who
have never seen seriously ill children are probably not as able to diagnose and prescribe treatment
for them as their treating providers. It shows the strongly-held feelings of individuals for whom
Medicaid assistance is vital to their well-being and the well-being of their children, such that they
can be expected to pursue their notice and pharmacy prompt access claims with vigor.13
       Finally, PHS’s challenge to the limited knowledge of these low income, medically needy,
plaintiffs, their unfamiliarity with legal jargon (e.g., “notices of action,” “CUTPA” and
“CUIPA”), and their lack of sophistication with respect to the intricacies of deposition
questioning not only does not justify a finding that such individuals are inadequate class
representatives, it is fundamentally insulting. The Supreme Court has expressly disapproved of
attacks on the adequacy of a class representative based on the representative’s ignorance.
Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 370-74 (1966). As Judge Hall recently noted in
certifying a class of “injecting drug users” in Doe v. Bridgeport Police Department, 198 F.R.D.
325 (D.Conn. 2001), “‘[w]here there are legal issues common to the class, the representative who
defends his own interests will also be protecting the interests of the class,’” 198 F.R.D. at 333,
quoting Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483-84 (2d Cir. 1995).

       13
             The class representatives make clear that they are individuals who would be willing
to challenge (and, indeed, in the case of Ms. Hernandez, have challenged) adverse determinations
by PHS. For such individuals, notice of legal rights is not a pro forma matter; rather, it is the
means by which such individuals can assess the validity of PHS’s decisions and prepare a
challenge if they believe the decision to be wrong. They thus will well represent the class.


                                                 13
       Indeed, the cases are uniformly to the contrary. See, e.g., Paper Systems, Inc. v.
Mitsubishi Corp., 193 F.R.D. 601, 609 (D.Wis. 2000); Georgia State Conference of Branches of
NAACP v. Georgia, 99 F.R.D. 16, 34 (S.D.Ga. 1983); Aguirre v. Bustos, 89 FRD 645, 648-49
(D.N.M. 1981); Hernandez v. United Fire Insurance Co., 79 F.R.D. 419, 426 (E.D. Ill. 1978)
(certifying class of minority, primarily low income, purchasers of credit life insurance: “they
displayed awareness that this action concerned a charge of discriminatory pricing. This is in
essence all they could be expected to know from their own experience and all it would be
necessary to have them testify to.”).
       The depositions of the class representatives Jane L. (mother of Karen L.), C.D. (mother of
A.M.), D.P. (mother of K.P.), and Grisel Hernandez show four extremely well-meaning
individuals who want to help similarly-situated families, as well as themselves and their children.
 As Jane L. stated, she came forward as a class representative, “[b]ecause I feel if I and the other
plaintiffs don’t come forward, then nobody – none of the other – how can I say it?. . . I think I
am [a good representative] because I stand up and fight for what I believe is right.” Jane L.
Deposition at p. 86-87 (Transcript Excerpts at Exhibit “D”). In their own fashion, similar
statements were made by the other three named plaintiffs (or their guardians).14 These four class
representatives have spent hours with counsel reviewing their individual claims. They helped
prepare affidavits attesting to their individual facts, and willingly signed them. They traveled for
hours to attend press conferences on the litigation to communicate their stories to the wider
public, including members of the putative class, so that information about basic rights could
somehow be communicated when PHS has blatantly refused to do so, see October 27, 2000
Letter to PHS from absent class member (Exhibit “H”)(indicating she learned of notice rights
from media coverage). They have repeatedly appeared for depositions by defendants at
tremendous personal sacrifice,15 and endured hours of often hostile questioning over two


       14
         See Deposition Transcript Excerpts of C.D., at 126 (Exhibit “E”); D.P., at 135 (Exhibit
“F”) and Grisel Hernandez, at 245-46 (Exhibit “G”).
       15
          For example, K.P. had undergone outpatient surgery two days before the first day of
his mother’s deposition. Because he was too ill to be left alone, he had to travel with his mother
to Hartford to attend her deposition. The deposition had to be stopped that day so that he might
be taken to the hospital when his condition worsened. The second day of deposition had to be
interrupted by numerous calls from doctors as she arranged for another hospitalization.


                                                 14
separate days for each plaintiff. Last, but not least, they are represented by highly experienced
and competent counsel who have vigorously pursued this litigation, a matter readily conceded by
both defendants. See Ladd v. Thomas, 47 F.Supp.2d 236 (D. Conn. 1999); DSS Class
Opposition, at 11 (June 30, 2000).
                                            Respectfully submitted,
                                            THE NAMED PLAINTIFFS


                                  ____________________________
                                          SHELDON V. TOUBMAN


                                          Fed. Bar No. CT08533




                                          ____________________________
                                          SHELLEY A. WHITE
                                          Fed. Bar No. CT05727


                                          NEW HAVEN LEGAL ASSISTANCE


                                              ASSOCIATION, INC.


                                          426 State St.


                                          New Haven, CT 06510


                                          (203) 946-4811




                                          ____________________________



                                                15
RANDI FAITH MEZZY


Fed. Bar No. CT09883


CONNECTICUT LEGAL SERVICES, INC.


85 Central Avenue


Waterbury, CT 06702
(203) 756-8074




_____________________
DOUGLAS CROCKETT
Fed. Bar No. CT06166


CONNECTICUT LEGAL SERVICES, INC.


872 Main Street


P.O. Box 258
Willimantic, CT 06226-0258
(860) 456-1761




PRIYA SINHA CLOUTIER
Fed. Bar No. CT20598
CONNECTICUT LEGAL SERVICES, INC
                    153 Williams Street
                    New London, CT 06320
                    (860) 447-0323




                    Attorneys for the Named Plaintiffs and the Proposed
                    Class




DATE: MAY 3, 2001

								
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