UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION 

CHANDE CRAWLEY, PENNY CARSON, 

LINDA BIRMINGHAM, and 

BRITTANY LOCKERT, on behalf of themselves and

all other similarly situated,

Plaintiffs, Case No. 08-14040

Hon. Denise Page Hood

v. 

ISMAEL AHMED, in his official capacity 

as Director of the Michigan Department of 

Human Services, and JANET OLSZEWSKI,

in her official capacity as Director of Michigan 

Department of Community Health,

Defendants.

 /

ORDER AND MEMORANDUM OPINION CERTIFYING CLASS ACTION, AND

DENYING DEFENDANTS’ MOTION TO DISMISS/SUMMARY JUDGMENT, AND

GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, AND

GRANTING LOCKERT’S MOTION TO INTERVENE AND 

MOOTING LOCKERT’S MOTION FOR EX PARTE TEMPORARY RESTRAINING

ORDER AND PRELIMINARY INJUNCTION

I. INTRODUCTION

This matter is before the Court pursuant to Plaintiffs’ Motion for Immediate Class

Certification [Docket No. 5, filed Sept. 19, 2008]. On October 20, 2008, the Defendants filed a

Response [Docket No. 17], to which the Plaintiffs filed a Reply [Docket No. 21, filed Oct. 29,

2008]. This matter is also before the Court on Plaintiffs’ Motion for Preliminary Injunction

[Docket No. 6, filed Sept. 19, 2008]. On October 20, 2008, the Defendants filed a Response

[Docket No. 16], to which the Plaintiffs filed a Reply [Docket No. 20, filed Oct. 29, 2008]. 

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 The Sixth Circuit Court of Appeals has explained that “a proposed intervenor must

establish four factors before being entitled to intervene: (1) the motion to intervene is timely; (2)

the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the

proposed intervenor’s ability to protect their interest must be impaired in the absence of

intervention; and (4) the parties already before the court cannot adequately protect the proposed

intervenor’s interest.” Coalition to Defendant Affirmative Action v. Granholm, 501 F.3d 775,

779 (6th Cir. 2007). Lockert’s claim falls squarely within the ambit of Fed. R. Civ. P. 24, which

itself must be “broadly construed in favor of potential intervenors.” Id.

2

This matter is also before the Court on Defendants’ Motion to Dismiss and/or Summary

Judgment [Docket No. 15, filed Oct. 16, 2008], to which the Plaintiffs filed a Response [Docket

No. 19, filed Oct. 29, 2008], and the Defendants filed a Reply [Docket No. 23, filed Nov. 7,

2008]. A motion hearing was held on November 14, 2008. 

On May 7, 2009, Proposed Intervenor Brittany Lockert simultaneously filed a Motion to

Intervene as a Plaintiff and Class Representative [Docket No. 24], and a Motion for Ex Parte

Temporary Restraining Order and Preliminary Injunction [Docket No. 25]. The Court now finds

that Proposed Intervenor Lockert has established the requirements of Rule 24(a) of the Federal

Rules of Civil Procedure, and is therefore entitled to intervene.1

 Because the Motion for Ex

Parte Temporary Restraining Order and Preliminary Injunction raises grounds identical to those

being resolved below, the Court deems it moot. 

II. STATEMENT OF FACTS

A. Brief Overview

The Named Plaintiffs are individuals with disabilities whose Medicaid was terminated by

the Defendants, officials within the Michigan Department of Human Services and the Michigan

Department of Community Health. Plaintiffs aver that their Medicaid benefits were terminated,

without a determination of whether Plaintiffs were eligible under a disability-based category. 

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More specifically, the Defendants terminated the Plaintiffs’ Medicaid because they no longer

qualified for Medicaid under the “FIP-related” eligibility categories – that cover children, young

adults, parents and other caretaker relatives who are parenting a dependent child in their care – 

without reviewing their eligibility under disability-based categories. The Plaintiffs also claim

that they did not receive any meaningful, pre-termination notice or opportunity to be heard

regarding their eligibility for Medicaid based on disability. In particular, the Complaint alleges 

the following two counts:

(1) Defendants’ pattern and practice of terminating Plaintiffs’ Medicaid benefits

without first determining whether they are eligible for Medicaid benefits under

disability-based categories, violates Plaintiffs’ rights under 42 U.S.C.

1396(a)(a)(8) and (10), and under the federal regulations implementing those

statutory requirements, 42 C.F.R. 416.916(c) and 435.930(b)...[and that these

rights] are enforceable under 42 U.S.C. 1983.

(2) Defendants’ pattern and practice of terminating Plaintiffs’ Medicaid benefits

without providing them a meaningful pre-termination opportunity to be heard

violates Plaintiffs’ rights to due process under the Fourteenth Amendment to the

United States Constitution and the federal Medicaid laws, 42 U.S.C. 1396a(a)(3)

and under the federal regulations implementing those Constitutional and statutory

requirements, 42 C.F.R. 431.206-.211 and 435.919. Plaintiffs’ right to a

meaningful opportunity to be heard under the Due Process Clause of the

Fourteenth Amendment, 42 U.S.C. 1396a(a)(3), and 42 C.F.R. 431.206-.211 and

435.919, are enforceable under 42 U.S.C. 1983. 

As the requested relief challenges the distribution and termination requirements of federal

Medicaid law, the Court will provide a brief overview of the agencies responsible for Medicaid

and regulations governing the distribution of Medicaid resources.

B. Administrative Agencies Responsible for Medicaid

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

Medicaid program which is intended to provide financial assistance to needy individuals seeking

medical care and treatment. The legislation creates a cooperative health insurance program

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jointly funded and administered by the state and federal governments, “to furnish....medical

assistance on behalf of families with dependent children and of aged, blind, or disabled

individuals, whose income and resources are insufficient to meet the costs of medical services[.]”

42 U.S.C. 1396-1. “Although participation in the program is voluntary, participating States must

comply with certain requirements imposed by the Act and regulations promulgated by the

Secretary of Health and Human Services.” Westside Mothers v. Olszewski, 454 F.3d 532, 535

(6th Cir. 2006). 

Michigan has authorized its participation in the federal Medicaid program through Mich.

Comp. Laws. (“MCL”) §§ 400.105, et seq. The United States Department of Health and Human

Services (“HHS”) oversees the state’s administration of Medicaid benefits to ensure that the state

is in compliance with federal law and therefore should receive matching federal funds. See

Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980). Defendant, Janet

Olszewski, is the Director of the Michigan Department of Community Health (“MDCH”), which

is the single state agency responsible for administration of the federal and state jointly funded

Medicaid Program. 42 U.S.C. § 1396a(a)(5). Defendant, Ismael Ahmed, is the Director of the

Michigan Department of Human Services (“DHS”), which is responsible for administration of

public assistance programs at local levels including making determinations of whether applicants

meet the eligibility requirements of Medicaid. These Medicaid eligibility policies and

procedures are jointly developed by DCH and DHS and are published in the DHS policy

manuals, including the Program Eligibility Manual (“PEM”), the Program Administrative

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 All of the above named manuals are available on the Department of Human Services

website, Policy and Procedure Manuals, http://www.michigan.gov/dhs-manuals (last updated

Nov. 1, 2008).

5

Manual (“PAM”) and the Program Reference Tables.2

C. Medicaid Eligibility Requirements and Pertinent Classifications

Generally, the Medicaid program provides payments for medical costs incurred by

individuals that fall within the statutory eligibility requirements, including certain low-income

children, families with children, pregnant women, disabled adults, and elderly people who meet

financial and non-financial eligibility criteria. See 42 U.S.C. 1396a(a)(10)(A), 1396a(a)(10)(C),

1396a(e), 1396a(l)(2)(A)-4(A), 1396d(a), 1396r-6(a), 1396u-1(b). The Michigan Department of

Human Services applies the same eligibility requirements to determine if an applicant qualifies

for one of the many health care programs that are administered by the Michigan Department of

Community Health. While there are several such Medicaid sub-programs, they are generally

grouped in two broad subdivisions: Family Independence Program (“FIP”) and Supplemental

Security Income (“SSI”). The FIP category usually covers families with dependent children,

caretaker relatives of dependant children, persons under age 21, and pregnant and recently

pregnant women. PEM 105 at 1. The SSI category covers persons who are elderly, disabled, or

blind. Id. Eligibility based on such a disability further requires a determination by the Social

Security Administration, or by a state Medical Review Team, accordingly, individuals who

receive SSI income are automatically eligible for Medicaid. 42 C.F.R. § 435.120. To be eligible

for Medicaid disability benefits, an applicant must meet “the eligibility standards for

supplemental security income under title XVI [of the Social Security Act].” MCL

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 Defendants follow the same disability eligibility determination regulations as

promulgated by the Social Security Administration. 20 C.F.R. § 416.920(a)(4)(i)- (4)(v)

provides the five step inquiry required to determine if an applicant is disabled.

4

 AFDC stands for Aid to Families with Dependent Children (the name of the cash

assistance program under Title IV-A of the Social Security Act prior to the passage of the

Temporary Assistance for Needy Families block grant program on July 16, 1996).

6

400.106(1)(b)(vi) (citing 42 U.S.C. §§ 1381-1385).3

 Of particular importance in the instant

action is whether a recipient may transition from an FIP-related category to an SSI-related

category upon termination of FIP eligibility. 

In either the SSI or FIP category, a recipient of benefits may be classified as

“categorically needy” or “medically needy.” If an applicant is “categorically needy,” he or she is

entitled to both financial and medical assistance. This group includes individuals who

automatically qualify for Medicaid, like SSI recipients, and people who qualify as a “Low

Income Family,” under the AFDC program.4 In Michigan, families with children that receive

FIP cash assistance automatically qualify for Medicaid under the categorically needy designation

as a Low Income Family. A “medically needy” designation means that the recipient is only

eligible for medical benefits, and does not receive SSI or FIP cash benefits.

D. Application for Medicaid Benefits

When applying for Medicaid in Michigan, individuals can apply for all Medicaid

categories pursuant to the DHS Assistance Application (form DHS 1171). This application

seeks general information regarding the applicant’s residence, family, medical history, medical

coverage, assets, vehicles, employment, income, disability benefits, dependent care expenses,

and voter registration. [ See, e.g. DHS Assistance Application, Form DHS 1171, Compl. Ex. A]. 

The application helps the state to determine whether a person qualifies under a particular

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Medicaid category and for a particular sub-program. Michigan Medicaid Policy provides that,

“Persons may qualify under more than one MA [Medicaid Assistance] category. Federal law

gives them the right to the most beneficial category. The most beneficial category is the one that

results in the eligibility or the least amount of excess income.” PEM 105 at 2. 

DHS has additional procedures for obtaining and reviewing medical information when an

individual’s eligibility for a disability-based Medicaid category is being considered. PEM 260,

PAM 815. These additional procedures are employed when the applicant is not automatically

qualified because he or she is already been found disabled by the Social Security Administration

under the SSI or the Social Security Retirement, Survivors, and Disability Insurance programs. 

PEM 150, and 260; PAM 815. Michelle Best, a State Administrative Manager for the Michigan

DHS, testifies that claimants who are not automatically approved for disability-based Medicaid

category, must fill out an application for disability-based benefits. [Affidavit of Michelle A.

Best, Oct. 20, 2008 (“Best Affidavit”)] On this form, the claimant lists doctors and any other

relevant information that would assist in making a determination for Medicaid, and also signs

blank medical releases in order to obtain medical records. This may result in a referral to a clinic

or doctor for an evaluation. The application is then referred to a Medical Review Team,

composed of a physician and a medical consultant, who reviews the file and either finds

disability or denies the application. However, Plaintiffs contend that there is no additional

application for Medicaid benefits other than the initial DHS 1171 form, and that Defendants’

caseworkers are instructed to request any additional information if it is needed to review the

applicant’s eligibility for Medicaid based on disability.

E. Named Plaintiffs

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Plaintiffs claim that at the time of the filing of this action each of the Named Plaintiffs

had been terminated from their FIP-related Medicaid and were forced to rely Genesee Health

Plan B (“GHP-B”) for medical coverage, despite their eligibility for SSI-related Medicaid

benefits. Plaintiffs posit that GHP-B provides very limited medical coverage for uninsured

residents of Genesee County. GHP-B does not cover many of the medical services that are

available under Medicaid, including inpatient and outpatient hospital care, emergency room

services, medical transportation assistance, dental or optical services. While GHP-B does

provide for some specialist care, diagnostic testing, mental health services, and prescription

medications, it requires higher payments and increased co-payments than most Medicaid

recipients pay. At the time of filing, the following three Plaintiffs were unable to work because

of their medical problems, and were relying on GHP-B medical coverage:

(1) Chande Crawley

Chande Crawley is a Genesse County, Michigan resident, who lives with her husband

and 18-year-old daughter. Crawley applied for Medicaid on April 28, 2008, after two

hospitalizations for liver failure and severe abdominal infections. Crawley indicates that prior to

her liver failure that her family was suffering financial hardship, despite the fact that both she

and her husband were employed. Crawley claims that throughout the months of April, May, and

June of 2008, she left messages with her DHS casework in an effort to obtain Medicaid coverage

so that she could receive treatment for her liver failure and abdominal infections. Crawley

would occasionally receive notices from DHS regarding her Medicaid eligibility, but around

June 2008 her caseworker notified her that she “would no longer be able to qualify by submitting

bills showing that [she] had met [her] deductible or spenddown amount, because [her] daughter

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was 18 and was graduating from highschool.” [Declaration of Chande Crawley, September 18,

2008 (“Crawley Declaration”), Mot. for Prel. Inj., Ex. A]. On July, 18, 2008, DHS officially

notified Crawley that her Medicaid coverage would end for the same reason.

Crawley avers that her caseworker requested that she complete a new Medicaid

application, but not to mail it in until the end of July 2008. Crawley claims that her caseworker

was aware of her liver failure as early as April 2008, “but never asked [her] for any medical

records or release forms until [she] sent in the new application at the end of July.” [Crawley

Declaration]. Crawley claims that the lapse in Medicaid coverage caused her to miss a series of

appointments at the Henry Ford Hospital Transplant Institute that were necessary to be placed on

the liver transplant waiting list. At that time, Crawley was relying on GHP-B, which did not

cover treatment at Henry Ford Hospital Transplant Institute, nor certain prescription

medications.

On August 28, 2008, the Social Security Administration sent Crawley a notice that

indicated she was disabled pursuant to the SSI guidelines. After conversations with counsel,

Crawley gave the notice to her DHS caseworker on September 3, 2008. The Defendants contend

that Crawley was approved for disability related Medicaid on September 17, 2008, and is a

current Medicaid recipient. [Best Affidavit].

(2) Penny Carson

Penny Carson is a Genesee County, Michigan resident, who lives with her elderly

brother, and 18-year-old son. Penny Carson claims that she has “both mental and physical

problems that make it impossible for [her] to work, including glaucoma, depression and bi-polar

disorder, high blood pressure, sleep apnea, high cholesterol, low thyroid, diabetes, and joint

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problems.” [Declaration of Penny Carson, September 18, 2008 (“Carson Declaration”), Mot. for

Prel. Inj., Ex. B]. Carson also received surgery on her left foot and right knee, which restricts

her ability to walk.

According to Carson, DHS stopped her cash assistance and Medicaid because her son

graduated from high school. She claims that her only income since June 2008 has been $298.00

a month in food stamps because her FIP-related cash benefits were terminated. Carson alleges

that during an annual review of her eligibility assistance in March 2008, she indicated that she

was disabled and appealing her SSI case. Carson further avers that no one from DHS asked her

for her medical records or to sign a medical release form.

Carson alleges that her GHP-B medical coverage does not permit her to continue

treatment with her usual therapist. Carson also indicates that GHP-B does not cover all of her

medications, specifically those prescribed for her depression and leg cramps. After speaking

with counsel, Carson reapplied for Medicaid and state disability assistance on September 5,

2008. Defendants contend that if her application based on disability is approved, she may obtain

retroactive coverage to July 1, 2008. [Best Affidavit].

(3) Linda Birmingham

Linda Birmingham received Medicaid and FIP cash assistance for several years

beginning in 2005. She qualified for cash assistance because of her 13-year-old son. Linda

claims to be disabled because of a “degenerative disk disease in [her] neck, which causes

numbness in [her] arms and hands; lower back problems that result in severe pain down [her] left

hip, leg, knee and ankle; bipolar disorder and depression; osteoarthritis; and carpal tunnel

syndrom.” [Declaration of Linda Birmingham, September 18, 2008 (“Birmingham Declaration”),

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Mot. for Prel. Inj., Ex. C]. Birmingham also had two lower back surgeries for lumbar

laminectomy with fusion, in 1988 and 1990.

In June of 2008, Birmingham received a notice from DHS indicating that she was no

longer eligible for Medicaid because the court had removed her son from her home. 

Birmingham claims that her Medicaid was terminated despite indicating that she was disabled in

her 2007 Medicaid application. Birmingham further avers that after seeking information about

receiving Medicaid and cash assistance based on her disability, the case worker responded that

“she didn’t know what [Birmingham] was talking about and [she] could not get Medicaid or cash

assistance now that [her] son [was] not living with [her].” [Birmingham Declaration]. 

Birmingham states that it has been much more difficult to get her necessary health care under the

GHP-B, and that she had to stop seeing her usual doctor. Birmingham further alleges that she

now is unable to afford all of her prescription medication because of the increased co-payment

rates.

The Defendants contend that Ms. Birmingham applied for disability related Medicaid on

July 23, 2008. This application was denied by the Medical Review Team on September 15,

2008, based on a finding that Birmingham was not disabled. [Best Affidavit].

III. STANDARD OF REVIEW

The Defendants’ motion to dismiss is brought pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure which allows a defendant to move for dismissal of all or part of a

complaint if it fails to state a claim upon which relief may be granted. When analyzing the

sufficiency of a complaint, the Court applies the principle that a complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 554, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff is not required to provide

“heightened fact pleading of specifics,” but must allege facts sufficient to “raise a right to relief

above the speculative level.” Id. at 555. Additionally, all of a plaintiff’s factual allegations must

be taken as true in considering a motion to dismiss. Ricco v. Potter, 377 F.3d 599, 603 (6th Cir.

2004).

In the alternative, the Defendants have also brought a motion for summary judgment

under Rule 56. Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 91 L. Ed. 2d 265

(1986). A dispute over a material fact is not “genuine” unless a reasonable jury could return a

verdict for the nonmoving party.

In reviewing a party’s motion for summary judgment, all evidence must be viewed in a

light most favorable to the nonmoving party, and summary judgment is appropriate whenever the

nonmoving party “fails to make a showing sufficient to establish the existence of an element

essential to the party’s case, and on which that party will bear the burden of proof at trial.” 

Celotex, 477 U.S. at 332. Ultimately, the standard for determining whether summary judgment

is appropriate is “whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Booker v.

Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

IV. LAW & ANALYSIS 

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A. Class Certification

Plaintiffs proffer that the instant action would best be brought as a class action suit

pursuant to Fed. R. Civ. P. 23, as the proposed class meets all of the requirements under the rule. 

However, the Defendants contend that the Plaintiffs’ proposed class does not establish

numerosity, commonality, typicality, or adequacy of representation, and as such class

certification is unwarranted.

The principal purpose of class actions is to achieve efficiency and economy of litigation,

both with respect to the parties and the courts. See Gen. Tel. Co. v. Falcon, 457 U.S. 147, 159,

102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982). The Supreme Court has observed that, as an exception

to the usual rule, litigation is conducted by and on behalf of individual named parties, “[c]lass

relief is ‘peculiarly appropriate’ when the ‘issues involved are common to the class as a whole’

and when they ‘turn on questions of law applicable in the same manner to each member of the

class.’” Id. at 155 (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979)). The Supreme

Court directs that, before certifying a class, district courts must conduct a “rigorous analysis” of

the prerequisites of Rule 23 of the Federal Rules of Civil Procedure. See Falcon, 457 U.S. at

161. The Sixth Circuit has stated that district courts have broad discretion in deciding whether to

certify a class, but courts must exercise that discretion within the framework of Rule 23. 

Coleman v. General Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002); In re Am.

Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Plaintiffs’ proposed class must first satisfy

the four threshold requirements of Rule 23(a): numerosity, commonality, typicality, and

adequacy of representation. If each of these four prerequisites is established for the class,

Plaintiffs must then show that the class can be maintained under one of the theories available

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under Rule 23(b). Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976). The burden

of establishing all of the necessary requirements rest on the party seeking class certification. In

re Am. Med. Sys. Inc, 75 F.3d at 1086. 

Although a court considering class certification may not inquire into the merits of the

underlying claim, a class action may not be certified merely on the basis of its designation as

such in the pleadings. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S. Ct. 2140, 40

L. Ed. 2d 732 (1974); In re Am. Med. Sys., Inc., 75 F.3d at 1069. In evaluating whether class

certification is appropriate, “it may be necessary for the court to probe behind the pleadings...”,

as the issues concerning whether it is appropriate to certify a class are often “enmeshed” within

the legal and factual considerations raised by the litigation. Falcon, 457 U.S. at 160; see also In

re Am. Med. Sys., Inc., 75 F.3d at 1079; Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200

(6th Cir. 1974). 

(1) Class Definition

The Named Plaintiffs seek an order certifying this matter to proceed as a class action, the

proffered class is described as follows:

all former, current and future Michigan Medicaid recipients with disabilities

whose Medicaid eligibility was terminated within three years prior to the date of

this complaint (or will be terminated in the future) because they no longer qualify

for Medicaid under FIP-related eligibility categories, without first being evaluated

for eligibility for Medicaid based on disability, and without being provided a pretermination notice and opportunity for a hearing concerning their eligibility for

Medicaid based on disability.

However, as a preliminary matter, the Defendants contend that the above referenced class

definition is overly broad. In particular, Defendants argue that because the class definition

incorporates individuals who only allege their disability, the proposed class may contain

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members who have not been, and will not be, harmed by the acts of the Defendants. As a result

the Defendants submit that a proper class will exclude persons who have not been harmed by the

challenged actions. In sum, Defendants claim that not all FIP-related Medicaid recipients who

allege disabilities will be found disabled for the purposes of SSI-related Medicaid. In response,

Plaintiffs argue that a determination of an applicant’s disability, regardless of the outcome, has

no bearing on his or her pre-termination right to continued benefits “while the state reviews and

determines whether the individual is eligible under other categories.” Plaintiffs further submit

that all of the individuals in the proposed class have been harmed because all have been

prematurely terminated from Medicaid, without pre-termination review and without notice that

gives them an opportunity to be heard on the issue of disability, in violation of the law.

“In order for there to be a proper class action it is... axiomatic that there must be a class.” 

Barnes v. Board of Trustees, 369 F. Supp. 1327, 1332 (W.D. Mich. 1973). Before engaging in a

“rigorous analysis” of the Rule 23(a) factors, this Court must first determine that a sufficiently

defined “class” exists. 7A Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 1760 (3d ed. 2006). “In order to determine whether the class action is proper, the

district court must determine whether a class exists and if so what it includes. Although not

specifically mentioned in the rule, the definition of the class is an essential prerequisite to

maintaining a class action.” Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976).

Consequently, this Court must first examine whether a precisely defined class exists and then

examine whether the Named Plaintiffs are members of the proposed class. Turner, 2008 U.S.

Dist. Lexis 2410 at *26 (citing East Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395,

403 (1977) (discussing membership in a proposed class)).

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While class definitions vary depending on the particular situations of the case, important

elements of defining a class include: (1) specifying a particular group that was harmed during a

particular time frame, in a particular location, in a particular way; and (2) facilitating a court’s

ability to ascertain its membership in some objective manner. See Crosby v. Social Sec. Admin.,

796 F.2d 576, 580 (1st Cir. 1986). The class definition is of “critical importance as it identifies

the persons (1) entitled to relief, (2) bound by the judgment, and (3) entitled to notice in a Rule

23(b)(3) action.” Zapata v. IBP, Inc., 167 F.R.D. 147, 156 (D. Kan. 1996). Where extensive

factual inquiries are required to determine whether individuals are members of a proposed class,

class certification is likely improper. Snow v. Atofina Chemicals, Inc., 2003 U.S. Dist. Lexis

27295, 2006 WL 1008002, at *8-9 (E.D. Mich. March 31, 2003). Greater precision is required

in defining a class when compensatory relief is sought, rather than injunctive or declaratory

relief. Zapata, 167 F.R.D. at 156.

Under the present circumstances, the Court finds that Plaintiffs have advanced a

sufficiently defined class for the purposes of a Rule 23(b)(2) class. Contrary to Defendants’

assertions, the class appears to be limited to individuals that are harmed by a premature

termination of Medicaid benefits. The Court does recognize that it includes prospective

members, but only those who “will be terminated in the future.” However, the inclusion of

persons who may not be identifiable at present, or even the fact that class membership may

change by the end of trial does not serve as an impediment to class certification. Caroline C. ex

rel. Carter v. Johnson, 174 F.R.D. 452, 461 (D. Neb. 1996) (listing cases in which courts have

certified or affirmed the certification of classes that included persons who would be subjected to

unlawful policies in the future). The Court also finds that the Defendants’ argument

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inappropriately limits the alleged harm to individuals whose FIP-related Medicaid was

terminated despite being eligible for the SSI-related category; yet, the alleged harm is a

termination of FIP-related Medicaid benefits, regardless of the final adjudication of disability. 

The Court is also unpersuaded by the Defendants’ reliance on Baxter v. Mintner, 378 F.

Supp. 1213 (D. Mass. 1974), as that court specifically noted that “[t]he plaintiff did not press for

formal certification of the class, nor did she seek discovery to assist her in establishing the

existence of a class.” Id. at 1215. That court was forced to rely on stipulated facts, a single

statistical reference, and mere allegations of the existence of a class. Id. at 1215-16. 

Conversely, the Named Plaintiffs in the instant action have submitted a sufficiently defined

class, additional statistics, and have formally moved for class certification. This Court finds

merit in the Plaintiffs’ reliance on Crippen v. Kheder, 741 F.2d 102 (6th Cir. 1984). In Crippen,

the Sixth Circuit ruled that persons who receive benefits under the Medicaid Act are entitled to

the continued receipt of Medicaid benefits pending a final determination of ineligibility. Id. at

107. In so ruling, the Court permitted the certification of a similar, if not more broadly defined

class:

...any and all persons who are treated by the state as presumptively ineligible for

medicaid solely because their SSI has been terminated, regardless of whether such

persons receive the due process notice and opportunity for hearing. 

Id. at 104. As such, this Court finds that the Plaintiffs’ proffered class is well-defined and not

overly broad. 

(2) Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). In Senter, the Sixth Circuit explained that there is “no

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specific number below which class action relief is automatically precluded.” 532 F.2d at 523

n.24 (6th Cir. 1976). Likewise, there is “no automatic cut off point at which the number of

plaintiffs make joinder impractical.” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th

Cir. 2004). However, the “sheer number of potential litigants in a class, especially if it is more

than several hundred, can be the only factor needed to satisfy [numerosity].” Id. Apart from

class size, other case-specific factors that courts should consider in determining whether joinder

is impracticable include: judicial economy, geographical dispersion of class members, ease of

identifying putative class members, and practicality with which individuals putative class

members could sue on their own. See Alba Conte & Herbert Newberg, 1 Newberg on Class

Actions § 3:6 (4th ed. 2003)(“Newberg”); see also Cannon v. GunnAllen Fin., Inc., 2008 WL

4279858, 2008 U.S. Dist. Lexis 86623, at *12 (M.D. Tenn. Sept. 15, 2008).

In the instant matter, Plaintiffs assert that the exact number of class members is in the

exclusive control of the Defendants, but still provide the following:

Upon information and belief, at least 5% of the individuals who are terminated

from full coverage under FIP-related Medicaid categories each year are applying

for SSI or Social Security disability benefits and/or have disclosed to DHS that

they are disabled or unable to work. Therefore, at least 200 individuals each year

are subjected to the policy and practice challenged in this case and at least 600

individuals have been subjected to the policy and practice within the past 3 years. 

The Plaintiffs arrive at the above figure based upon: (1) the total number of Michigan adults who

receive Medicaid based upon FIP-related eligibility categories; (2) an approximate number of

individuals who are on FIP-related Medicaid who are also in the process of qualifying for a

disability through the Social Security Administration; (3) an approximate number of individuals

who are terminated from various FIP-related Medicaid categories because they no longer have

dependent children, or no longer qualify as a child or young adult; (4) an approximate number of

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5

 Plaintiffs submit that the above approximations were derived from the DHS report on

Medical Assistance (MA) Closures from Jan. 2007 through August 2007.

19

individuals who are terminated from various FIP-related Medicaid categories because they are

no longer financially eligible under FIP-related methodologies.5 The Plaintiffs further argue that

the numerosity requirement has been met based upon other factors such as the fluidity,

geographic diversity, and the financial inability of the class members to bring individual claims. 

The Defendants contend that the Plaintiffs’ class is unable to establish numerosity by

relying on speculative data. The Defendants also rely on Hill v. Heckler, 592 F.Supp. 1198

(W.D. Okla 1984) to demonstrate that a similar numerosity rationale had been rejected by that

court. The Defendants also provide their own statistical data in order to establish that Plaintiffs’

proffered class is “statistically unlikely” to establish a medical disability for purposes of SSIrelated Medicaid benefits. This Court is unpersuaded by the Defendants’ arguments. The Court

first notes that the Defendants’ reliance on Hill v. Heckler is misplaced, as it again rests on the

assumption that the proffered harm is the wrongful termination of Medicaid benefits when an

applicant would properly qualify as disabled, instead of the termination of Medicaid benefits

prior to a determination that the applicant would have qualified under a disability-based

Medicaid benefits. Moreover, the Defendants’ Response provides further statistical data that in

itself appears to establish the element of numerosity. 

On balance, the Plaintiffs are correct in that a conservative reading of statistics, combined

with other realties, demonstrate that joinder would be impracticable. After combining both

parties’ statistical data, the Plaintiffs submit the following figures:

(1) the MRT would decide that 50 of the 200 recipients (25%) claiming disability,

are in fact disabled, and thus were entitled to Medicaid even under the

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Defendants’ analysis of the law.

(2) the MRT would decide that 100 of the 200 recipients claiming disability are

not entitled to disability-based Medicaid; but those recipients nevertheless would

be entitled to continued Medicaid while the review was being conducted and they

would be entitled to a pre-termination notice and opportunity to be heard before

the termination based on lack of disability went into effect.

The proffered class is also composed of individuals across the state of Michigan, as the

challenged policy is a statewide policy. Another factor in favor of numerosity is the practicality

by which putative class members could sue on their own, under the instant circumstances most

of the class members have little to no income, which most likely makes it difficult to sue on their

own. Consequently, this Court finds that the element of numerosity has been met, as “the class

is so numerous that joinder of all members is impracticable.”

(3) Commonality

In order to establish commonality, the Plaintiffs must demonstrate that “there are

questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The Sixth Circuit has

characterized the commonality requirement as “qualitative rather than quantitative” and has

observed that “[v]ariations in the circumstances of class members are acceptable, as long as they

have at least one issue in common.” See In re Am. Med. Sys., Inc., 75 F.3d at 1080; Bacon, 370

F.3d a 570. This common issue must be one “the resolution of which will advance the

litigation.” See Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). 

Plaintiffs assert that there are two questions of law that are common to the class:

(1) Whether the Defendants’ termination of full coverage Medicaid without a

review of the class members’ eligibility based on disabilities violates their rights

under the federal Medicaid statute, 42 U.S.C. 1396a(8) and (10) as implemented

by C.F.R. 435.916(c) and .930(b); and

(2) whether the Defendants’ termination of Medicaid without providing pre2:08-cv-14040-DPH-MKM Doc # 26 Filed 05/14/09 Pg 20 of 55 Pg ID 757
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termination notice and opportunity to be heard regarding disability-based

eligibility violates class members’ rights under the due process clause of the

Fourteenth Amendment to the Constitution, the federal Medicaid statute, 42

U.S.C. 1396(a)(3), and implementing regulations, laws implementing that provision, and 42 C.F.R. 431.2

The Defendants again surmise that to fit within the Plaintiffs’ proffered class would “require a

separate adjudication of disability” as to each class member. [Resp. to Mot. to Certify Class, p.

6]. Defendants further argue that the potential factual distinctions between the proffered class

members “are more varied and disparate than is appropriate to the class action device.” [Id., p.8]. 

This Court finds Defendants’ reasoning unpersuasive. 

The Defendants continue to insist that the class definition proposed by Plaintiffs requires

an adjudication as to whether a putative member would qualify for disability under 20 C.F.R. §

416.920(a)(4)(i)-(4)(v) (setting forth a five step determination of disability for purposes of the

Social Security Administration). While not yet addressing the merits of this argument, the Court

finds that the Plaintiffs are not advancing the legal definition of disability for the purposes of

class certification. Under the Plaintiffs’ proposed class definition, no adjudication as to legal

disability is required; instead, Plaintiffs seek to represent a group of recipients “who have

indicated or ‘claimed’ that they have a disability that prevents them from working.” [Reply to

Resp. to Certify Class, p.3]. As such, Defendants’ arguments regarding separate adjudications

for each class member are inapposite. The Court also notes that the Defendants’ cited factual

variations between the class members will not affect the Court’s resolution of the proposed legal

question. Accordingly, this Court finds that the proposed legal questions are common to the

class for purposes of Rule 23(a)(2).

(4) Typicality

Rule 23(a)(3) requires that “claims or defenses of the representative parties are typical of

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claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Rule 23(a)(4)’s typicality requirement

ensures that the representative party adequately protects the interests of the proposed class. See

Newberg § 3:13 (“Typicality determines whether a sufficient relationship exists between the

injury to the named plaintiff and the conduct affecting the class, so that the court may properly

attribute a collective nature to the challenged conduct.”). The Sixth Circuit has similarly

concluded a proposed class representative’s claim is typical if “it arises from the same event or

practice or course of conduct that gives rise to the claims of other class members, and if his or

her claims are based on the same legal theory.” In re Am. Med. Sys. Inc., 75 F.3d at 1082. 

Consequently, in situations where typicality is found, “the representative’s interests will be

aligned with those of the represented group, and in pursuing his own claims, the named plaintiff

will also advance the interest of the class members.” Id. In Sprague, the Sixth Circuit described

the typicality requirement, “as goes the claim of the named plaintiff, so go the claims of the

class.” 133 F.3d at 399.

Plaintiffs submit that the position of the Named Plaintiffs is no way antagonistic to the

unnamed class, as both share a common interest in “having continued Medicaid health care

coverage and in having it terminated only in accordance with the protections of the federal

Constitution and Medicaid laws.” [Motion to Certify Class, p. 10] However, the Defendants

contend that because the potential class includes so many factual variations, and complex

policies and programs, the interest of one Medicaid sub-group may come into conflict with the

interest of another sub-section. In support of this contention, the Defendants provide several

potential distinctions: (1) the myriad of reasons eligibility may terminate; (2) certain classes of

eligibility that automatically open based on the termination of a specific FIP-related sub-groups;

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(3) the “categorically needy” and “medically needy” group designations; (4) and a federally

mandated priority that is accorded to categorically needy Medicaid recipients. The Defendants

further allege that these conflicts extend to the three Named Plaintiffs as Carson and

Birmingham are categorically needy, but Crawley was only medically needy. The Court finds

Defendants’ reasoning unpersuasive.

After examining the requested relief of the Named Plaintiffs and putative class, it appears

that it arises in response to the Defendants allegedly unlawful conduct of terminating Medicaid

benefits prior to a determination of disability. While the Court notes Defendants’ multiple

divisions and cited differences, it is unable to ascertain how these differences make the

representative parties’ claims atypical, or create a conflict in regards to the legal claims asserted

by the Plaintiffs. In particular, it appears that both the representative parties and the proffered

class members would benefit from sustained Medicaid benefits during the determination period,

regardless of their particular categorization, or the priority accorded to their specific designation

as either categorically needy or medically needy. Accordingly, this Court finds that the claims

and defenses of the representative parties are typical of the claims and defenses of the class. See

Beattie v. CenturyTel, Inc., 511 F.3d 554, 561-62 (6th Cir. 2007) (where the Sixth Circuit found

that, despite variations in the individual circumstances of each class member, where the claims

of the proposed class (1) arose from the same “allegedly deceptive” conduct and (2) were

premised on the same “allegation,” the alignment between the interests of the class

representatives and the proposed class was sufficient for the typicality threshold to be satisfied.). 

In reference to this proposed class, the requirements of typicality are satisfied. The

claims of the class representatives and the claims of the proposed class arise from the same

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alleged unlawful termination of Medicaid benefits. Further, the claims of the Named Plaintiffs

and the claims of the proposed class proceed on the basis of the same legal theory – that the

Defendants’ termination of the Medicaid benefits prior to a determination that the applicant is

disabled, without first being evaluated for eligibility based on disability, and without first being

provided a pre-termination notice and opportunity for a hearing concerning their eligibility for

Medicaid based on disability – violates federal Medicaid law and the Constitution. All of the

Named Plaintiffs’ declarations evidence an identical harm based on this alleged unlawful

conduct. Accordingly, the interest of the class representatives and the class align and, by

bringing this litigation, the class representatives will necessarily advance the interests of the

absent class members. Consequently, the Plaintiffs have met their burden of establishing

typicality. See In re Am. Med. Sys. Inc., 75 F.3d at 1082.

(5) Adequate Representation

Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Rule 23(a)(4) inquiry “serves to

uncover conflicts of interest between named parties and the class they seek to represent.” Beatie,

511 F.3d at 562. To alleviate these conflict of interest concerns, the plaintiffs must show that (1)

the class representatives have a common interest with the rest of the class; and (2) the class

representatives will vigorously prosecute the interests of the class through qualified counsel. Id.

at 562-63. The common interest criterion necessitates the absence of antagonism or conflict of

interest between the class representatives and the other members of the class they seek to

represent. See In re Am. Med. Sys., 75 F.3d at 1083. The second criterion inquires into the

competency of the counsel. See id.

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As to the first criterion, the Plaintiffs argue that there is no antagonism between the class

representatives and the rest of the proposed class because all of the Plaintiffs seek to prove that

Defendants’ alleged actions violate both federal Medicaid law and the federal Constitution. 

However, Defendants contend that the “sub-groups in the proposed class will potentially be at

war with one another in competition for scarce medical assistance resources,” as evidenced by

the distinctions between the three named Plaintiffs. [Resp. to Mot. to Certify Class, p.11]. The

Defendants further allege that the subgroups differ in terms of notice. More specifically,

Defendants argue that depending on the type of FIP-related benefits being received that some

notice is inherent, like parents whose benefits are terminated because their child reaches the age

of 18, while other terminations may be unforeseeable, like when the courts remove a child from

the parent’s home. As discussed in the typicality requirement, the Court is unable to ascertain

how these distinctions create a conflict of interest between the representative parties and the

unnamed class members. The Plaintiffs’ challenge does not appear to contest the priority that

Defendants accord to those designated categorically needy, but instead focuses on the

termination of pre-set benefits, regardless of the amount. Nor does the Court find that there is

any conflict based on notice, inherent or actual, that would place the parties in conflict.

As to the second criterion, the Plaintiffs assert that the class counsel has experience in

class actions, and has provided resumes that demonstrate sufficient experience in class action

suits related to Medicaid. The Defendants do not challenge the Plaintiffs on this issue. 

Accordingly the Plaintiffs have satisfied the requirements of Rule 23(a)(4). 

Having found that the Plaintiffs have demonstrated the existence of each Rule 23(a)’s

prerequisites, the Court must now determine whether the Plaintiffs’ case also falls within at least

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one of the subcategories of Rule 23(b). See In re Am. Med. Sys., 75 F.3d at 1079.

(6) Certification under Rule 23(b)

In addition to meeting the four requirements of Rule 23(a), a proposed class must meet at

least one of the requirements of Rule 23(b). Here, the Plaintiffs suggest that the certification of

their proposed class is appropriate under Rule 23(b)(2). Certification under Rule 23(b)(2) is

appropriate 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.” Fed. R. Civ. P. 23(b)(2).

The Plaintiffs assert that this case should be certified under Rule 23(b)(2) because the

Defendants have exhibited an unlawful pattern and practice that applies to all of the proposed

class members. The Plaintiffs further assert that Rule 23(b)(2) certification is appropriate as

Plaintiffs only seek injunctive and declaratory relief, in particular that Medicaid benefits would

continue for class members until the Defendants determine if class members are entitled to

benefits under a disability-based category, and institute notice, and an opportunity to be heard

regarding disability-based eligibility. The Defendants contend that certification under Rule

23(b)(2) is not proper because the members of the proposed class are not uniformly injured or

uniformly treated.

This Court finds that the proposed class is well-suited for certification under Rule

23(b)(2). The Plaintiffs ask this Court to determine whether the Defendants’ actions constitute

violations of Medicaid related statutes and the Due Process clause of the Fourteenth

Amendment. The putative class members request that this Court order Defendants to cease the

alleged violations. Additionally, the Plaintiffs only seek declaratory and injunctive relief. 

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Accordingly, the Court finds that Rule 23(b)(2) certification is appropriate. 

B. Preliminary Injunction & Motion to Dismiss/ Summary Judgment

The decision to grant injunctive relief is within the discretion of the district court. 

Golden v. Kelsey -Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). A preliminary injunction serves

to protect the status quo pending a final determination of the lawsuit. University of Texas v.

Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981). In granting a

preliminary injunction, a court must determine whether: (1) the plaintiff has shown a strong

likelihood of success on the merits; (2) irreparable harm could result to the plaintiff if the

preliminary injunction is not issued; (3) the threatened harm to the plaintiff outweighs the

threatened harm that the injunction may inflict upon the defendant; and (4) the granting of the

preliminary injunction will serve the public interest. Jones v. City of Monroe, 341 F.3d 474, 476

(6th Cir. 2003). Although these four considerations are not obligatory, they are factors that must

be balanced in order to weigh the claims of irreparable harm and likelihood of success on the

merits by the aggrieved party. Id. The Sixth Circuit Court of Appeals has described the issuance

of a preliminary injunction as an “extraordinary remedy” that “should be granted only if the

movant carries [its] burden of proving that the circumstances clearly demand it.” Overstreet v.

Lexington-Fayette Urban Co. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). The Court is not

required to make specific findings as to each of the factors if fewer factors are dispositive of the

motion. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003) (citing inter alia In re De

Lorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985)). As the Defendants have moved for

summary dismissal, the Court will consider the pending motion under the first prong of the

preliminary injunction analysis.

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(1) Likelihood of Success on the Merits

(a) Count I

In reference to Count I, Plaintiffs submit that federal law requires Defendants to review

the Plaintiffs’ eligibility for disability-based SSI-related Medicaid eligibility categories when

they no longer are eligible to receive Medicaid under FIP-related eligibility categories, before

terminating their Medicaid. In essence, Plaintiffs argue that federal Medicaid law prohibits the

state from terminating an individual’s Medicaid benefits based solely on the fact that they no

longer qualify under one particular category, unless eligibility under the other categories has

been ruled out as well. In support of this legal theory, Plaintiffs rely on 42 U.S.C. 1396(a)(8)

and (a)(10), which provide:

(a)(8) [A State plan for medical assistance must] – provide that all individuals

wishing to make an application for medical assistance under the plan shall have

opportunity to do so, and that such assistance shall be furnished with reasonable

promptness to all eligible individuals

...

(a)(10)(A) [A state plan for medical assistance must–] provide for making

medical assistance available, including at least the care and services listed in

paragraphs (1) through(5), (17) and (21) of Section 1396(d)(a) of this title to ... all

individuals [qualifying under the enumerated provisions (i)(I)-(VII)].

Plaintiffs further rely on the accompanying Department of Health and Human Services’

regulation, which indicates that, “[t]he agency must – [c]ontinue to furnish Medicaid regularly to

all eligible individuals until they are found to be ineligible.” 42 C.F.R. 435.930(b). Plaintiffs

argue that Defendants’ failure to adhere to the above laws, Sixth Circuit precedent upholding

these provisions, and their own internal policies warrants the imposition of the requested

injunctive relief. However, Defendants argue that Plaintiffs are not entitled to the relief

requested as neither the regulations nor the implementing statutes on which they rely are

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enforceable under § 1983. 

(i) Whether §§ 1396(a)(8) and (a)(10) Create Enforceable

Rights in Plaintiffs

In both their Response and Motion for Summary Judgment, Defendants contend that §

1983 does not support such an action because the statutes on which the Plaintiffs rely were not

intended to confer a private enforceable right of action. Defendants further contend that in the

absence of a clear and unambiguous right conferred by the proffered statute, the administrative

regulation is insufficient to confer a private right. However, this Court finds Defendants’

reasoning unpersuasive. 

Section 1983 does not create substantive rights; it merely serves as a vehicle to enforce

deprivations of “rights[,] privileges, or immunities secured by the Constitution and laws [of the

United States].” Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 85 L. Ed. 2d 791

(1985); Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002) (“§

1983 merely provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e.,

rights independently ‘secured by the Constitution and laws’ of the United States”). The Supreme

Court has further noted that cases like this one, regarding whether federal programs can be

privately enforced, frequently arise in the context of legislation enacted pursuant to Congress’s

spending authority. See Gonzaga,536 U.S. at 279-282. However, the Supreme Court and the

Sixth Circuit have held on more than one occasion that certain provisions of the Medicaid statute

can be enforced by its intended beneficiaries by actions brought pursuant to § 1983. Wilder v.

Virginia Hosp. Ass’n, 496 U.S. 498, 508-10, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990);

Westside Mothers v. Haveman, 289 F.3d 852, 863 (6th Cir. 2002); Markva v. Haveman, 317 F.3d

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547, 553-554 (6th Cir. 2003); Harris v. Olszewski, 442 F.3d 456, 463 (6th Cir. 2006) (“Our

conclusion, moreover, comports with decisions of the Supreme Court, [Sixth Circuit Court of

Appeals], and other courts of appeals that have recognized privately enforceable rights under §

1983 stemming from similar statutory language in the Medicaid Act.”)

In Harris v. Olszewksi, the Sixth Circuit held that Medicaid’s freedom-of-choice

provision, 42 U.S.C. § 1396a(a)(23)(A), confers a private right that may be enforced under §

1983. 442 F.3d at 459. In so holding, the Sixth Circuit further clarified the analysis required of

this Court when determining if a statute and its enabling regulations confer a privately

enforceable right under § 1983:

In ascertaining ‘whether Congress intended to create a federal right’...the

[Supreme] Court has directed us to look at three factors... ‘First, Congress must

have intended that the provision in question benefit the plaintiff.’ In answering

this initial inquiry, courts look for a statutory right or ‘individual entitlement’ that

is ‘unambiguously conferred,’ by the use of ‘rights-creating language.’ An

‘aggregate focus’ unconcerned ‘with whether the needs of any particular person

have been satisfied’ is insufficient; the statute must be ‘phrased in terms of the

persons benefited,’ and use ‘individually focused terminology.’ ‘Second, the

plaintiff must demonstrate that the right assertedly protected by the statute is not

so vague and amorphous that its enforcement would strain judicial competence.’

‘Third, the statute must unambiguously impose a binding obligation on the States. 

In other words, the provision giving rise to the asserted right must be couched in

mandatory, rather than precatory, terms.’ These three inquiries do not end the

matter, however. ‘Even after’ a plaintiff demonstrates ‘that the federal statute

creates an individually enforceable right in the class of beneficiaries to which he

belongs[,]...there is only a rebuttable presumption that the right is enforceable

under § 1983.’ ‘The defendant may defeat this presumption by demonstrating

that Congress did not intend that remedy for a newly created right’ by pointing to

‘evidence of such congressional intent [that] may be found directly in the statute

creating the right, or inferred from the statute’s creation of a comprehensive

enforcement scheme that is incompatible with individual enforcement under §

1983.’ 

Harris v. Olszewski, 442 F.3d at 461 (internal citations omitted).

This Court need not engage in all of the aforementioned analysis as the Sixth Circuit has

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6

 The analysis employed by the Sixth Circuit relied on the framework set forth in

Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997), which was the

predominate analysis prior the analysis announced by the Supreme Court in Gonzaga. Westside

Mothers I was decided using the Blessing framework. Blessing espoused a similar three part

analysis to determine whether a statute creates a right privately enforceable under § 1983: (1) the

statutory section must show an intent “to benefit the putative plaintiff;” (2) the statute must set a

“binding obligation on a government unit, as opposed to “merely expressing a congressional

preference;” and (3) the interest asserted by a plaintiff must not be so “vague and amorphous”

that enforcement of the statute “would strain judicial competence.” The Sixth Circuit “has

recognized that the Gonzaga decision has altered the landscape of § 1983 claims. The courts of

this circuit have continued to apply the three-factor Blessing test, albeit acknowledging that

Gonzaga clarified application of the first ‘benefit’ factor and underscored that the central focus

of this factor should be on whether the statutory provision contains ‘rights-creating’ language

31

already held, albeit ambiguously, that a private right of action exist under § 1983 for

§§1396a(a)(8) and (a)(10). See Westside Mothers v. Haverman, 289 F.3d 852, 862-63 (6th Cir.

2002) (“Westside Mothers I”); Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006)

(“Westside Mothers II”). The plaintiffs in the Westside Mothers series of cases alleged that

defendants, director of the Michigan Department of Community Health, and the deputy director

of the Michigan Medical Services Administration, refused or failed to implement the Medicaid

Act, its enabling regulations, and its policy requirements. Westside Mothers I, 289 F.3d at 855-

56. However, the district court granted the defendants’ motion to dismiss by holding that

Medicaid was only a contract between a state and the federal government, and that it lacked

jurisdiction over the suit because Michigan was the real defendant, and therefore possessed

sovereign immunity against the suit. Id. at 857. In Westside Mothers I, the Sixth Circuit Court

of Appeals reversed the lower court, although focusing predominately on jurisdictional grounds,

the Court of Appeals also considered “whether there is a private right of action under § 1983" for

the alleged noncompliance with the Medicaid Act. Id. at 862-863. The Sixth Circuit proceeded

to broadly apply a precursor 6

 of the above enumerated test, and ultimately indicated that

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critical to showing the requisite congressional intent to create new rights. Johnson v. City of

Detroit, 446 F.3d 614, 621 (6th Cir. 2006). 

32

“[p]laintiffs have a cause of action under § 1983 for alleged noncompliance with the screening

and treatment provisions of the Medicaid Act”, and remanded the case to the court below. Id. at

863. On remand, the district court granted in part and denied in part the defendants’ second

motion to dismiss pursuant to Rule 12 (b)(6). Westside Mothers II, 454 F.3d at 537. 

Specifically, the district court reconsidered whether specific provisions of the of the

Medicaid Act created enforceable rights under § 1983. Id. In so doing, the district court

examined whether §§ 1396a(a)(8) and (a)(10) create enforceable rights in plaintiffs, in light of

the then recent Gonzaga ruling. Westside Mothers v. Olszewski, 368 F.Supp. 2d 740, 757-63

(E.D. Mich. 2005). With respect to the subject statutory provisions, and relying upon the Sixth

Circuit’s previous analysis utilizing the Blessing factors, and the Supreme Court’s ruling in

Wilder (regarding a similar provision of the Medicaid Act), the district court concluded that the

plaintiffs may sue the defendants under 42 U.S.C. § 1983 to obtain the medical assistance for

which they qualify:

Likewise [comparing statutory language of the Medicaid provision examined in

Wilder], § 1396a(a)(8) states that Michigan’s state plan “must provide that all

individuals wishing to make application for medical assistance under the plan

shall have an opportunity to do so, and that such assistance shall be furnished

with reasonable promptness to all eligible individuals.” Here, the statutory

provision refers to identifiable benefits in the form of “medical assistance” and

the language refers to eligible individuals, providing that the States must provide

an opportunity for “all individuals wishing to make application for medical

assistance.” The text goes on to require State plans to furnish “medical

assistance” “with reasonable promptness” to those who make application and who

are eligible. Similarly, § 1396a(a)(10) requires that Michigan’s plan “provide for

making medical assistance available, including at least the care and services listed

in paragraphs (1) through (5), (17) and (21) of 1396(d)(a)... to all individuals

[who qualify].”...Although this language is not the type of rights conferring

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language that would undoubtedly foreclose debate on this issue, it is sufficient in

light of the Supreme Court’s continued approval of Wilder. This provision of the

Medicaid Act refers to an identifiable benefit of “medical assistance” and

identifies individuals who qualify as the benefited class. While a different

conclusion might result if this court were writing on a clean slate, Gonzaga’s

approval of § 1396a(a)(13) in Wilder results in the conclusion that Plaintiffs may

sue Defendants under 42 U.S.C. § 1983 to obtain the “medical assistance” for

which they qualify.

Id. (internal citation omitted). After holding that an enforceable right exists under § 1983, the

district court examined the scope of the enforceable rights to “medical assistance.” Id. at 762-

770. During which, the district court held that the term “medical assistance” as used in

1396a(a)(8) and (a)(10) “does not require the direct provision of medical services,” but rather

“financial assistance.” Id. at 765. The district court then dismissed the plaintiffs’ claims relative

to these provisions as the defendants had provided financial assistance as required by the statute. 

Id.

The case was again appealed to the Sixth Circuit, where the plaintiffs argued that the

district court’s reconsideration of whether the screening and treatment provisions of the

Medicaid Act create enforceable rights under § 1983 was barred by the law of case doctrine, and

the district court therefore had no power to deviate from the Westside Mothers I holding. 

Westside Mothers II, 454 F.3d at 539. In Westside Mothers II, the Sixth Circuit held that the law

of the case doctrine did not foreclose the lower court from reconsidering whether a right of

action under § 1983 to enforce the subject provisions. Id. In reviewing the district court’s

holding the court of appeals again examined §§1396a(a)(8) and 1396a(a)(10):

The most reasonable interpretation of §1396a(a)(8) is that all eligible individuals

should have the opportunity to apply for medical assistance, i.e. financial

assistance, and that such medical assistance, i.e., financial assistance, shall be

provided to the individual with reasonable promptness. The most reasonable

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interpretation of § 1396a(a)(10) is that medical assistance, i.e., financial

assistance, must be provided for at least the care and services listed in paragraphs

(1) through (5), (17) and (21) of § 1396(d)(a). The regulations that implement

these provisions also indicate that what is required is a prompt determination of

eligibility and prompt payment to eligible individuals to enable them to obtain

necessary medical services. 

Id. at 540 (internal citations omitted). The appellate court then affirmed the district court’s

dismissal of the claim for violations of the subject provisions, but modified the judgment to a

dismissal “without prejudice to the filing of a motion to amend along with a proposed

amendment to the complaint.” Id. at 541.

In light of the Westside Mothers’ analysis of the §§1396a(a)(8) and 1396a(a)(10), this

Court is persuaded that a private cause of action exists under § 1983. These cases, when read in

concert, reject the Defendants’ argument that Plaintiffs only rely on pre-Gonzaga authority, and

appear to demonstrate that at a minimum these provisions support a private right of action under

§ 1983 in regards to “medical assistance, i.e., financial assistance, and that such financial

assistance will be provided to the individual with reasonable promptness” and that “medical

assistance, i.e. financial assistance, must be provided for at least the care and services listed in

paragraphs (1) through (5), (17) and (21) of § 1396d(a).” Westside Mothers II, 454 F.3d at 540.

The Sixth Circuit further enunciated, “that the regulations that implement these provisions also

indicate that what is required is a prompt determination of eligibility and a prompt payment to

eligible individuals to enable them to obtain necessary medical services,” Id. (citing 42 C.F.R.

§§ 435.911, and 435.930); and in a later opinion approvingly cited Sabree v. Richman, 367 F.3d

180, 190, 192 (3d Cir. 2004), as holding that 42 U.S.C. § 1396a(a)(8) - as creating an

enforceable right under § 1983. Harris v. Olszewksi, 442 F.3d at 463; see also Brown v.

Tennessee Dept. of Finance and Admin., 561 F.3d 542, 543-545 (6th Cir. 2009)(wherein the

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Sixth Circuit recently summarized the holding of Westside Mothers II.). Having concluded that

§§1396a(a)(8) and 1396a(a)(10) of the Medicaid Act create rights privately enforceable under §

1983, the Court now examines whether the supplementing regulations are equally enforceable.

(ii) Duty imposed by 42 C.F.R. §§ 435.930(b) and .916(c)

As to Count I, Plaintiffs maintain that 42 C.F.R. § 435.930(b) is also individually

enforceable under § 1983, as its “effectuates the express mandate of the controlling statute and

provides the specifics for implementing obligations that are imposed generally by the controlling

statute.” [Resp. to Mot. for Summ. J., p. 10]. Plaintiffs further contend that the Sixth Circuit has

interpreted this regulation as requiring state agencies to continue to provide Medicaid to an

individual whose eligibility under one Medicaid category has ended, while the state determines

whether the individual is eligible under the other categories. Finally, Plaintiffs submit that the

Defendants’ own policies support such an outcome based on specific sections of the PEM. In

response, Defendants maintain that the regulations are unable to support a private right of action

under § 1983, in the absence of a clear and unambiguous mandate.

“Language in a regulation may invoke a private right of action that Congress through

statutory text created, but it may not create a right that Congress has not.” Alexander v.

Sandoval, 532 U.S. 275, 271, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001) (“Agencies may play

the sorcerer’s apprentice but not the sorcerer himself.”). It is undisputed that a private plaintiff

“cannot enforce a regulation through a private cause of action generally available under the

controlling statute if the regulation imposes an obligation or prohibition that is not imposed

generally by the controlling statute.” Ability Ctr. v. City of Sandusky, 385 F.3d 901, 906 (6th

Cir. 2004); see e.g. Caswell v. City of Detroit Hous. Comm’n, 418 F.3d 615, 620 (6th Cir. 2005)

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(“Because neither we nor Caswell can point to a specific statutory provision in the Housing Act

that confers a right relevant to DHC’s alleged violation of 24 C.F.R.§ 982.311(b), Caswell

cannot pursue his claim under § 1983.”). However, “[o]n the other hand, if the regulation simply

effectuates the express mandates of the controlling statute, then the regulation may be enforced

via the private cause of action available under the statute.” Ability Ctr., 385 F.3d at 906 ; Harris,

442 F.3d at 465 (“Because ‘[a] Congress that intends the statute to be enforced through a private

cause of action intends the authoritative interpretation of the statute to be so enforced as well.”).

Having concluded that §§1396a(a)(8) and 1396a(a)(10) impose such a private right of

action, this Court must now determine whether the supplementing regulations “effectuates the

express mandates of the controlling statute.” This Court finds that 42 C.F.R. § 435.930(b) and

.916(c) effectuate and supplement the mandate of 42 U.S.C. 1936a(a)(8) and (a)(10), and are

therefore enforceable through the private right of action available under § 1983. The subject

regulation requires that a state medicaid agency “must ... [c]ontinue to furnish Medicaid

regularly to all eligible individuals until they are found to be ineligible,” 42 C.F.R. §

435.930(b), and derives its enforcement authority directly from the controlling statute. This

regulation merely supplements and defines the broad mandate of §§ 1396a(a)(8) and (a)(10) –

i.e. to furnish medical assistance with reasonable promptness – by further defining the duration

and scope of the promised medical assistance. See Doe, 1-13 v. Chiles, 136 F.3d 709, 717 (11th

Cir. 1998) (finding that § 435.930(b) “further define[s] the contours of the statutory right to

reasonably prompt provision of assistance.”); Westside Mothers II, 454 F.3d at 540 (“The

regulations [including § 435.930(b)] that implement these provisions [§§1396a(a)(8) and (a)(10)]

also indicate that what is required is a prompt determination of eligibility and a prompt payment

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to eligible individuals to enable them to obtain the necessary medical services.”). The subject

regulations – by requiring continued aid and pretermination reviews – ensure that eligible

individuals are not denied prompt Medical assistance to which they are entitled. In view of the

foregoing, the Court finds Defendants’ opposition to the enforcement of § 435.930(b) and

.916(c) unpersuasive. 

(iii) Merits

Having resolved Defendants’ threshold challenges to the preliminary injunction, the

Court now concludes that Plaintiffs have demonstrated a substantial likelihood of success on the

merits of Count I. Defendants’ pattern and practice of terminating Plaintiffs’ Medicaid benefits

without first determining whether they are eligible for Medicaid benefits under disability-based

categories, violates Plaintiffs’ rights under 42 U.S.C. § 1396a(a)(8) and (a)(10), and the attendant

regulations. The federal Medicaid statutes require state Medicaid agencies to “provide that all

individuals wishing to make application for medical assistance under the [State Medicaid] plan

shall have opportunity to do so, and that such assistance shall be furnished with reasonable

promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). As noted above, the Plaintiffs’

enforceable rights under this statute incorporate the regulations that it implements, and therefore,

the agency must also “[c]ontinue to furnish Medicaid regularly to all eligible individuals until

they are found to be ineligible.” 42 C.F.R. § 435.930(b). Indeed, this supplementing regulation

most certainly condemns Defendants’ practice of terminating Plaintiffs’ Medicaid because they

no longer qualify under FIP-related eligibility, without first determining if these individuals meet

any of the other categories of Medicaid eligibility. As such, the Defendants’ appropriate course

of conduct after determining that Plaintiffs were no longer eligible for FIP-related categories was

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to conduct an automatic review of other Medicaid categories, without the re-application for

Medicaid assistance. 

Further buttressing the above conclusion, the Court relies on the reasoning of Crippen v.

Kheder, where (after being confronted with facts similar to those at bar) the Sixth Circuit held

that persons who receive benefits under the Medicaid Act are entitled to the continued receipt of

Medicaid benefits pending a final determination of ineligibility. 741 F.2d 102, 106-07 (6th Cir.

1984). In that case, the plaintiff’s eligibility for SSI benefits was terminated when the defendants

Michigan Medicaid agencies revoked the Adult Foster Care license for the home in which she

resided. Id. at 104. The defendant agency notified the plaintiff that her Medicaid benefits would

be terminated because her SSI benefits had been terminated, and that she could seek a hearing,

whereupon her benefits would continue until the hearing was held. Id. In lieu of requesting a

hearing, plaintiff reapplied for Medicaid and filed a class action suit “seeking declaratory and

injunctive relief against the Department’s policy of automatically terminating individuals from

medicaid solely upon receipt of information that SSI benefits have been terminated without

making prior determination of the individual’s eligibility as a medically needy person.” Id. The

plaintiffs’ class, similar to those in the present matter, asserted that defendants’ policy ran afoul

of its responsibility to “continue to furnish medicaid regularly to all eligible individuals until

they are found to be ineligible...” Id. (citing 42 C.F.R. § 435.930(b)).

After refuting the state agency’s arguments, many of which are similar to those made in

the present action, the Crippen Court held:

Where the only basis for a recipient’s eligibility assistance has been eliminated it

logically follows that eligibility must cease. The regulations at issue here, however, provide

alternative bases for medicaid eligibility... The most that was determined by the Department was

that one of those bases for medicaid eligibility, i.e., the receipt of SSI benefits, had been

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eliminated. Thus [plaintiff] was no longer eligible for medicaid as a categorically needy person. 

There remained the possibility, indeed, in this case the fact, that she was still eligible as a

medically needy person. As noted earlier, the Department made no effort to determine

[plaintiff’s] eligibility for medicaid as a medically needy person before terminating her from the

program. Thus the Department could not have found [plaintiff] to be ineligible for medicaid

prior to terminating her from the program as it was required to do by 42 C.F.R. § 435.930(b).

Id. at 106. 

Likewise, especially in light of the similarity of circumstances, the Court is bound to

conclude that Plaintiffs’ in the present case are entitled to continuing Medicaid benefits while the

Defendants review the Plaintiffs’ eligibility under the disability-based or SSI-related Medicaid

categories. The factual scenario that confronted the Crippen Court is the mirror image of that

facing the undersigned. In that matter, the Sixth Circuit held – based primarily on the identical

regulation – that plaintiffs’ class was entitled to continuing Medicaid benefits once their SSIrelated benefits were terminated, until the agency determined whether they were entitled to

Medicaid benefits on other grounds. In this action, the Plaintiffs are seeking continued Medicaid

benefits once their FIP-related eligibility has ended, until the agency has determined that they are

not entitled to Medicaid benefits under SSI or disability related categories. Toward this end, the

Court similarly holds that the Defendants’ termination of the Plaintiffs’ FIP-related Medicaid

should trigger an automatic review of Plaintiffs’ eligibility under other Medicaid categories. Id.

at 107. (“upon receipt of notice that an individual has been terminated from the SSI program, the

Department must promptly determine ex parte the individual’s eligibility for medicaid

independent of his eligibility for SSI benefits. While this determination is being made, the state

must continue to furnish benefits to such individuals.”); See also Massachusetts Assoc. of Older

Americans, 700 F.2d at 753 (“these regulations require the state agency, upon receipt of

notification of an individual’s termination from SSI, to reconsider the recipient’s eligibility for

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Medicaid benefits. Pending this ex parte determination the state must continue to furnish such

individuals with Medicaid benefits, and if it determines that an individual is ineligible, it must

give notice and an opportunity for a hearing before termination.”). 

Contrary to Defendants’ assertions, the Court finds no persuasive reason to distinguish

the holding of Crippen. As resolved above, Defendants’ contention that the Crippen Court’s

holding is wholly dependent on the HHS-issued regulations is without merit. Although the

Crippen Court did not specifically connect its holding to the statutory authority of §§1396a(a)(8)

and 1396a(a)(10), other Sixth Circuit precedent has done so. See, e.g. Westside Mothers II, 454

F.3d at 540. This same authority rejects Defendants’ other argument that certain Crippen dicta

should bind this Court to conclude that no such statutory authority exists. See Crippen, 741 F.2d

at 104 (“As the parties concede, there is no specific regulation or section of the statute which

covers this particular dispute.”). Defendants’ arguments extend the dicta beyond its reasonable

bounds. This prefatory statement does not bind the Court to conclude that § 435.930(b) should

not be enforced especially when this Court’s previous analysis demonstrates otherwise. Rather,

this statement, when placed in the context of the overall opinion, simply illustrates that the

appellate court was being called upon to interpret the statutory and regulatory law in the context

of a particular fact situation that was not explicitly addressed by the legislature or regulatory

agency. If this Court were to read this sentence as Defendants urge, it would undermine the

ultimate conclusion of the Crippen Court, which held – based partially on § 435.930(b) – that

“the Department’s policy of automatically terminating the benefits of medicaid recipients solely

because their SSI benefits have been terminated without determining whether they qualify as

medically needy individuals violates the regulations promulgated under the Social Security Act.” 

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Crippen, 741 F.2d at 106-07 (emphasis added). 

By no means should this ruling be considered unusual or unexpected as Defendants’ own

internal policies and procedures bear witness to the proper course of conduct. Specifically, the

Program Eligibility Manual instructs caseworkers that “[m]ost terminations of FIP or SSI

benefits must include an evaluation of MA eligibility...” [PEM 105, p. 4]. In this same vein, the

PEM instructs caseworkers to “[c]onsider eligibility under all other MA-only categories before

terminating benefits under a specific category.” [Id.] The testimony of the Named Plaintiffs in

this action demonstrate that the Defendants have failed to comply with not only their own

internal procedures, but more importantly 42 U.S.C. 1936a(a)(8) and (a)(10) and its

corresponding regulations. Contrary to Defendants’ arguments, the requirement of a pretermination review is not only limited to those whose SSI or disability-related eligibility has

terminated, but this duty should be afforded “to individuals who qualified for Medicaid under

any eligibility category.” Massachusetts Association of Older Americans, 700 F.2d at 753

(emphasis added); see also Stenson v. Blum, 476 F. Supp. 1331, 1339 (S.D.N.Y. 1979) aff’d

without opinion, 628 F.2d 1345 (2d Cir.), cert denied, 449 U.S. 885, 101 S. Ct. 239, 66 L. Ed. 2d

111 (1980) (“Many of the Federal regulations relating to whether Medicaid payments should

continue pending redetermination of eligibility are applicable to a recipient who previously has

been eligible for Medicaid under any of the categories...”). In view of the foregoing analysis,

the Court concludes that Plaintiffs have demonstrated a substantial likelihood of success on the

merits as to Count I.

(b) Count II

In Count II, Plaintiffs claim that Defendants must provide them with a meaningful, pre2:08-cv-14040-DPH-MKM Doc # 26 Filed 05/14/09 Pg 41 of 55 Pg ID 778
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termination notice and opportunity to be heard, after the mandated review of eligibility is

complete. Consistent with this request, Plaintiffs submit that after the Defendants have

determined that an individual is ineligible for all categories of Medicaid, then a pre-termination

notice should be sent to the recipient. This notice, Plaintiffs claim, should detail the reasons for

the determination that he or she is no longer eligible for Medicaid, and include a hearing date if

one was requested. Importantly, in addition to providing the legal and factual reasons why the

recipient is no longer eligible for Medicaid based on the particular category for which he or she

qualified in the past, recipients would also be provided an opportunity to be heard about their

eligibility for disability-based Medicaid categories. In an effort to enforce these rights under 42

U.S.C. § 1983, Plaintiffs rely on the Due Process Clause of the Fourteenth Amendment. 

Additionally, Plaintiffs find support under 42 U.S.C. § 1396a(a)(3) and its accompanying

regulations, namely, 42 C.F.R. § 431.206 - .211 (setting forth right to a hearing, and content of

notice requirements), .230 (maintaining service while awaiting hearing), and 435.919 (requiring

timely and adequate notice of proposed terminations, discontinuance, or suspensions of

Medicaid eligibility). In response to Plaintiffs’ arguments, Defendants submit that 1396a(a)(3)

unambiguously applies to individuals who have both applied for Medicaid and been denied

Medicaid, or applied and are still waiting for a decision. Because Plaintiffs have not applied for

“disability based benefits,” Defendants aver that this provision is inapplicable to them. Further,

Defendants state that “unless an individual applies and/or has an application denied for

disability-related Medicaid, there is no statutory entitlement to an opportunity to be heard on the

matter.” [Def.’s Resp. to Prel. Inj., p. 5-6]. In their Motion to Dismiss, Defendants further argue

that the framework created by the regulations, and currently being carried out by Defendants,

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provides greater procedural safeguards than are demanded by due process. Finally, Defendants

provide that the type of notice which Plaintiffs are requesting does not fall within the scope of

the enforceable rights incorporated under 1396a(a)(3).

Prior to dealing with Defendants’ contentions, the Court finds it useful to detail the

statutory and regulatory authority that form the basis of the Plaintiffs’ requested relief. 42

U.S.C. § 1396a(a)(3) is the statutory foothold on which Plaintiff’s regulatory support hinges:

A State plan for medical assistance must –

provide for granting an opportunity for a fair hearing before the State agency to

any individual whose claim for medical assistance under the plan is denied or is

not acted upon with reasonable promptness...

42 U.S.C. § 1393a(a)(3).

The regulations, in pertinent part, provide:

A notice required under § 431.206(c)(2), (c)(3), or (c)(4) of this subpart must

contain –

(a) A statement of what action the State ...intends to take;

(b) The reasons for the intended action;

(c) The specific regulations that support, or the change in Federal or State law that

requires, the action;

(d) An explanation of –

(1) The individual’s right to request an evidentiary hearing if one is

available, or a State agency hearing; or

(2) In cases of an action based on a change in law, the circumstances

under which a hearing will be granted, and

(e) An explanation of the circumstances under which Medicaid is continued if a

hearing is requested.

42 C.F.R. § 431.210

....

The State or local agency must mail notice at least 10 days before the date of

action ....

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42 C.F.R. § 431.211.

....

(a) If the agency mails the 10-day or 5-day notice as required under § 431.211 or

§ 431.214 of this subpart, and the recipient requests a hearing before the date of

the action, the agency may not terminate or reduce services until a decision is

rendered after the hearing unless –

(1) It is determined at the hearing that the sole issue is one of Federal or

State law or policy; and

(2) The agency promptly informs the recipient in writing that services are

to be terminated or reduced pending the hearing decision.

(b) If the agency’s action is sustained by the hearing decision, the agency may

institute recovery procedures against the applicant or recipient to recoup the cost

of any services furnished the recipient, to the extent they were furnished solely by

reason of this section.

42 C.F.R.§ 431.230.

....

(a) The agency must give recipients timely and adequate notice of proposed

action to terminate discontinue, or suspend, their eligibility or to reduce or

discontinue services they may receive under Medicaid.

(b) The notice must meet the requirements of Subpart E of Part 431 of this

subchapter.

42 C.F.R. § 435.919.

The dispute arising from Count II requires the Court to resolve whether the procedures

employed by the Defendants are sufficient to satisfy the constitutional, statutory, and regulatory 

requirements of due process, specifically, sufficient notice, and the right to a pre-termination

hearing. 

(i) Statutory and Regulatory Requirements

Defendants’ primary challenge to the proposed injunctive relief is that neither §

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45

1396a(a)(3) or its attendant regulations support the relief that Plaintiffs seek. In arriving at this

conclusion, Defendants argue that the statutory and regulatory language narrows the scope of the

enforceable right to individuals who have both applied for Medicaid and been denied Medicaid. 

Because Plaintiffs (individuals receiving Medicaid benefits based on FIP) neither applied for, or

were denied, disability-related Medicaid, Defendants claim that these provisions do not confer

“a right to a pre-termination opportunity to be heard on a matter that has neither been the subject

of a Medicaid application nor a denial by Defendants.” [Defs.’ Mot. for Summ. J., p. 19]. In

regards to Count II, the Court concludes that Plaintiffs have demonstrated a substantial

likelihood of success on the merits.

42 U.S.C. § 1396a(a)(3) requires that state Medicaid plans must “provide for granting an

opportunity for a fair hearing before the State agency to any individual whose claim for medical

assistance under the plan is denied or is not acted upon with reasonable promptness.” As noted

above, the statute’s attendant regulations require the state agency to notify applicants of the right

to obtain a hearing and the method of obtaining one when the applicant first applies to Medicaid,

and when any action is taken which affects the applicant’s claim. 42 C.F.R. § 431.206. The

regulations also govern the specific contents of the notice, which must include: (1) a statement of

the actions being taken, (2) reasons for the intended actions, (3) specific regulations that support

or require the intended action, and (4) an explanation of the right to a hearing, and under what

circumstances Medicaid benefits will continue during the pendency of the requested hearing. 42

C.F.R. § 431.210. This notice must, unless an exception applies, be mailed “at least 10 days

before the date of action.” § 431.211. It is uncontested that Plaintiffs, as Medicaid beneficiaries,

are entitled to enforce their § 1396a(a)(3) right to a “fair hearing” under § 1983. Gean v.

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 Defendants correctly point out that § 1396a(a)(3) is not among the list of sections of the

Act implemented by 42 C.F.R. § 435.919. See 42 C.F.R. § 435.3. However, the Court notes that

§ 435.919(b) does expressly refer back to Subpart E of Part 431 (regarding the notice

requirements), which does implement the sections of the Act dealing with an opportunity for a

fear hearing. See 42 C.F.R. § 431.200. 

46

Hattaway, 330 F.3d 758, 772-773. 

Plaintiffs allege, and this Court agrees for the purposes of the preliminary injunction

motion, that the notice Plaintiffs received was insufficient because it only detailed the reasons

why they were no longer eligible for FIP-related Medicaid, which was not the “sole” basis for

terminating their Medicaid. By way of example, Named Plaintiff Chande Crawley demonstrates

such insufficient notice. On July 18, 2009, DHS notified Crawley that, effective 7-30-2008, her

Medicaid Coverage will be cancelled; under the heading, “the reason for this action,” the letter

simply states “child is age 18 or 19 and has completed highschool.” [7-18-2008 Notice of Case

Action, Prel. Inj., Ex. A]. The reason for the termination of Medicaid benefits was restricted to

the termination of FIP-related benefits, and as such, Plaintiffs were unable to dispute the factual

reason given by the Defendants. In so doing, the Defendants denied Crawley, and similar

situated individuals, the right to a “fair hearing” under § 1396a(a)(3). More specifically, this

insufficient notice renders § 435.919's7 requirement of “timely and adequate notice of proposed

action to terminate, discontinue, or suspend eligibility” otiose. Such notice can hardly qualify as

“adequate” because it does not include a determination of eligibility on all relevant grounds,

thereby undermining any opportunity for a fair hearing. A truly fair hearing would allow

Plaintiffs an opportunity to challenge the termination by proving that they are eligible for

Medicaid based on disability. Stenson v. Blum, 476 F. Supp. at 1339. 

The Court also finds that Defendants’ distinction based upon the failure to apply for

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disability-based benefits unavailing. The Court sees no reason to distinguish between termination

of disability-based benefits on an initial application, and the termination of FIP-based assistance.

Both events implicate the denial of Medicaid benefits, and as such should necessitate notice and

hearing rights under 42 U.S.C. § 1396a(a)(3). The Court is cognizant that the determination

based on disability, under the usual circumstances, will require additional medical verification. 

However, the Defendants’ obligation to conduct a pretermination review is not limited by the

type of application that a recipient initially filed. See Crippen, 741 F.2d at 105-06;

Massachusetts Association of Older Americans, 700 F.2d at 752. In any event, it appears from

the record before this Court that all applicants fill out the same initial DHS Assistance

Application 1171 form; PEM, p.2, on which an applicant is only required to check a box labeled

“medical assistance” or “medical” and is not required to designate Medicaid eligibility

categories. Fatal to Defendants’ argument, there is no separate application for “disability-based

Medicaid.” In this same vein, Defendants’ internal procedures appropriately require the trained

caseworkers, and not potential Medicaid recipients, to determine eligibility:

Choice of Category

Persons may qualify under more than one MA category. Federal law gives them

the right to the most beneficial category. The most beneficial category is the one

that results in eligibility or the least amount of excess income...

However, clients are not expected to know such things as:

* Ine[]ligibility for a FIP grant does not mean MA coverage must end...

* The most beneficial category may change when a client’s circumstances 

 change.

Therefore, you must consider all the MA category options in order for the client’s

right of choice to be meaningful.

 [PEM 105, p.2., Compl., Ex. I]. Defendants’ own internal policies usually place on the

caseworkers the burden of requesting the information or documents that are needed to determine

whether a particular eligibility criterion has been met. PAM 115, p.12; PAM 130, p.1. As such,

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Plaintiffs have demonstrated a substantial likelihood of success on the merits as it relates to

Count II.

(ii) Constitutional Requirements

In view of the foregoing analysis, the Court quickly dispenses with the parties’ due

process contentions having resolved the matter on statutory grounds. Boatman v. Hammons, 164

F.3d 286, 289 (6th Cir. 1998) (“Plaintiffs also assert that Medicaid recipients are entitled to

written notice under the Due Process Clause of the Fourteenth Amendment ... Since we have

resolved this issue on plaintiffs’ statutory claim, we need not address the constitutional

question.”). 

(2) Irreparable Harm to the Plaintiff

The plight of Chande Crawley, Penny Carson, Linda Birmingham and other similarly

situated individuals unequivocally demonstrate the irreparable harm that will ensue if a

preliminary injunction is not issued in this matter. “By hypothesis, a welfare recipient is

destitute, without funds or assets. [] Suffice it to say that to cut off a welfare recipient in the face

of []‘brutal need’ without a prior hearing of some sort is unconscionable, unless overwhelming

considerations justify it.” Goldberg v. Kelly, 397 U.S. 254, 261, 90 S. Ct. 1011, 25 L. Ed. 2d 287

(1970). Echoing the Supreme Court, this Court does not question the sufficiency of the hearings

procedure on constitutional grounds, but stresses the vital necessity that Medicaid programs

provide, and that a “controversy over eligibility may deprive an eligible recipient of the very

means by which to live while he waits.” Id. at 264. Toward this end, “[f]or qualified recipients,

welfare provides the means to obtain essential food, clothing, housing, and medical care.” Id.

(emphasis added).

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The Named Plaintiffs in this action will undoubtedly – if not already – suffer irreparable

harm because they are receiving or will receive medical benefits that are far below those

provided under Medicaid, to which they are entitled. In the case of some Plaintiffs, who have

serious medical disabilities, a lapse in Medicaid benefits could result in permanent injury or even

death. As most clearly demonstrated in the lives of the Named Plaintiffs, the unwarranted lapse

in Medicaid coverage has lead to severe restrictions in medically necessary healthcare which

they otherwise are unable to afford. See Markva v. Haveman, 168 F. Supp. 2d 695, 718-719

(E.D. Mich. 2001), aff’d 317 F.3d 547 (6th Cir. 2003) (citing cases where “Other courts have

held that delay or denial of Medicaid benefits can amount to irreparable harm.”); Massachusetts

Association of Older Americans, 700 F.2d at 753 (“Plaintiffs presented affidavits of several class

members who, since termination, have been financially unable to obtain necessary medical

treatment. Termination of benefits that causes individuals to forgo such necessary medical care

is clearly irreparable injury.”). 

While the Defendants concede that a denial of benefits may rise to the level of irreparable

harm, they contest that the instant facts do not demonstrate such an injury. In their view,

Plaintiffs’ harm is self-imposed because Plaintiffs did not take advantage of the appeal process

which would have extended their benefits for the duration of the appeal. Similarly, Defendants

aver that the instant claims are redressable pursuant to their policy of retroactive coverage from

the date when the disabled individual applied for disability-based benefits. However, the

previous portions of this order refute these contentions. To begin, Plaintiffs cannot be expected

to take full advantage of an appeals process where the commencing notice only covers a single

basis for Medicaid ineligibility. As such, the Plaintiffs were unaware that they could even bring

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evidence demonstrating that they qualified for Medicaid under the disability-based benefits. Nor

is the Court persuaded by Defendants’ reliance on a retroactive coverage policy. In effect, what

Defendant argues, and the record substantiates, is a system where once an individual’s FIP-based

benefits end, he or she is encouraged to reapply (in most cases using an identical form) with an

emphasis on their disability. Yet this system subverts the purpose of a pre-termination review,

which is to prevent unwarranted lapses in Medicaid coverage. 

The heart of the irreparable injury analysis requires “the party seeking injunctive relief ...

[to] show that there is no other adequate remedy at law.” U.S. v. Miami University, 294 F.3d

797, 816 (6th Cir. 2002). Here, it is undeniable that the unpaid bills, loss of needed medical

assistance, and ultimately poor health suffered by Plaintiffs, cannot be adequately addressed by

the promise of future Medicaid coverage. In this same vein, the state’s Eleventh Amendment

Immunity bars any award of monetary damages against the Defendants. Markva, 168 F. Supp.

2d 719 (“There is no adequate remedy at law for individuals suing a state in federal court

because the Eleventh Amendment bars the award of damages.”). 

(3) Threat of Harm to Plaintiffs Outweighs Threat of Harm to the

Defendants/Third Parties

This third consideration also weighs in favor of the Plaintiffs. Generally speaking, the

relief sought requires Defendants to provide Medicaid to Plaintiffs while Defendants determine

eligibility for SSI-related categories. This Court would be remiss not to acknowledge that the

requested relief would have some impact on the state budget; however, principles of equity and

due process are not without their cost. And in this instance, the balance of the harms weighs in

favor of issuing a preliminary injunction. 

The challenge to the relief requested rest primarily on administrative delays and costs

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 These projected calculations appear to rest on the assumption that all individuals

terminated from FIP-related categories (approximately 4,000), will “allege disability to continue

their Medicaid coverages pending a determination on the disability claim.” [Affidavit of Neil

Oppenheimer, Defs.’ Resp. to Prel. Inj., Ex. 3].

51

that Defendants forecast as a result of the requested injunctive relief. Particularly, Defendants

predict that the injunctive relief will require extended/unwarranted coverage of individuals who

are not in fact disabled, while their eligibility is being determined. Similarly, Defendants posit

that many applicants will disingenuously claim disability and needlessly prolong the

determination period to extend their benefits by not providing verifying medical data. This in

turn will have the effect of increasing delays and depriving resources from applicants who in

reality are qualify for SSI-related Medicaid benefits. All of which, Defendants estimate, will

cost an additional $1.4 to $1.7 million each month.8 

While the problem of additional expense must be kept in mind, it does not justify denying

Plaintiffs a right to meaningful notice and the continued receipt of Medicaid benefits to which

they are entitled pending a final determination of disability-based eligibility. Massachusetts

Association of Older Americans, 700 F.2d at 754 (“Defendant’s claimed injury from the loss of

public funds to ineligible individuals is, in reality, no injury at all, just a remote possibility of

injury. Thus the harm to plaintiffs far outweighs that of defendant and preliminary injunction

must issue.”). Many of the purported harms that Defendants assert are well-within their power

to remedy. To start, Defendants exert substantial control over the length of time benefits might

be continued pending a review of disability eligibility. The Defendants’ existing policy and

concession of the Plaintiffs, both provide that Medicaid can be terminated if an individual has

not cooperated in responding to a request for additional information within a reasonable time. 

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DHS PAM 130, p. 4 (Allowing the applicant 10 calender days to provide verifying information,

if neither the caseworker or applicant does so – with the possibility of at least one to three

extensions – the benefits may be terminated or denied.). Also mitigating Defendants’ concern

are the federal regulations which require the Medicaid agency to conduct a review of eligibility

when a change in a recipient’s circumstances is anticipated. 42 C.F.R. § 435.916(c). 

Consequently, Defendants should begin to review the Medicaid recipient’s file to determine their

eligibility, and if needed request additional verification, in advance of the date that the

recipient’s eligibility under their current Medicaid category is expected to end. Further, many of

the Defendants’ financial projections rest upon an apparent inflation of the relief requested. The

requested relief is not applicable to all individuals terminated from FIP-related categories

(approximately 4,000), but rather only those who have indicated or demonstrated a claim of

disability (approximately 200). Accordingly, the Court finds that the threatened harm to the

Plaintiffs outweighs the threatened harm that the injunction may inflict upon the Defendants or

third parties. 

(4) Public Interest

On this final consideration, the Court finds that the public interest is served by the issuing

of a preliminary injunction. It is evident that the public interest would be served if individuals

who were rightfully entitled to Medicaid benefits actually received those benefits without

unwarranted interruption or unnecessary delay. It logically follows – based on this above

analysis – that the public interest is best served when the state agency endowed with the duty of

dispensing Medicaid benefits to deserving individuals is in compliance with the federal Medicaid

statutes and their attendant regulations. 

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Weighing the factors set forth above, the Court concludes that Plaintiffs are entitled to a

preliminary injunction. 

V. CONCLUSION 

Accordingly,

IT IS ORDERED that Plaintiffs’ Motion to Certify a Class [Docket No. 5, filed Sept.

19, 2008] is GRANTED

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss and/or Summary

Judgment [Docket No. 15, filed Oct. 16, 2008] is DENIED.

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction

[Docket No. 6, filed Sept. 19, 2008] is GRANTED.

IT IS DECLARED:

(A) Defendants are preliminarily enjoined from violating Plaintiffs’ and similarly situated

individuals rights under 42 U.S.C. § 1396a(a)(8) and (a)(10)(A) as interpreted and implemented

by 42 C.F.R. § 435.930(b), and federal Medicaid law, 42 U.S.C. § 1396a(a)(3), as implemented

by 42 C.F.R.§ 431.206 - .211;

(B) Defendants are preliminarily enjoined from failing to continue Medicaid to each of

the Named Plaintiffs and similarly situated class members, unless and until they have reviewed

and ruled out the Plaintiff’s eligibility for Medicaid under all eligibility categories, including

disability related categories, and specifically require that before terminating Medicaid eligibility

the Defendants must:

(1) Conduct an individual ex parte review of each Named Plaintiff’s, and

similarly situated class member’s DHS case file and information available

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electronically from the Social Security Administration to determine whether there

is information indicating that they have a medical condition or disability that

prevents them from working – including information that they are applying for or

pursuing SSI or Social Security disability benefits, 

(2) If their continued eligibility is not verified by the ex parte review, identify and

request additional information that may be needed to evaluate eligibility under

other Medicaid categories, including disability-based categories, and then, 

(3) Take action to initiate termination of the individual’s Medicaid only if the 

individual has not cooperated in responding to Defendants’ request to the

individual for additional information within a reasonable time, or if the

information available to Defendants following their efforts to obtain all necessary

information establishes that the Named Plaintiff or class member is not eligible

for Medicaid under any of the Michigan Medicaid eligibility categories, including

disability based categories.

(C) Defendants are preliminarily enjoined from initiating termination of Medicaid to the

Named Plaintiffs and class members without first providing them with a meaningful pretermination notice and opportunity to be heard regarding the proposed termination of their

Medicaid, including written notice that:

(1) details the factual reasons why their eligibility ended under the category for

which they previously had been eligible and the policy items under which the

eligibility criteria they did not meet are spelled out;

(2) details the factual reasons why they are not eligible under other relevant

eligibility categories, including disability-based categories, and the policy items

under which the eligibility criteria they failed to meet are spelled out; 

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(3) an explanation of their right to a pre-termination hearing if DHS receives their

original hearing request before the date that their Medicaid will in fact end. 

IT IS FURTHER ORDERED that Proposed Intervenor Brittany Lockert’s Motion to

Intervene as Plaintiff and Class Representative [Docket No. 24, filed May 7, 2009] is

GRANTED. 

IT IS FURTHER ORDERED that Proposed Intervenor’s Motion for Ex Parte

Temporary Restraining Order and Preliminary Injunction [Docket No. 25, filed May 7, 2009] is

MOOT.

s/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: May 14, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

on May 14, 2009, by electronic and/or ordinary mail.

s/William F. Lewis 

Case Manager

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