Dajour B. v the City of New York

United States District Court, S.D. New YorkOct 3, 2001
No. 00 Civ. 2044 (JGK) (S.D.N.Y. Oct. 3, 2001)

Cases citing this case

6 Citing Cases

No. 00 Civ. 2044 (JGK).

October 3. 2001.


OPINION AND ORDER


The plaintiffs, Dajour B., by his parent and next friend L.S., Darren O., by his parent and next friend, A.R., Christina F., by her parent and next friend S.F., Tiffany C., by her parent and next friend Y.C., Chris G., by his parent and next friend C.F., and Devante H., by his parent and next friend S.H., bring this action for declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983, against the defendants, the City of New York (the "City") and Antonia C. Novello, as Commissioner of the State of New York Department of Health ("DOH"). The plaintiffs allege that they are homeless children with asthma who either reside or have applied to reside in New York City's homeless shelter program, and that the defendants have, through certain policies and practices, violated their rights under 42 U.S.C. § 1983 and Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (the "Medicaid Act"), by failing to provide them with adequate diagnosis, screening and treatment services for asthma and information about these services. This claim has survived a motion to dismiss and a motion for summary judgment, see Dajour B. v. City of New York, No. 00 Civ. 2044, 2001 WL 830674 (S.D.N.Y. July 23, 2001), and the plaintiffs now seek to certify a class pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.

The plaintiffs originally named a number of New York City agencies and commissioners as defendants in their complaint, but later agreed to dismiss those claims and proceed only against the City. See Dajour B. v. City of New York, No. 00 Civ. 2044, 2001 WL 830674, at *1 (S.D.N.Y. July 23, 2001).

The plaintiffs originally raised a number of claims directly under the Medicaid Act as well. After the parties had fully briefed motions to dismiss the complaint, the plaintiffs agreed to withdraw these claims and rely solely on the fourth count in the complaint. This count is brought pursuant to 42 U.S.C. § 1983 and incorporates the allegations made in the withdrawn claims concerning violations of the Medicaid Act.

The Court did, however, limit the precise provisions of the Medicaid Act and its implementing regulations under which these claims could be raised. See id. at *11-12. The provisions still at issue, which generate enforceable rights, are identified in more detail below.

I

The facts and allegations in this case, along with the relevant statutory framework, have been set forth in some detail this Court's prior decision Dajour B. v. City of New York, 2001 WL 830674. Familiarity with that decision is presumed, and only the background necessary to resolve class certification is repeated here.

The named plaintiffs allege that they are homeless children ranging in age from sixteen months to fourteen years who suffer from asthma or symptoms of asthma, a chronic inflammatory disease of the pulmonary system. (See Compl. ¶¶ 57, 68, 80, 90, 100, 109). All plaintiffs claim to reside or to have applied to reside in New York City's homeless shelter system, and all claim that they have been deprived of medical services that they were eligible for under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (the "Medicaid Act").

All references to "Compl." are to the plaintiffs' First Amended Complaint.

The Medicaid Act establishes a joint federal and state program to provide medical assistance to needy individuals in participating states.See 42 U.S.C. § 1396; Cantanzano v. Wing, 103 F.3d 223, 224 (2d Cir. 1996). Participating states receive federal subsidies, but must provide and administer a range of medical services to individuals eligible for Medicaid in accordance with an approved plan for service. See 42 U.S.C. § 1396 et seq. Among the mandatory medical services required by the Medicaid Act are "early and periodic screening, diagnosis and treatment" services, or "EPSDT," for eligible individuals under the age of twenty-one. See 42 U.S.C. § 1396a(a)(43), 1396d(a)(4)(B)

Section 1396d(r) defines the minimal level of EPSDT services that must be provided to these individuals. These services include "screening services", which, at minimum, extend to comprehensive health and developmental histories, comprehensive unclothed physical exams, appropriate immunizations, laboratory tests and health education. 42 U.S.C. § 1396d(r)(1)(A)(B). Although § 1396d(r) does not explicitly mention services for asthma, it does state that screening services must be provided "at intervals which meet reasonable standards of medical . . . practice," and "at such other intervals, indicated as medically necessary, to determine the existence off certain physical or mental illnesses or conditions." 42 U.S.C. § 1396d(r)(1)(A)(i) (ii) (emphases added). The section also defines the required EPSDT services as including:

such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section [defining "medical assistance" under the Act] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.
42 U.S.C. § 1396d(r)(5).

Another provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(43), requires that a state Medicaid plan include provisions to: (1) inform all eligible individuals under the age of twenty-one of the availability of the EPSDT services described in § 1396d(r); (2) provide or arrange for the provision of such screening services in all cases where they are requested; and (3) arrange for corrective treatment of all conditions detected by the screenings. See id. The implementing regulations specify that a participating state's Medicaid program must "[p]rovide for a combination of written and oral methods designed to inform effectively all EPSDT eligible individuals (or their families) about the EPSDT program." See 42. C.F.R. § 441.56. The information must be provided in "clear and nontechnical language" and tell eligible individuals or their families about the benefits of preventative health care, the nature of the EPSDT program (including the fact that it is cost-free in most cases), and where and how to obtain the services (including that necessary transportation services are available). Id. The regulations also contain provisions concerning timing and annual reminders, in some cases. In particulars the administering agency must have procedures to provide the relevant information "generally, within 60 days of the individual's initial Medicaid eligibility determination and in the case of families which have not utilized EPSDT services, annually thereafter."Id.

At all times relevant to this action, New York State has participated in the Medicaid program pursuant to a State plan that is administered and supervised by the New York State Department of Health ("DOH"). See 42. U.S.C. § 1396a(a)(5); 42 C.F.R. § 431.10; N.Y. Soc. Serv. L. § 363-a(1). This plan establishes a program called the "Child/Teen Health Plan" ("C/THP") to provide eligible children with the required EPSDT services. See N.Y. Soc. Serv. Law § 365-a(3)(a); N.Y. Comp. Codes. R. Regs. tit. 18, §§ 508.1(a) 508.8. New York state has delegated the responsibility to establish and administer an operating C/THP program to a number of local districts in the State; the City of New York is one such district. See N.Y. Soc. Serv. Law §§ 62(1) 365.

The gravamen of the plaintiffs' complaint is that the City and DOH have, because of inadequacies in their current policies and procedures, failed to meet their EPSDT obligations under the Medicaid Act, 42 U.S.C. § 1396a (a)(10), 1396a(a)(43)(A), (B) and (C), 1396d(a)(4)(B) and 1396d(r) (the "EPSDT provisions"), and their implementing regulations, 42 C.F.R. § 441.56 (a) and (b), 441.60(a), 441.61 and 441.62. Specifically, the plaintiffs allege that the City, in accordance with its current C/THP program and practices, fails effectively to (1) inform homeless children and their families that EPSDT services are available; (2) screen homeless children for asthma; (3) provide homeless children with diagnosis and necessary medical treatment services for asthma; (4) provide these children and their families with the required support services, including assistance for transportation to and scheduling of medical appointments; and (5) coordinate with other agencies and programs to ensure that homeless children receive all of the above services. (See Compl. ¶ 53.) The plaintiffs allege that DOH, through its own policies and practices, is similarly failing to meet its supervisory obligations to ensure that the City provides adequate EPSDT services to homeless children with asthma. (See Compl. ¶ 55.) The plaintiffs now seek to certify this action as a class action representing "all children who are now, or will in the future be, under the age of twenty-one; who are seeking or receiving emergency shelter in the City of New York; and who are eligible to receive Medicaid benefits." (Compl. ¶ 120; Pl.'s Br. at 3.)

The plaintiffs also originally sought to enforce rights under 42 U.S.C. § 1396a(a)(5) and its implementing regulations, 42 C.F.R. § 431.10 and 435.903. In Dajour B. v. City of New York, 2001 WL 830674, this Court held that these statutory provisions and regulations do not create enforceable rights, See id. at *11-12.

II

Before certifying a class, the Court must determine that the party seeking certification has satisfied the four prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. See, e.g., Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir. 1997); Coiner v. Cisneros, 37 F.3d 775, 796 (2d Cir. 1994). More specifically, the Court must find that:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a). The Court must also find that the party qualifies under one of the three sets of criteria set forth in Rule 23(b)(1), (2), or (3). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997);Coiner, 37 F.3d at 796. The plaintiffs here seek certification under Rule 23(b)(2), which provides for a class to be maintained where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole. . . ." If the Court finds both that the requirements of 23(a) have been met, and that the claims fall within the scope of Rule 23(b)(2), the Court may, in its discretion, certify the class. See In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 290 (2d Cir. 1992); Krueger v. New York Telephone Co. 163 F.R.D. 433, 438 (S.D.N.Y 1995).

A motion for class certification should not, however, be a mini-trial on the merits. See Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177-78 (1974); Krueger, 164 F.R.D. at 438. The dispositive question is not whether the plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 have been met. See Eisen, 417 U.S. at 178 (citing Miller v. Mackey Int'l, 452 F.2d 424, 427 (5th Cir. 1971) (Wisdom, J.)). The Supreme Court has instructed that it would be both unwise and unfair to reach the merits of a dispute in this context. See Id at 177-78. As the Court has explained, resolution of merits issues at this stage might allow some parties seeking certification to secure the benefits of the class action mechanism without first having met its requirements, and might subject some parties to adverse merits rulings without the benefit of the rules and procedural safeguards that traditionally apply in civil trials. See Eisen, 417 U.S. at 177-78. This Court should thus refrain from deciding any material factual disputes between the parties concerning the merits of the claims, see, e.g., Sirota v. Solitron Devices, Inc., 673 F.2d 566, 570-72 (2d Cir. 1982); Meyer v. Macmillan Publishing Co., 95 F'.R.D. 411, 414 (S.D.N.Y. 1982), and should accept the underlying allegations from the complaint as true. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir. 1978).

The Court must nevertheless conduct a "rigorous analysis" to determine whether the relevant requirements of Rule 23 have been met. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). The burden of persuasion lies with the party seeking certification, in this case the plaintiffs. See, e.g., Bishop v. New York City Dep't of Hous. Preservation and Dev., 141 F.R.D. 229, 234 (S.D.N.Y. 1992). In deciding whether the requirements of Rule 23 have been met, the Court may, and may be required to, examine not only the pleadings but also the evidentiary record, including any affidavits and results of discovery. See. e.g., Sirota, 673 F.2d at 571; Chateau de Ville Productions v. Tams-Witmark Music Library, Inc., 586 F.2d 962, 966 (2d Cir. 1978).

Defendant Novello argues that this motion should have been brought before the expiration of the deadline in the Scheduling Order for making "procedural motions." There was a good reason to delay the making of this motion to allow development of the record. In any event, this Court repeatedly adjourned the defendants' response to this motion without any suggestion by the defendants that the motion should be rejected as untimely. There is no basis in the papers to conclude that the defendants have been prejudiced in any way by the timing of the motion, and the plaintiffs would be prejudiced if unable to maintain the action as a class action. Therefore, to the extent that this motion should have been brought earlier, the defendants have waived that objection, and the Court extends the deadline nunc pro tunc.

The issue on this motion is thus whether the plaintiffs have met their burden of establishing, on the basis of the pleadings, affidavits, and the results of discovery, that the four prerequisites of Rule 23(a) have been met, and that the proposed class can be maintained under Rule 23(b)(2). See Krueger, 163 F.R.D. at 438.

The City argues that this Court lacks jurisdiction to decide this class certification motion because, as was more fully briefed in its Memorandum of Law in Support of the City's Motion to Dismiss the First Amended Complaint, the Court allegedly lacks federal jurisdiction in this action, and the Federal Rules of Civil procedure do not extend or limit the jurisdiction of the courts. See Fed.R.Civ.P. 82. Between the time when the City presented this argument and the disposition of this class certification motion, the Court rejected the City's claim that the Court lacks federal subject matter jurisdiction over this action. The jurisdiction in this case thus derives squarely from 28 U.S.C. § 1331, rather than from the Federal Rules of Civil procedure alone.

III

It is necessary in the first instance to define the class sought to be certified. The plaintiffs sought to certify a class consisting of "all children who are now, or will in the future be, under the age of twenty-one; who are seeking or receiving emergency shelter in the City of New York; and who are eligible to receive Medicaid benefits." (Compl. ¶ 120; Br. at 3). The defendants presented a number of arguments suggesting that this definition is overbroad because it is not limited to children who have or may potentially have asthma. This definition may thus include some individuals who either lack an interest in the relief requested or, in the defendants' view, have adverse interests.

It is unnecessary to decide whether these arguments are meritorious because the plaintiffs do not object to limiting the proposed class to those members who also "have or may potentially have asthma." (Pl.'s Rep. at 8.) This limitation fully addresses all of the overbreadth concerns raised by the defendants. Therefore, the Court will assess whether this class meets the substantive criteria set forth in Rules 23(a) and 23(b)(2). See generally Lundquist v. Security Pac. Automotive Financial Serv. Corp., 993 F.2d 11, 14 (2d Cir. 1993) (a district court "is not bound by the class definition proposed in the complaint and should not dismiss the action simply because the complaint seeks to define the class too broadly").

The proposed class would then consist of "all children who are now, or will in the future be, under the age of twenty-one; who are seeking or receiving emergency shelter in the City of New York; who are eligible to receive Medicaid benefits; and who have or may potentially have asthma." (Id. (emphasis added).)

IV A.

The defendants do not contest numerosity, and this requirement is easily met. There is undisputed evidence in the record suggesting that the homeless shelters in New York City currently house approximately 8,000 to 10,000 children under the age of twenty-one at any given time. Other evidence suggests that almost 40% of these children — or somewhere in excess of 3,000 — suffer from asthma at any given time. (See Declaration of David S. Frankel, dated Jan. 17, 2001 ("Frankel Decl."), at ¶ 4.)

The number of plaintiffs in the proposed class is thus very likely on the order of thousands, and, certainly, far greater than forty — the number at which numerosity is generally presumed in this Circuit. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 2001); See also Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993). To the extent that there are common issues in question, allowing all these potential plaintiffs to pursue individual actions would be enormously burdensome on the parties and on the courts, and joinder would clearly be impracticable. In light of these facts, and the defendants' lack of objection, the plaintiffs have satisfied the numerosity requirement.

B.

The commonality requirement is met if the plaintiffs' grievances share a common question of law or fact. See Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). "Commonality does not mandate that all class members make identical claims and arguments," Trief v. Dun Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992), and can be met if the gravamen of the complaint is that defendants violated the rights of the class members in the same general fashion, see Open Hous. Ctr., Inc. v. Samson Mgmt. Corp., 152 F.R.D. 472, 476 (S.D.N.Y. 1993). The mere presence of some asserted factual differences among class members is therefore not a bar to commonality. See e.g., Kreuger v. New York Telephone Co., 163 F.R.D. 433, 439 (S.D.N.Y. 1995); Open Hous. Ctr., 152 F.R.D. at 476.

As the plaintiffs correctly note, this entire controversy turns on a common question of law: namely, whether the defendants are required under the Medicaid Act to provide or supervise the provision of the specific screening, diagnosis and treatment services that the plaintiffs claim to be required. See Baby Neal, 43 F.3d at 56 ("Because the requirement may be satisfied by a single common issue, it is easily met. . . ."). The defendants' liability in this § 1983 action also turns on a common question of fact: whether the kinds of injuries allegedly faced by the members of the class derive from policies or practices on the part of the defendants that systematically deprive members of these services. Commonalities like these are generally sufficient to meet the requirements of Rule 23(b)(2) in actions seeking injunctive relief to reform a child welfare system. See, e.g., Marisol A. v. Giuliani, 126 F.3d 372, 376-77 (2d Cir. 1997); Baby Neal, 43 F.3d at 57 (citing cases); Nichols v. Williams, 00-CV-2229, 2001 WL 951716, at *6 (E.D.N.Y. Aug. 16, 2001)

The decision of the Second Circuit Court of Appeals in Marisol A. strongly supports the conclusion that these commonalities are in fact sufficient to meet the requirements of Rule 23(a)(2) in this case. InMarisol A., the district court had granted the plaintiffs class certification to pursue a myriad of constitutional, regulatory, and statutory challenges to New York City's child welfare system, where the common question of law was "whether each child has a legal entitlement to the services of which that child is being deprived," and the common issue of fact was "whether defendants systematically have failed to) provide these legally mandated services." Marisol A., 126 F.3d at 376. These questions are virtually identical in form to the ones identified as common in the present case.

The Court of Appeals affirmed the class certification decision, even though it noted that no single plaintiff (named or otherwise) was affected by every legal violation alleged, and even though no single specific legal claim affected every member of the class. See id. at 377. The diversity of legal claims warranted further refinement of the class into subclasses based on the more precise legal bases for claims; but did not undermine the commonality necessary for class certification. See id. at 376-77, 378-79. There was commonality because the plaintiffs' alleged injuries derived "from a unitary source of conduct by a single system. . . ." Id. at 377.

The commonalities in the present case are even greater than those inMarisol A. The plaintiffs allege injuries arising not just from any "unitary source of conduct," but from a particularized course of conduct. In addition, the plaintiffs bring not multiple claims but rather a single claim, which alleges violations of the EPSDT provisions of the Medicaid Act and their implementing regulations. These highly interrelated provisions deal with a specific subclass of medical services that are to be provided to eligible individuals under the age of twenty-one.

Given these allegations of fact and law, the plaintiffs have easily met the commonality requirement of Rule 23(a)(2).

C.

Rule 23(a)(3) requires that the claims of those seeking to represent a class be typical of those of the class as a whole, and "is satisfied when each member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability."In re Drexel, 960 F.2d at 291 (citing Eisen, 391 F.2d at 562)). Like Rule 23(a)(2), Rule 23(a)(3) "does not require that the factual background of the named plaintiff's case be identical with that of the other members of the class. . ." Bishop, 141 F.R.D. at 238 (quoting Burka v. New York City Transit Auth., 110 F.R.D. 595, 604-05 (S.D.N.Y. 1986)). The Rule does, however, ask courts to examine whether "the disputed issue[s] occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." Id. (quoting Burka, 110 F.R.D. at 604-05)

This requirement is logically distinct from the requirement that the grievances of the class members share a common question of law or of fact, but the commonality and typicality requirements tend to merge in practice because similar considerations animate them. See Marisol A., 126 F, 3d at 376; Rossini v. Ogilvy Mather, Inc., 798 F.2d 590, 597 (2d Cir. 1986). The crux of both requirements is to ensure that "maintenance of a class action is economical and [that] the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence."Falcon, 457 U.S. at 157 n. 13.

The typicality of the plaintiffs' claims is indicated by the fact that the common issues of law and fact in this case are not peripheral to the individual grievances raised by the named plaintiffs or the class members they seek to represent. To the contrary, these questions are central to the grievances of all of the class members because no one could succeed in an individual § 1983 claim without establishing both that the Medicaid Act gives homeless children under the age of twenty-one the right to the particular EPSDT services they seek and that the City and/or DOH has a policy or custom that provides these services inadequately.See generally Monell v. Department of Social Serv., 436 U.S. 658, 691 (1978); See also Kentucky v. Graham, 473 U.S. 159, 166 (1985). As in In re Drexel, each named plaintiff's claim thus arises from the same challenged policies or practices and each plaintiff would have to make the same or similar legal arguments to establish the defendants' liability. See In re Drexel, 960 F.2d at 291.

The City argues that the plaintiffs' claims are nevertheless atypical because whether an individual has been denied EPSDT services will depend on the unique circumstances of each individual's case. A virtually identical argument was explicitly rejected by the Court of Appeals inMarisol A., 126 F.3d at 376-77, and by the Supreme Court in Califano v. Yamasaki, 442 U.S. 682, 701 (1979). There is a common question of law applicable to all plaintiffs, namely whether the plaintiffs have a right under the Medicaid Act to the EPSDT services they seek. This issue can be resolved irrespective of the kinds of differences that the City alleges between the class members and the named plaintiffs.

To the extent that the City relies on differences between the types of injuries allegedly suffered by different class members, the argument is similarly without merit. There still remains a critical and common issue of fact as to whether the various alleged injuries were in fact caused by a policy or practice, rather than a series of unconnected acts. See. e.g., Robidaux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993). Moreover, the named plaintiffs seek only declaratory and injunctive relief to reform a continuing policy or practice. Because compensatory damages need not be assessed, the precise ways that various members of the class may have been injured is less relevant than the fact that a continuing policy or practice may be causing harm to many of the class members. See Baby Neal, 43 F.3d at 58. In these circumstances, differences in the kinds of injuries allegedly caused by a policy or practice are no bar to the typicality of a named plaintiff's claim. See. e.g., Falcon, 457 U.S. at 157-59; Marisol A., 126 F.3d at 377; Baby Neal, 43 F.3d at 58.

Novello raises a variant of the argument that facts about the injuries sustained by the named plaintiffs render their claims atypical. Novello argues that the named plaintiffs have suffered no personal injury at all, and that their claims are thus not typical of the claims of a class that allegedly faces actual injury. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-26 (1997) ("[A] class member must be part of the class and possess the same interest and suffer the same injury as the class members in order to represent the class" (quotation marks omitted); East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 404-05 (1977).

Novello joins the argument that the claims of the named plaintiffs are not typical of the claims of the class with an argument that the named plaintiffs lack standing to bring this action because they have suffered no injury in fact. See. e.g., Lewis v. Casey, 518 U.S. 343, 357-58 (1996); Senior v. Eastern Ky. Welfare Rights Org., 426 u.S. 26, 40 n. 20 (1976). The current motion is not, however, a motion to dismiss for lack of standing, and the issues of class certification are distinct from the issue of standing. See Ortiz v. Fiberboard Corp., 527 U.S. 815, 831 (1999) (class certification issues are "logically antecedent" to Article III concerns, and pertain to "statutory standing," which may properly be treated before Article III standing); Amchem, 521 U.S. at 612 (same). In any event, as explained below, as well as in the decision denying the motion for summary judgment, the plaintiffs have presented sufficient evidence that they have been injured in fact by a policy and practice of the defendants such that they have standing to bring this suit.

In support of this argument, Novello points to evidence in the record, which, in her view, establishes that most of the named plaintiffs or their families (i) "are quite aware of their children's asthma" (DOH's Opp. at 8); (ii) have "either received information about the C/THP . . . or else regarded that information as irrelevant" (DOH's Opp. at 7); and (iii) "have obtained adequate Medicaid-reimbursed medical care for their children's asthma," which they find effective (DOH's Opp. at 8). The plaintiffs respond with evidence that indicates that they have received information about the C/THP program only in an untimely and uneven manner, if at all, and that they have received at best episodic and ineffective care, highlighted by emergency department visits for severe asthma attacks, and containing little or no education in asthma management.

Whatever the ultimate factual resolutions of the plaintiffs' claims, Novello's arguments do not undermine the typicality of the plaintiffs' claimed damages for several reasons. First, the fact the plaintiffs may know about their asthma by now, and may have known for some time (see Compl. ¶¶ 57, 68, 80, 101, 109), does not undermine the plaintiffs' allegation that they have been injured because they have been unable to obtain the kinds of formal screenings and diagnoses needed to obtain medical services through the C/THP program, to alert C/THP officials that further treatment is required, or, in some cases, to obtain help in managing the illness. (See, e.g., Compl. ¶¶ 61, 64, 78, 85, 90, 106-07, 118-19.) Second, while most of the plaintiffs may have learned about the C/THP program by now, this evidence is tangential to whether the plaintiffs were injured by failures to provide this information within the time frames and in the manners required by the Medicaid Act. Finally, most of the evidence suggesting that some of the plaintiffs may currently be receiving satisfying Medicaid-reimbursed treatment for asthma relates to services obtained after this action was commenced, and after many of the alleged injuries allegedly occurred.

There is also ample evidence in the record, which, if believed, would indicate that the named plaintiffs have suffered actual injuries resulting from the City's and DOH's policies or practices. The claims raised by the named plaintiffs are typical of the class they seek to represent.

D.

Much like the typicality requirement, the requirement that the named plaintiffs adequately represent the class is motivated by concerns similar to those driving the commonality requirement, namely, the efficiency and fairness of the class certification. See Falcon, 457 U.S. at 157 n. 13;Marisol A., 126 F.3d at 378. To achieve these ends, Rule 23(a)(4) requires the party seeking certification to demonstrate that (i) class counsel is qualified, experienced, and generally able to conduct the litigation, and (ii) there is no conflict of interest between the named plaintiffs and other members of the plaintiff class. See In re Drexel, 960 F.2d at 291.

With regard to the first criterion, the plaintiffs are jointly represented in this action by The Legal Aid Society; a number of attorneys affiliated with the Association to Benefit Children, which is a homeless rights advocacy organization; a number of attorneys from the law firm Kramer Levin Naftalis Frankel LLP; and the Natural Resources Defense Council. The plaintiffs' counsel have extensive experience litigating class action lawsuits in general and welfare cases in particular, and the defendants have not contested the adequacy of counsel. The plaintiffs' counsel have also pursued this case vigorously from its inception. Based on these facts, the plaintiffs have established the adequacy of class counsel.

There are also no conflicts of interest among the plaintiffs. The plaintiffs do not seek damages but rather broad-based injunctive relief, which would require improvements in the quality of EPSDT services offered to all members of the proposed class. The interests of all the class members are thus aligned. See e.g., Marisol A., 126 F.3d at 378.; Baby Neal, 43 F.3d at 63.

The defendants attempt to undermine this conclusion by arguing that some of the plaintiffs no longer have a continuing interest in receiving EPSDT services or information about the C/THP program because they have found alternative means to obtain Medicaid-reimbursed services for asthma. Evidence of lack of interest is, however, not evidence of a conflict in interest, and "[g]enerally, adequacy of representation entails inquiry into . . . whether plaintiffs interests are antagonistic to the interest of other members of the class . . . ." See Baffa v. Donaldson, Lufkin Jenrette Securities Corp., 222 F.3d 52, 60 (2d Cir. 2000). None of the defendants' evidence indicates that the interests of any of the named plaintiffs is antagonistic to those of any members of the class.

To the extent that the defendants have attempted to argue that the claims of the named plaintiffs are moot, the argument is without merit. There is ample evidence in the record which, if believed, indicates that most if not all of the named plaintiffs could still benefit from improved treatment services through the C/THP program. Moreover, there is sufficient evidence that the plaintiffs may benefit from future periodic screening, diagnoses, and information, in case their illnesses or circumstances change. All that is required to represent a class adequately is that a plaintiff raise a claim that is not yet moot when the class is certified. See County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) ("Our cases leave no doubt . . . that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review" and that "the termination of a class representative's claim does not moot the claims of the unnamed members of the class" (citations omitted).).

Moreover, there is ample evidence in the record that the alternative medical services in question were obtained with the aid of the attorneys in this case rather than through New York State's EPSDT program. Even if these services were to have mooted the named plaintiffs' claims, the plaintiffs have alleged the constant existence of a class of persons suffering from the same kind of deprivations they allege. (See Compl. ¶ 1.) Because the named plaintiffs were in need of some EPSDT services at the time the lawsuit was brought — whether screening, diagnosis, treatment, informational services, or all of these services — the subsequent provision of some of these services to the named plaintiffs would not moot the claims of unnamed class members. See County of Riverside, 100 U.S. at 52; United States Parole Comm'n v. Geraghty, 445 U.S. 388, 399 (1980); Gerstein v. Pugh, 420 U.S. 103, 110 n. 11 (1975)

In sum, the named plaintiffs, with the aid of their present counsel, will adequately represent the interests of the proposed class.

IV.

Rule 23(b)(2) allows for parties who otherwise meet the prerequisites of Rule 23(a) to maintain a class action in circumstances where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole. . ." In Marisol A., the Court of Appeals found that this criterion was met where, as here, the plaintiffs had alleged that the violations arose from "central and systemic failures" in a child welfare system and sought only declaratory and injunctive relief, which would resolve the alleged problem with respect to the entire class. Marisol A., 126 F.3d at 378. The defendants have not distinguished Marisol A. from the present case in any way, and there is no distinction relevant to the Rule 23(b)(2) analysis.

Indeed, Rule 23(b)(2) was formulated precisely to allow for class actions where, as here, parties seek broad injunctive relief to vindicate the civil rights of a large class of individuals. See Marcera v. Chinlund, 595 F.2d 1231, 1237 (2d Cir. 1979) ("It is well established that civil rights actions are the paradigmatic 23(b)(2) class suits, for they seek classwide structural relief that would clearly redound equally to the benefit of each class member."), vacated on other grounds, Lombard v. Marcera, 442 U.S. 915 (1979); Alliance to End Repression v. Rockford, 565 F.2d 975, 979 n. 9 (7th Cir. 1977); Fed.R.Civ.P. 23(b)(2) advisory committee's note (1966).

Rather than addressing these issues squarely, the defendants cite a number of cases in which Rule 23(b)(2) motions were allegedly denied where "injunctive and declaratory relief is sought against a governmental entity." (City's Opp. at 10.) But, as the Court of Appeals's opinion inMarisol A. makes clear, there is no general rule that class actions cannot be maintained for declaratory and injunctive relief against government entities.

Some of the cases cited by the City do support the proposition, sometimes referred to as the "Galvan rule", that class certification should be denied when pursuit of the claim in a class action form would be "largely a formality" or "superfluous." See. e.g., Berger v. Heckler, 771 F.2d 1556, 1566 (2d Cir. 1985); Galvan v. Levine, 490 F.2d 1255, 1261-62 (2d Cir. 1973); and Vulcan Society v. Civil Service Comm'n, 490 F.2d 387, 399 (2d Cir. 1973). The defendants argue that class certification would be a formality in this case because the members of the proposed class would arguably profit equally from an injunction obtained by the six named plaintiffs in a non-class action as from one obtained in a certified class action.

This case is very different from Galvan. The defendant in Galvan had already explicitly conceded that it had a policy or practice that similarly affected all of the members of the proposed class and had indicated to the Court that it understood an individual judgment to bind it with respect to the other members of the class. See Galvan, 490 F.2d at 1261. The defendant in Galvan had also already taken positive steps to withdraw the policy even before the entry of an adverse judgment and stated that it did not intend to reinstate the policy. See id.

In the present case, by contrast, the City and DOH do not concede that their policies have resulted in similar widespread effects with regard to the class members, and instead vigorously argue that each of the individuals' claims arise from circumstances unique to their cases. The defendants have not asserted that they have taken any steps to remedy what the plaintiffs allege are widespread practices in violation of federal law. There is thus far less of a guarantee that a successful non-class action would result in adequate relief for the whole class. Numerous district courts in this Circuit have found Galvan to be inapplicable under similar circumstances. See e.g., Karen L. v. Physicians Health Services, Inc., 202 F.R.D. 94, 103-04 (D. Conn. 2001);Boyland v. Wing, 2001 WL 761180, at *12-13 (E.D.N.Y. Apr. 06, 2001); Ashe v. Board of Elections, 124 F.R.D. 45, 51 (E.D.N.Y. 1989); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y. 1985); Bacon v. Toia, 437 F. Supp. 1371, 1383 n. 11 (S.D.N.Y. 1997).

The defendants also vigorously argue that the named plaintiffs' claims are now moot. Courts have found exceptions to the Galvan rule when problems of mootness on, the part of the named plaintiffs might otherwise prevent a class of injured persons from obtaining injunctive relief to reform a continuing policy or practice. See e.g., Monaco v. Stone, 187 F.R.D. 50, 63 (E.D.N.Y. 1999); Alston v. Coughlin, 109 F.R.D. 609, 612 (S.D.N.Y. 1986); Jane B. v. New York City Dep't of Soc. Servs., 117 F.R.D. 64, 72 (E.D.N.Y. 1999); Ashe, 124 F.R.D. at 51.

Given these facts, and the plaintiffs' continued interest in class certification, the class may be maintained under Rule 23(b)(2).

CONCLUSION

For the foregoing reasons, the Court grants the plaintiffs' motion under Rule 23(b)(2) and certifies a class comprising of all children who are now, or will in the future be, under the age of twenty-one; who are seeking or receiving emergency shelter in the City of New York; who are eligible to receive Medicaid benefits; and who have or may potentially have asthma.

SO ORDERED.