• Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 1 of 8

F~LEn

~ i''WlSAS ~ .t~S~;.f'DsIrS:TRIICClT CCURT

IN THE UNITED STATES DISTRICT EASTERN DISTRICT OF AR~~ WESTERN DIVISION

. J ~s17 20D3 M'l5'/V'3.l'&lco~~~"~I{, CLERK

TESSA G., A MINOR, BY AND THROUGH

jf>,lIoES I•N•. t;_\C_C_OF_J_.;u,,yP;C~~~epClERK

HER FATHER AND NATURAL GUARDIAN, B'I:------

MARK G.

PLAINTIFF

VS.

CASE NO. 4:03CV00493 GTE

ARKANSAS DEPARTMENT OF HUMAN SERVICES, KURT KNICKREHM, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES, AND JAMES GREEN, PH.D., IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES DEFENDANTS

DEFENDANTS

ANSWER

Come the Arkansas Department of Human Services, Kurt Knickrehm, in his

individual capacity and in his official capacity as Director of the Arkansas Department of

Human Services, and James Green, Ph.D., in his individual capacity and in his official

capacity as Director of the Division of Developmental Disabilities Services of the

Arkansas Department of Human Services, hereinafter "defendants," and for their Answer

state:

I. Defendants admit the allegations contained in paragraphs I through 4 of

plaintiffs complaint.

Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 2 of 8
2. In response to paragraph 5 of plaintiffs complaint, defendants admit that plaintiff seeks declaratory and injunctive relief but deny that plaintiff is entitled to relief, and further deny that defendants have violated any of plaintiff s legally protected rights.
3. In response to paragraph 6 of plaintiffs complaint, defendants admit that 28 U.S.C. § 1331 vests the Court with federal question jurisdiction, but deny that this complaint gives rise to such jurisdiction.
4. In response to paragraph 7 of plaintiffs complaint, defendants admit that the Court has civil rights jurisdiction pursuant to 28 U.S.C. § 1343, but deny that this complaint gives rise to such jurisdiction.
5. Defendants admit the allegations contained in paragraphs 8 through 21 of plaintiffs complaint.
6. Defendants deny the allegations contained in paragraphs 22-24 of plaintiffs complaint.
7. Defendants admit the allegations contained in paragraphs 25 through 29 of plaintiffs complaint.
8. Defendants deny the allegations contained in paragraph 30 of the complaint as stated, and in response allege that ADHS sent an ACS waiver enrollment form to plaintiffs father, who completed and returned the form, thereby assuring plaintiffs position on the ACS waiver waiting list. ADHS has not sent an ACS application form to plaintiff or to plaintiffs father. Defendants deny that "there are nearly 1000 unfilled 'slots' under the ACS program."
9. Defendants admit the allegations contained in paragraphs 31 and 32 of plaintiffs complaint.
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Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 3 of 8
10. In response to paragraph 33 of plaintiffs complaint, defendants deny that the term "reasonable promptness" creates an enforceable federal right, and therefore deny the legal conclusions in paragraph 33. Defendants admit that ADHS sent no enrollment application to plaintiff, that plaintiff is on the ACS waiver waiting list, and that defendants do not know when an ACS waiver slot will become available to plaintiff.
II. In response to paragraph 34 of plaintiff s complaint, defendants admit that ADHS allowed the plaintiffs father to submit an ACS enrollment form on plaintiffs behalf, that plaintiff is on the ACS waiver waiting list, and that defendants do not know when an ACS waiver slot will become available to plaintiff. Defendants deny that plaintiff is eligible for one ofthe open ACS waiver slots.
12. In response to paragraph 35 of plaintiff s complaint, defendants admit that the Medicaid Act imposes certain obligations on the ADHS, but deny that plaintiff has not received appropriate consideration.
13. In response to paragraph 36 of plaintiffs complaint, defendants admit that the Medicaid Act imposes certain obligations on the ADHS, but deny that plaintiff is eligible for one of the open slots and deny that defendant failed to provide plaintiff with a meaningful opportunity to apply for ACS services.
14. Defendants admit the allegations contained in paragraph 37 of plaintiffs complaint.
IS. Defendants admit that ADHS acted under color of state law but deny the remaining allegations contained in paragraph 38 of plaintiffs complaint.
16. Defendants admit the allegations contained in paragraph 39 of plaintiffs complaint.
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Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 4 of 8
17. In response to paragraph 40 of plaintiffs complaint, defendants admit that the Medicaid Act imposes obligations on the ADHS in connection with the determination of eligibility.
18. In response to paragraph 41 ofplaintiffs complaint, defendants deny that any act or omission of ADHS has prejudiced any federally enforceable right plaintiff may have in connection with the ACS waiver program.
19. Defendants deny the allegations contained in paragraph 42 ofplaintiffs complaint as stated, and affirmatively allege that 42 U.S.C. § l396n (c)(2) affords Medicaid recipients the right to choose available waiver services.
20. In response to paragraph 43 of plaintiff's complaint, defendants deny that any act or omission of ADHS has prejudiced any federally enforceable right plaintiff may have in connection with the ACS waiver program.
21. Defendants deny the allegations contained in paragraph 44 of plaintiffs complaint, and affirmatively allege that ADHS has determined that plaintiff is not presently eligible for ACS services and is not entitled to one of the open slots.
22. Defendants deny the allegations contained in paragraph 45 of plaintiffs complaint as stated, and affirmatively allege that 42 U.S.C. § 1396n (c)(2) affords Medicaid recipients the right to choose available waiver services.
23. Defendants deny the allegations contained in paragraph 46 of plaintiffs complaint, and affirmatively allege that ADHS has determined that plaintiff is not presently eligible for ACS services, that plaintiff is not presently entitled to one of the open ACS waiver slots, and that plaintiff has not been deprived of the freedom to choose
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Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 5 of 8
available waiver services because there are no available ACS waiver slots to which she could be entitled.
24. Defendants admit the allegations contained in paragraph 47 of plaintiffs complaint.
25. In response to paragraph 48 of plaintiffs complaint, defendants admit that ADHS acted under color of state law, and admit that ADHS has not offered plaintiff an administrative adjudication in connection with plaintiffs request for ACS waiver servIces.
26. Defendants admit the allegations contained in paragraphs 49-51 of plaintiffs complaint.
27. In response to paragraph 52 of plaintiffs complaint, defendants admit that ADHS has not offered plaintiff an administrative adjudication in connection with plaintiffs request for ACS waiver services, but deny that plaintiffs placement on a waiting list violates any rights plaintiff may have in connection with an administrative adjudication.
28. Defendants deny the allegations in paragraph 53 of plaintiffs complaint, and affirmatively allege that in the absence of available waiver services for which plaintiff could be presently eligible or to which plaintiff could be presently entitled, there is no question of law or fact to adjudicate via an administrative hearing.
29. In response to paragraph 54 of plaintiffs complaint, defendants admit that ADHS acted under color of state law, but deny that any act or omission of ADHS has prejudiced any federally enforceable right plaintiff may have in connection with the ACS waIver program.
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Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 6 of 8
30. Defendants admit the allegations contained in paragraphs 55 and 56 of plaintiffs complaint.
31. Defendants deny the allegations contained in paragraph 57 of plaintiffs complaint, and affirmatively allege that in the absence of available waiver services for which plaintiff could be presently eligible or to which plaintiff could be presently entitled, there is no question of law or fact to adjudicate via an administrative hearing.
32. In response to paragraph 58 of plaintiffs complaint, defendants deny that any act or omission of ADHS has prejudiced any federally enforceable right plaintiff may have in connection with the ACS waiver program, and affirmatively allege that in the absence of available waiver services for which plaintiff could be presently eligible or to which plaintiff could be presently entitled, there is no question of law or fact to adjudicate via an administrative hearing.
33. Paragraph 59 of plaintiffs complaint requires no response. 34. Defendants deny each allegation contained in plaintiffs complaint that was not admitted above. 35. The complaint fails to state a cause of action. 36. ADHS and state officials sued in their official capacities are immune from suit under the United States Constitution, Amendment II. 37. Kurt Knickrehm and Dr. James C. Green are entitled to qualified immunity in their individual capacities as Director of the Arkansas Department of Human Services and Director of the Division of Developmental Disabilities Services, respectively. 38. The Medicaid Act creates no privately enforceable rights. 39. Medicaid waiver services are not an entitlement.
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Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 7 of 8

40. Plaintifflacks standing.
WHEREFORE, defendants pray that plaintiffs complaint be dismissed.
Respectfully submitted,
MIKE BEEBE Attorney General
By: No. 94127
Assistant Attorney Gen 323 Center Street, Suite 200 Little Rock, AR 72201-2610 (501) 682-3643 Counsel for Defendants

ARKANSAS DEPARTMENT

OF HUMAN SERVICES

By:

/~~

BRECK G. HOPKINS No. 77065

Chief Deputy Counsel

P. O. Box 1437, Slot S260

Little Rock, AR 72203-1437

(501) 682-8934

Counsel for Defendants

7

Case 4:03-cv-00493-GTE Document 7 Filed 07/17/2003 Page 8 of 8 CERTIFICATE OF SERVICE
I, Breck Hopkins, do hereby certify that a copy of the above and foregoing Answer was served upon Martin W. Bowen, Attorney at Law, 100 Morgan Keegan Drive, Suite 100, Little Rock, AR 72202, by placing a true and correct copy in the U. S. Mail, with sufficient postage, this j"; day of July, 2003.
-0":<,~,;d,)6.;,:~?,..
BreckHopkins .
8

 
 \ .

Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 1 of 10

IN THE UNITED STATE DISTRICT COURT ,,('-:-C' 1 ",' EASTERN DISTRICT OF ARKANSAS'-u .. WESTERN DIVISION

- "'-'! ,-'

TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARKG.
VS.
ARKANSAS DEPARTMENT OF HUMAN SERVICES, KURT KNICKREHM, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES, AND JAMES GREEN, PH.D., IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES

PLAINTIFF
4 - 0 3 - C V - 0 0 4 9 3 Glt1t I
CASENO. _ _ __
DEFENDANTS

BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

L

FACTS PRESENTED

Title XIX of the Social Security Act, 42 U.S.c. § 1396, et seq., commonly referred to as

the Medicaid Act, is a joint federal and state program designed to provide medical assistance to

qualified persons. North Memorial Medical Center v. Gomez, 59 F.3d 735, 737 (8th Cir. 1995).

Under the Medicaid Act, if a state agrees to establish a Medicaid plan that satisfies the

requirements of Title XIX, the federal government will pay a specified percentage of the total

amount expended as "medical assistance" under the plan. 42 U.S.c. § 1396. Some Medicaid

services are mandatory and must be provided under the plan, and other services are optirnai.

DOC-UVCNT

f

'3" I 'J"CI"R

. ---'-"'-W"(. ,~~-;'~'''~f_',(,;'~~;~'~\'~r\CK

Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 2 of 10
Arkansas Medical Society. Inc. v. Revnolds, 6 F.3d 519, 526 (8th CiT. 1993). Participation in the Medicaid program is voluntary, but if a state chooses to participate, it must do so in accordance with federal statutes and regulations. Little Rock Family Planning Services. P.A. v. Dalton. 60 F.3d 497, 498 (8th CiT. 1995).
The federal Department of Health and Human Services is charged with administration of the Medicaid program, and has delegated much of its responsibility to Centers for Medicare & Medicaid Services ("CMS "). Arkansas participates in the Medicaid program, and Arkansas Department of Human Services ("ADHS") is the state agency charged with administration of the Medicaid program in Arkansas. Pediatric Specialtv Care v. Arkansas Department of Human Services, 293 F.3d 472, 475-476 (8th CiT. 2002). Among the optional services that may be provided by states under the Medicaid Act are intermediate care facility services for mentally retarded or developmentally disabled individuals provided in an intermediate care facility for the mentally retarded ("ICF/MR program"). 42 V.S.C. § 1396d(a)(l5). In addition, as an alternative to providing services in an institution under the ICF/MR program, the Medicaid Act gives states the option of providing home and community-based services for mentally retarded and developmentally disabled individuals ("HCBS program). 42 V.S.c. § 1396n.
ADI-IS has chosen to provide services under the ICF/MR program, and an ICF/MR program is included in the Arkansas State Medicaid Plan ("State Plan"). ADHS has also chosen to provide services under the HCBS program. and an HCBS program is included in the State Plan. The HCBS program in Arkansas is called the Alternative Community Services Medicaid Waiver Program ("the ACS program") and is administered by the Division of Developmental
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Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 3 of 10
Disabilities Services of ADHS. In its current form, the ACS program provides the full range of Medicaid benefits available under the State Plan. In addition, the ACS program provides case management services, consultation services, crisis abatement respite care services, integrated support services, physical adaptation/adaptive aids, specialized medical supplies, and supported employment services.
Under the ACS program approved by CMS, ADHS has agreed to provide ACS services to 3,598 unduplicated recipients in state fiscal year 2002/2003, and the same number of "slots" for state fiscal year 2003/2004. As of May 12,2003, the defendants have filled only 2,631 of the 3,598 "slots" available in state fiscal year 2002/2003, and the remaining 967 "slots" have not been filled.
The plaintiff is a five-year-old girl with Down syndrome, and was born with congenital heart defects that have required surgery. She cannot speak or recognize dangers, resulting in a need for constant supervision. The plaintiff requires supplemental feeding through a gastrostomy tube in order to meet her nutritional needs, and has other developmental and physical disabilities resulting from her Down syndrome. The plaintiffs father would like to enroll her in the ACS program, and called ADHS in November of2002 and requested an application. ADHS would not provide the plaintiff or her father with an ACS enrollment application, but told the plaintiffs father that he could submit a Client's Choice form in which he could designate whether he was interested in obtaining services for his daughter under the ACS program or ICF/MR program. ADHS sent a Client's Choice form to the plaintiffs father, which he prepared on her behalf and sent back to ADHS on November 22,2002. On January 8,2003, ADHS wrote a letter to the plaintiffs father in which it acknowledged that it had received his Client's Choice form, and that
3

Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 4 of 10
his daughter "has been added to the Request List and currently is number 2285 on the waiver request list."
ADHS refuses to send an ACS enrollment application to the plaintiff or her father, and has merely placed the plaintiff on a "request list" for an indefinite period of time despite the fact that there are nearly 1000 unfilled slots under the ACS program, Based on information and reasonable belief, ADHS has taken the same action in response to requests for ACS services made by thousands of other disabled individuals, II, PRELIMINARY INJUNCTIVE RELIEF
By refusing to give the plaintiff an application for ACS services, the defendants have violated, and continue to violate, the plaintiffs rights under 42 U.S.c, § I 396a(a)(8), 42 U.S.c. § I 396n(c)(2), 42 U.S.c. § l396a(a)(3), and the procedural due process component of the Fourteenth Amendment to the Constitution of the United States. For these reasons, the plaintiff requests a preliminary injunction that requires the defendants to give the plaintiff an application for ACS services so that her fatl1er can prepare and submit the application on her behalf; to process with reasonable promptness the application for ACS services to be submitted by the plaintiff; to issue a decision with reasonable promptness in response to the application for ACS services to be filed by the plaintiff; to promptly notify the plaintiff of the decision made by ADHS with respect to her application for ACS services; to place the plaintiff in the ACS program with reasonable promptness if she subsequently is determined by ADHS to be eligi ble for ACS services; to provide the plaintiff with a fair hearing, consistent with federal constitutional principles of procedural due process, with respect to any adverse decision made by
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Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 5 of 10
ADHS; and to notifY the plaintiff of her right to a fair hearing, and any mles issued by ADHS with respect to the filing and prosecution of appeals.
In Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th CiT. 1991) (en banc), the Eighth Circuit identified the following factors which should be considered when preliminary injunctive relief is requested:
1. The threat of irreparable harm to the movant; 2. The state of the balance between this harm and the injury that granting the
injunction will int1ict on other parties litigant; 3. The probability that movant will succeed on the merits; and 4. The public interest. Id. at 114. These factors are not to be considered in isolation. "At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined. The equitable nature of the proceeding mandates that the court's approach be t1exible enough to encompass the particular circumstances of each case." Id. at 113. In balancing the equities no single factor is determinative. The likelihood that plaintiff ultimately will prevail is meaningless in isolation. In every case, it must be examined in the context of the relative injuries to the parties and the public. If the chance of irreparable injury to the movant should relief be denied is outweighed by the likely injury to other parties litigant should the injunction be granted, the moving party faces a heavy burden of demonstrating that he is likely to prevail on the merits. Conversely, where the movant has raised a substantial question and the equities are otherwise strongly in his favor, the showing of success on the merits can be less. Id. In the present case, the Dataphase factors militate clearly in favor of the plaintiffs request for preliminary injunctive relief. A. THREAT OF IRREPARABLE HARM
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Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 6 of 10
The plaintiff, like thousands of other disabled persons in Arkansas who have been placed on the "request list", suffers the threat of irreparable harm because the defendants refuse to give her an application for ACS services. Without an application, the plaintiff has no way of receiving all of the services available under the ACS program. The plaintiff is eligible for, and currently receives, services under the States's TEFRA Waiver Program, but those services do not include many home and community based services available under the ACS program. Without such services, the plaintiff will not develop skills that will allow her to achieve her greatest functional capacity and highest level of independence. The plaintiff faces a real and substantial threat of irreparable harm.
B. BALANCE OF EQUITIES The state of the balance between this harm and the injury that granting an
injunction may inflict on the defendants weighs clearly in favor of the plaintiff and her request for preliminary injunctive relief. If the defendants are ordered to give the plaintiff an application, her father can prepare the application on her behalf and submit it to ADHS for appropriate consideration. Such an injunction will not harm the defendants in any way, and will place the plaintiff on the road to receiving ACS services. To the extent the defendants may argue that budgetary considerations prevent them from filling the open "slots" under the ACS program, "no state may characterize its duty to comply with the requirements of an elective program such as Medicaid as constituting a hardship to its citizens." Illinois Hosp. Ass'n v. Illinois Dept. of Public Aid, 576 F. Supp. 360, 371 (N.D. Ill. 1983). As previously stated, participation in the Medicaid program is voluntary, but if a state chooses to participate, it must do so in accordance with federal statutes and regulations. Dalton, 60 F.3d at 498.
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Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 7 of 10
C. PROBABILITY OF SUCCESS ON THE MERITS The plaintiff has a strong probability of success on the merits. Count I and Count
II of her Complaint are based on 42 U.S.c. § 1396a(a)(8), which provides that a state Medicaid plan "must ... provide that all individuals wishing to make 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". The defendants, while acting under the color of state law, have violated this enforceable federal right by refusing to send an ACS enrollment application to the plaintiff, and by placing her on a "request list" for an indefinite period of time. Although the defendants have allowed the plaintiffs father to submit a Client's Choice form on behalf of his daughter, they have placed her on a "request list" for an indefinite period of time without determining if she is eligible for ACS services and entitled to one of the open "slots". Such conduct violates the plaintiffs right to an opportunity to apply for Medicaid services, and her right to receive Medicaid services with reasonable promptness, as guaranteed by 42 U.S.C. § 1396a(a)(8). See Doe v. Chiles, 136 F.3d 709 (lIth Cir. 1998).
Count III of the plaintiffs Complaint is based on 42 U.S.c. § 1396n(c)(2), which provides that when a state, such as Arkansas, participates in both the rCFIMR program and the HCBS program, it must inform eligible individuals about feasible alternatives for the appropriate level of care, and recipients must be allowed to choose to receive care under the ICF/MR program or the HCBS program. The defendants, while acting under the color of state law, have violated this enforceable federal right by depriving the plaintiff of her freedom to choose ACS services under 42 U.S.c. § 1396n(c)(2). Cramer v. Chiles, 33 F. Supp. 2d 1342, 1352 (S.D. Fla. 1999).
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Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 8 of 10
Count IV of the plaintiffs Complaint is based on 42 U.S.C. § 1396a(a)(3), which provides that a state Medicaid plan "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". The defendants, while acting under the color of state law, have violated this enforceable federal right by not providing the plaintiff with an opportunity for a fair hearing before ADHS after they refused to send her father an ACS enrollment application, and by placing her on a "request list" for an indefinite period of time. Although the ADHS Office Policy Manual provides a fair hearing with respect to "decisions regarding the eligibility of or receipt of services", there is no provision of that manual, or any other state law or regulation, that provides a fair hearing if ADHS refuses to provide an opportunity to apply for ACS services, or fails to act on a request for ACS services with reasonable promptness. The letter sent by ADHS to the plaintiffs father on January 8, 2003, in which the defendants notified him that his daughter was being placed on a "request list", does not make reference to any right the plaintiff has to a fair hearing if her father believes that ADHS has not given her an opportunity to apply for ACS services, or that ADHS has failed to consider her request with reasonable promptness. Because the defendants have failed to provide the plaintiff with a right to a fair hearing, they are violating her right to a fair hearing as guaranteed by 42 U.S.C. § 1396a(a)(8).
Count V is essentially identical to Count IV, but is based on the procedural due process component of the Fourteenth Amendment to the Constitution of the United States.
D. PUBLIC INTEREST
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Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 9 of 10
The public interest will be served by granting temporary injunctive relief in this case. Clearly, the public interest is served when state agencies like ADHS are enjoined from taking unsound, harmful, and illegal positions that adversely impact the health and welfare of the citizens of this State. The position taken by the defendants, i.e. their refusal to provide the plaintiff and other disabled individuals with applications for ACS services, is unsound, harmful, illegal, and contrary to the public interest. III. CONCLUSION
For these reasons, the plaintiffs Motion for Preliminary Injunctive Relief should be granted, and a preliminary injunction should be issued that requires the defendants to give the plaintiff an application for ACS services so that her tather can prepare and submit the application on her behalf; to process with reasonable promptness the application for ACS services to be submitted by the plaintiff; to issue a decision with reasonable promptness in response to the application for ACS services to be filed by the plaintiff; to promptly notifY the plaintiff of the decision made by ADHS with respect to her application for ACS services; to place the plaintiff in the ACS program with reasonable promptness if she subsequently is determined by ADHS to be eligible for ACS services; to provide the plaintiff with a fair hearing, consistent with federal constitutional principles of procedural due process, with respect to any adverse decision made by ADHS; and to notifY the plaintiff of her right to a fair hearing, and any rules issued by ADHS with respect to the filing and prosecution of appeals.
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Case 4:03-cv-00493-GTE Document 3 Filed 06/25/2003 Page 10 of 10
Respectfully submitted, TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARK G., Plaintiff ARMSTRONG ALLEN, PLLC 100 Morgan Keegan Drive Suite 100 Little Rock, AR 72202 (501) 280-0100 (SOl) 280-0 6 (facsimile) By:
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 •

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 1 of 14

IN THE UNITED STATES DISTRICT COUR~~ u!; ,

'I'T

EASTERN DISTRICT OF ARKANSAS ",'- EASTEr':', " .. ,,1, i .. , .:'CAS ""

WESTERN DIVISION

~!C.'

" - ......'! '- "

i _~ .. '

TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARKG.

.BJyA:M_ES_W._Mc_ CO_ RMA_CI~ <, CLERK

PLAINTIFF

DEe CLERK

VS.

CASE NO. 4:03CV00493 GTE

ARKANSAS DEPARTMENT OF HUMAN SERVICES, KURT KNICKREHM, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES, AND JAMES GREEN, PH.D., IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES DEFENDANTS

DEFENDANTS

BRIEF IN SUPPORT OF DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION I. Introduction
This case concerns the Developmental Disabilities Alternative Community Services Medicaid Waiver ("ACS waiver") administered by the Arkansas Department of Human Services ("ADHS"). Plaintiff, already a Medicaid recipient, seeks a preliminary injunction requiring ADHS to immediately accept her ACS waiver application, determine her eligibility for ACS waiver services, and, if she is eligible, provide ACS waiver services. She does not allege that the full array of Medicaid services falls short of meeting her health care needs. Nor does she allege what, if any, ACS waiver services she must have to avoid irreparable injury.

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 2 of 14
II. Preliminary Injunction Standard To be entitled to a preliminary injunction, the party seeking the injunction must establish each of the following four requirements:
(1) The threat of irreparable harm to the moving party; (2) The balance between the threat of irreparable harm and any injury that granting the injunction would inflict on the other parties; (3) The likelihood that the moving party will succeed on the merits; and (4) The impact that granting the preliminary injunction would have on the public interest.
Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981). The
decision to grant a preliminary injunction is discretionary with the district court and is an extraordinary remedy. As such, it should only be granted if the moving party (plaintiff) has clearly carried the burden of persuasion on all four Dataphase requirements. United Ind. Corp. v. Clorox Co., 140 F.3d 1175 (8th Cir. 1998). Simply put, plaintiff cannot establish a threat of irreparable harm before a decision on the merits is reached, nor can she demonstrate a likelihood of success on the merits.
III. The Medicaid Program Medicaid is an entitlement program administered by the states but jointly financed by the federal and state governments.
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The Medicaid program was created in 1965 and is designed to furnish medical assistance to persons "whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. § 1396. As the nation's largest means-tested health care financing program, its importance to the nation's health care system cannot be overstated.
Ashley County Med. Ctr. v. Thompson, 205 F. Supp.2d 1026, 1029 (E.D. Ark. 2002).
The Medicaid program is administered by the states under Medicaid state plans approved by the Secretary of the Department of Health and Human Services (HHS). Each state is required to establish a medical assistance plan (known as the "State Plan") which must describe eligibility standards, the scope of benefits, reimbursement methodologies and certain other details of that state's Medicaid program.
Ashley County Med. Ctr., 205 F. Supp. at 1030.
"Medicaid programs do not guarantee that each recipient will receive that level of
health care precisely tailored to his or her needs." Alexander v. Choate, 469 U.S. 207,
303 (1985).
IV. EPSDT
Under the Early and Periodic Diagnosis, Screening, and Treatment ("EPSDT")
Medicaid provisions, participating states must provide comprehensive benefits for
Medicaid eligible persons under age twenty-one.
[T]he State Plan must include the provision of EPSDT services as those services are defined in § 1396d (r). See §§ 1396a (a)(10)(A), 1396d (a)(4)(B); see also 1396a (a)(43). Section 1396d (r) lists in detail the screening services, vision services, dental services, and hearing services that the State Plan must expressly include, but with regard to treatment services, it states that EPSDT means "[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section 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).
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Pedialric Specially Care v. Arkansas Dep 'I ofHuman Servs., 293 F.3d 472, 480 (8th Cir. 2002).
V. The ACS Waiver ADHS created ACS services via a Medicaid waiver approved by the Secretary of Health and Human Services under the provisions of 42 U.S.c. § 1396n (c) (Section 1915 (c) of the Social Security Act). Section 1915 (c) permits State Medicaid Plans to: Include as "medical assistance" under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan. Waivers are not permanent. Initial waiver approval cannot exceed three years, and thereafter, waivers are limited to additional five-year periods. 42 U.S.C. § 1396n (c)(3). Waiver services must be cost neutral. See, 42 U.S.C. § 1396n (c)(2)(D) (average per capita waiver cost cannot exceed average per capita institutional cost). States must impose an upper limit on the number of persons serviced under the ACS waiver: The State must indicate the number of unduplicated beneficiaries to which it intends to provide waiver services.... The number will constitute a limit on the size of the waiver unless the Secretary [of the United States Department of Health and Human Services] approves a greater number of waiver participants in a waiver amendment. 42 C.F.R. § 441.303 (f)(6). This number "becomes the 'population limit' on the [waiver] services." Makin ex reI. Russell v. Hawaii, 114 F. Supp. 2d 1017,1028 (D. Hi. I999). 42
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• U.S.c. § 1396n (c)(10) requires at least 200 individuals be served. The ACS waiver is limited to 3,067 persons'. In addition to the comprehensive array of services defined as medical assistance in 42 V.S.c. § 1396d (a)(I)-(27), the ACS waiver provides for the following relevant serv.ices2: (I) Supportive Living Services: assistance with acquisition, retention, or improvement in skills related to activities of daily living, such as personal grooming and cleanliness, bed making and household chores, eating and the preparation of food, and the social and adaptive skills necessary to enable the individual to reside in a noninstitutional setting. Supportive living services payments are not made to family members or for routine care and supervision which would be expected to be provided by a family or group home provider. See, Exhibit A, pp. 42, 43. (2) Environmental accessibility adaptations: physical adaptations to the home such as ramps and grab bars. See, Exhibit A, p. 49. (3) Personal emergency response portable electronic systems. See, Exhibit A, p. 69. (4) Most consultation services described in Exhibit A on p. 71. (5) Fees for activities that compliment and reinforce community living. See, Exhibit A, p. 78.
I A copy of the ACS waiver is attached as exhibit "A." 2 The list excludes services such as prevocational employment services, supported employment services, and transitional expenses to move out of an institution or prevent the need to return to an institution.
5

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 6 of 14
(6) Some waiver coordination services, e.g., worker coordination, planning input into the plan of care, assuring timely submission of behavior reports, records review, and fiscal intermediary services.
Plaintiff has not alleged that she is in need of, or would be entitled to any of these ACS waiver services. Nor has plaintiff alleged that she will be irreparably harmed if she does not immediately receive these services at public expense.
The complaint acknowledges that there are a maximum number of "slots" that the Department of Health and Human Services has approved for the ACS waiver. See, complaint, ~~ 23,30, and 44. A total of3,067 slots for unduplicated individuals is approved. See, Exhibit A, p. 106. However, the allegations in the complaint regarding the number of vacant slots are incorrect. As of June 30, 2003, there were 2,665 unduplicated individuals receiving waiver services. Theoretically this leaves 402 slots available, but in practice, turnover would make it impossible to keep every slot filled every day. Plaintiff is number 2,255 on the waiting list.
VI. Plaintiff's Medicaid Coverage Plaintiffs financial eligibility for Medicaid normally would be determined by considering her family's income and resources. Using those tests plaintiff would not be Medicaid eligible. Medicaid is available to plaintiff because Arkansas sought and obtained approval for a Medicaid waiver, referred to by plaintiff as the TEFRA waiver, that allows ADHS to make plaintiff Medicaid eligible while disregarding her parents' income and resources. The waiver provides for a co-pay, the amount of which is based on parental income and determined by reference to a sliding scale. See, Exhibit B. Having become Medicaid eligible, plaintiff enjoys the full array of Medicaid care
6

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 7 of 14
furnished under EPSDT. In addition, plaintiff has private health care coverage and may look to her parents to provide needed care. As a result, it is unlikely·- and plaintiff has not alleged - that ACS waiver services are necessary for her to obtain any medically necessary care.
VII. Discussion (a) Lack of Irreparable Harm Plaintiff must prove that she will suffer irreparable harm before the trial on the merits if she does not receive ACS waiver services to which she has an enforceable entitlement. If ADHS eligibility procedures will cause plaintiff no injury during the interim between the filing of the motion for preliminary inj unction and the trial on the merits, then there is no basis to conclude that plaintiff will be irreparably harmed. There is no irreparable harm because there are no available waiver services to which plaintiff is entitled. This can be illustrated by assuming, for the sake of discussion, that if ADHS determined plaintiffs eligibility today, plaintiff: (I) would be eligible for the ACS waiver program; and (2) would qualify for one or more ACS waiver services that are not otherwise covered under EPSDT. Even if ADHS immediately fills every vacant ACS waiver slot, 1,852 other slots must become available before plaintiff can be served). That can happen in only two ways: (I) present recipients terminate their ACS waiver services; and (2) ACS waiver enrollees that are ahead of plaintiff on the enrollment list may ultimately be determined ineligible Thus, there is no available waiver slot, nor is it likely that a slot will become available anytime soon. As a result, plaintiff suffers no harm due to the status of her
) 2,254 persons ahead of plaintiff minus the 402 vacaot slots equals 1,852.
7

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 8 of 14
ACS waiver enrollment and eligibility determination, and certainly suffers no immediate or irreparable harm that must be remedied via preliminary injunction.
(b) Likelihood of Success on the Merits Plaintiff must establish standing in a case or controversy under Article III of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing has three elements. First, plaintiff must sustain an invasion of a legally protected interest which is (a) concrete and particularized; (b) actual or imminent as opposed to conjectural or hypothetical. Lujan, 504 U.S. at 560. Second, the injury must be caused by the defendant. ld. Third, it must be likely, not speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 561. Plaintiff must support the allegations necessary for standing with "competent proof." McNutt v. General Acceptance Corp., 298 U.S. 178, 189 (1936). Plaintiff brought her claims under 42 U.S.c. § 1983 to enforce Spending Clause legislation. Under its spending power, Congress may attach "conditions on the receipt of federal funds [requiring] compliance by the recipient with federal statutory and administrative directives." South Dakota v. Dole, 483 U.S. 203, 206 (1987) (quotation omitted). The Spending Clause does not authorize mandatory legislation. Rather, compliance with Spending Clause legislation is voluntary. "States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits offederal funding." Pennhurst State School and Hasp. v. Halderman, 451 U.S. 1, II (1981). Plaintiffs standing hinges on the assertion that certain Medicaid provisions confer legally enforceable rights upon her. Plaintifflacks standing if the statutes she relie, upon do not confer enforceable rights. Similarly, plaintiffs standing is prudentially limited if
8

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 9 of 14
her alleged injury falls outside the "zone of interests" protected by the statute. Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 39 n. 19 (1976).
The test to determine if a federal statute creates enforceable rights has evolved
from Golden State Transit Corp. v. City 0/Los Angeles, 493 U.S. 103 (1989) through
Blessing v. Freestone, 520 U.S. 329 (1997) to Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). Gonzaga emphasizes that Congress must express a clear and unambiguous intent to confer individual rights. 536 U.S. at 288. To create enforceable individual rights the statute "must be 'phrased in tenns of the persons benefited.'" 536 U.S. at 284, quoting Cannon v. Univ. o/Chicago, 441 U.S. 677, 692 n. 13 (1979). Statutory provisions that focus on "the aggregate services provided by the State, rather than 'the needs of any particular person'" confer no individualized enforceable rights. 536 U.S. at 288, quoting Blessing, 520 U.S. at 343.
Accordingly, plaintiff must establish that the Medicaid statute authorizing the ACS waiver: (I) establishes plaintiff s individual entitlement to waiver services; and (2) focuses on the needs of plaintiff rather than the aggregate services provided by the state. The first issue - entitlement to waiver services - is easily disposed of because Medicaid explicitly authorizes an upper limit on the number of participants in waiver programs. See, Makin ex rei Russell v. Hawaii, 114 F.Supp. 2d 1017, 1028 (D. Haw. 1999):
In sum, while the Medicaid Act requires a state to offer feasible alternatives available under the waiver to all eligible individuals, the HCBS-MR program is not "available" under the statute when the slots available under the "popUlation limit" have been filled. Thus, the State of Hawaii is in compliance with the Medicaid statute even if there are over 750 "eligible" individuals on the HCBS-MR wait list so long as there is other appropriate treatment available to them under the Medicaid program. The HCFA Secretary approved the State's "popUlation limit" for the HCBS-MR program and nothing in the statute requires the State to provide HCBS-MR services beyond the limit.
9

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 10 of 14
As detennined above, Defendants did not violate Section 1396a (a)(8) of the Medicaid Act by failing to provide all Plaintiffs with HCBSMR services because the State is only required, under the provision, to provide available "medical assistance" with reasonable promptness. Further, the HCBS-MR services are not "available" if the "population limits" are reached when the eligible individual requests them.
Plaintiffs attempt to use case law to show that lack of resources and funds are not an excuse for failing to provide statutory entitlements. The court agrees with this since a state must comply with federal conditions on federal funds. However, as Defendants correctly argue, Plaintiffs have no entitlement to the HCBS-MR services under the statute unless there are open slots within the "population limits" that can be filled. Clearly, in this case, there are not enough slots available to provide HCBS-MR services to the entire Plaintiffs' class.
Makin ex reI. Russell v. Hawaii, 114 F. Supp. 2d at 1030.
Defendants have not violated the "reasonable promptness" provision by maintaining wait lists for HCBS-MR programs. Under the statute, the State is only required to provide services for the number of individuals approved by the HCFA, or the State legislature. This is particularly true since there is space available in the ICF/MR facilities that provides Plaintiffs with possible alternative treatment.
Makin ex reI. Russell v. Hawaii, 114 F. Supp. 2d at 1031.
Given the upper limit on the number of persons to be served, it is impossible to
conclude either that the statute authorizing the waiver was intended to confer individual
rights on the plaintiff, or that plaintiff's interest in receiving waiver services fall within
the zone of protection of the Medicaid statute. A population limit is not a right conferred
on an individual: it is a limitation on the aggregate services provided by the state.
Because the provision concerns aggregate services, it fits neatly within the Gonzaga
holding that such provisions confer no individualized enforceable rights. Gonzaga Univ.
v. Doe, 536 U.S. at 288.
The conclusion that Congress conferred no individual rights by pennitting
waivers is further bolstered by the fact that all waivers are of finite duration. 42 U.S.C. §
10

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 11 of 14
1396n (c)(3). The automatic termination of a waiver - subject to extension - cannot be reconciled with the contention that the waiver was intended to create an enforceable federal right in the beneficiaries.
Furthermore, "Section 1983 only provides a remedy for violations of rights expressly secured by federal statutes or the Constitution. Kurtz v. City ofShrewsbury, 245 FJd 753, 758 (8th Cir. 2001). There is no constitutional right to Medicaid services. Maher v. Roe, 432 U.S. 464 (1977). Federal regulations cannot create enforceable Medicaid rights. Harris v. James, 127 F.3d 993 (11th Cir. 1997). Therefore, any enforceable Medicaid mandate must appear in the Medicaid statute.
ACS waiver services were not created by Congress, or even by federal regulation, but instead by the state's waiver document. ACS waiver services are not mandated by the Medicaid statute, but instead are a permitted exception to the Medicaid statute. It is therefore impossible to construe ACS waiver services as a federal right, let alone the sort of clear and unmistakable right required by Gonzaga. It necessarily follows that plaintiff has no enforceable entitlement to ACS waiver services.
In any case, an eligibility determination made today would not benefit the plaintiff because that determination will not establish plaintiffs eligibility at the time an ACS waiver slot becomes available. A new eligibility determination will be required. In the meantime, plaintiff will not be prejudiced because she submitted an ACS waiver enrollment that guarantees her consideration for ACS waiver services without regard to her present eligibility status. In other words, plaintiff will be no better off if determined eligible today, but could be worse off if determined ineligible and deprived of her position on the ACS waiver enrollment list.
II

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 12 of 14
Finally, given that there are 2,254 persons awaiting 402 vacant ACS waiver slots, there is no basis to conclude that the alleged injury can be redressed by a favorable decision unless the Court orders that plaintiff be placed in line ahead of other persons similarly situated. Similarly, a preliminary injunction will not redress plaintiffs alleged injury because plaintiffs eligibility status and receipt of ACS waiver services must be contemporaneous.
Conclusion For the foregoing reasons, defendants respectfully ask that the motion for preliminary injunction be denied.
Respectfully submitted, MIKE BEEBE Attorney General
By: / /~-<4 ~ L/ - /J . {;:f
MARK A. HAGEMEIER No. 94127 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201-2610 (501) 682-3643 Counsel for Defendants
By:
12

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 13 of 14 CERTIFICATE OF SERVICE
I, Breck Hopkins, do hereby certify that a copy of the above and foregoing Brief in Support of Defendants' Response to Motion for Preliminary Injunctive Relief was served upon Martin W. Bowen, Attorney at Law, 100 Morgan Keegan Drive, Suite 100, Little Rock, AR 72202, by placing a true and correct copy in the U. S. Mail, with sufficient postage, this "7 day of July, 2003.
Breck Hopkins
13

Case 4:03-cv-00493-GTE Document 5 Filed 07/07/2003 Page 14 of 14
UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
Exhibits Attached
to Original
Document in Courts's Case File

 
 Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 1 of 13

IN THE UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

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TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARKG.
VS.
ARKANSAS DEPARTMENT OF HUMAN SERVICES, KURT KNICKREHM, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES, AND JAMES GREEN, PH.D., IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES

PLAINTIFF
4 - 0 3 - C V - 0 04 9 3GlE
CASE NO. - - - - -
DEFENDANTS

COMPLAINT

The plaintiff, Tessa G., a minor, by and through her father and natural guardian, Mark G., respectfully comes before this Court, by and through his attorneys, Armstrong Allen, PLLC, and for her Complaint against the defendants, Arkansas Department of Human Services, Kurt Knickrehm, in his individual capacity and in his official capacity as Director of the Arkansas Department of Human Services, and James Green, Ph.D., in his individual capacity and in his official capacity as Director of the Division of Developmental Disabilities Services of the Arkansas Department of Human Services, states:

STATEMENT OF JURISDICTION AND VENUE

bDOCUMENT NUMBER I JAMES W. M,CORMACK cu=_\;{ 0;::: (>J0RT

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 2 of 13
1. The plaintiff and her father are residents of Pulaski County, Arkansas. 2. Defendant Arkansas Department of Human Services ("ADHS") is an agency of the State of Arkansas. 3. Detendant Kurt Knickrehm is the Director of ADHS, and is a resident of Pulaski County, Arkansas. 4. Defendant James Green, Ph.D. is the Director of the Division of Developmental Disabilities Services ("DDS") of ADHS, and based on information and reasonable belief is a resident of Pulaski County, Arkansas. 5. The plaintiff seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, and contends that the defendants have violated, and continue to violate, her rights under 42 U.S.C. § 1396a(a)(8), 42 U.S.C. § 1396n(c)(2), 42 US.C. § 1396a(a)(3), and the procedural due process component of the Fourteenth Amendment to the Constitution of the United States. 6. The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. 7. The Court has civil rights jurisdiction pursuant to 28 U.S.C. § 1343. 8. The Court has venue pursuant to 28 U.S.C. § 1391.
FACTS PRESENTED
9. Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq., commonly referred to as the Medicaid Act, is a joint federal and state program designed to provide medical assistance to qualified persons.
10. Under the Medicaid Act, if a state agrees to establish a Medicaid plan that satisfies the requirements of Title XIX, the federal government will pay a specified percentage of
2

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 3 of 13
the total amount expended as "medical assistance" under the plan. 11. Some Medicaid services are mandatory and must be provided under the plan, and
other services are optional. 12. Participation in the Medicaid program is voluntary, but if a state chooses to
participate, it must do so in accordance with federal statutes and regulations. 13. The federal Department of Health and Human Services is charged with
administration of the Medicaid program, and has delegated much of its responsibility to Centers for Medicare & Medicaid Services ("CMS").
14. Arkansas participates in the Medicaid program, and ADHS is the state agency charged with administration of the Medicaid program in Arkansas.
15. Among the optional services available to states under the Medicaid Act are intennediate care facility services for mentally retarded or developmentally disabled individuals provided in an intennediate care facility for the mentally retarded ("ICF/MR program").
16. In addition, as an alternative to providing services in an institution under the ICFIMR program, the Medicaid Act gives states the option of providing horne and communitybased services for mentally retarded and developmentally disabled individuals ("HCBS program").
17. ADHS has chosen to provide services under the ICF/MR progran1, and an ICF/MR program is included in the Arkansas State Medicaid Plan ("State Plan").
18. ADHS has also chosen to provide services under the HCBS program, and an HCBS program is included in the State Plan.
19. The HCBS program in Arkansas is called the Alternative Community Services ,
J

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 4 of 13
Medicaid Waiver Program ("the ACS program") and is administered by DDS. 20. In its current form, the ACS program provides the full range of Medicaid benefits
available under the Stale Plan. 21. In addition, the ACS program provides case management services, consultation
services, crisis abatement respite care services, integrated support services, physical adaptation/adaptive aids, specialized medical supplies, and supported employment services.
22. Under the ACS program approved by CMS, ADHS has agreed to provide ACS services to 3,598 unduplicated recipients in state fiscal year 2002/2003, and the same number of "slots" for state fiscal year 200312004.
23. As of May 12,2003, the defendants have filled only 2,631 of the 3,598 "slots" available in state fiscal year 2002/2003, and the remaining 967 "slots" have not been filled.
24. The Arkansas legislature has not placed any restriction on the filling ofthese "slots" by ADHS.
25. The plaintiff is a five-year-old girl with Down syndrome, and was born with congenital heart defects that have required surgery. She cannot speak or recognize dangers, resulting in a need for constant supervision. The plaintiff requires supplemental feeding through a gastrostomy tube in order to meet her nutritional needs, and has other developmental and physical disabilities resulting from her Down syndrome.
26. The plaintiffs father would like to enroll the plaintiff in the ACS program, and called ADHS in November of2002 and requested an ACS enrollment application.
27. ADHS would not provide the plaintiff or her father with an ACS enrollment application, but told the plaintiffs father that he could submit a Client's Choice form in which he
4

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 5 of 13
could designate whether he was interested in obtaining services for his daughter under the ACS program or ICF/MR program.
28. ADHS sent a Client's Choice form to the plaintiff's father, which he prepared on her behalf and sent back to ADHS on November 22, 2002.
29. On January 8, 2003, ADHS wrote a letter to the plaintiff's father in which it acknowledged that it had received his Client's Choice form, and that his daughter "has been added to the Request List and currently is number 2285 on the waiver request list."
30. ADHS refuses to send an ACS emollment application to the plaintiff or her fatber, and has merely placed the plaintiff on a "request list" for an indefinite period of time despite the fact that there are nearly 1000 unfilled "slots" under the ACS program.
31. Based on information and reasonable belief, ADHS has taken the same action in response to requests for ACS services made by thousands of other disabled individuals.
COUNT ONE: VIOLATION OF "OPPORTUNITY TO APPLY" PROVISION
32. Pursuant to 42 U.S.c. § 1396a(a)(8), the State Plan "must ... provide that all individuals wishing to make 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".
33. The defendants, while acting under the color of state law, have violated this enforceable federal right by refusing to send an ACS emollment application to the plaintiff, and by placing her on a "request list" for an indefinite period of time.
34. Although the defendants have allowed the plaintiffs father to submit a Client's 5

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 6 of 13
Choice form on behalf of the plaintiff, they have placed her on a "request list" for an indefinite period of time without determining if she is eligible for ACS services and entitled to one of the open "slots".
35. Under 42 U.S.C. § 1396a(a)(8), the plaintiff has a right to receive an ACS enrollment application from ADHS so that she can, in turn, submit the application to ADHS for appropriate consideration.
36. The defendants have violated this right by refusing to provide an ACS enrollment application to the plaintiff, by placing her on a "request list" for an indefinite period of time without determining ifshe is eligible for ACS services and entitled to one of the open "slots", and by otherwise failing to provide her with a meaningful opportunity to apply for ACS services.
COUNT TWO: VIOLATION OF "REASONABLE PROMPTNESS" PROVISION
37. As stated above, 42 U.S.C. § 1396a(a)(8) provides that the State Plan "must ... provide that all individuals wishing to make 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".
38. The defendants, while acting under the color of state law, have violated this enforceable federal right by refusing to send an ACS enrollment application to the plaintiff, and by placing her on a "request list" for an indefinite period of time.
39. Although the defendants have allowed the plaintiff's father to submit a Client's Choice form on behalf of the plaintiff, they have placed her on a "request list" for an indefinite period of time without determining if she is eligible for ACS services and entitled to one of the
6

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 7 of 13
open "slots". 40. Under 42 U.S.c. § 1396a(a)(8), the plaintiff has the right to receive an ACS
emollment application from ADHS, to submit the application to ADHS, and to have ADHS consider her application with reasonable promptness.
41. The defendants have violated these rights by refusing to provide an ACS emollment application to the plaintiff, by placing the plaintiff on a "request list" for an indefinite period of time without determining if she is eligible for ACS services and entitled to one of the open "slots", and by otherwise failing to provide ACS services to the plaintiff with reasonable promptness.
COUNT THREE: VIOLATION OF "FREEDOM OF CHOICE" PROVISION
42. Pursuant to 42 U.S.c. § 1396n(c)(2), when a state, such as Arkansas, participates in both the ICF/MR program and the HCBS program, it must inform eligible individuals about feasible alternatives for the appropriate level of care, and recipients must be allowed to choose to receive care under the ICFIMR program or the HCBS program.
43. The defendants, while acting under the color of state law, have violated this enforceable federal right by refusing to send an ACS emollment application to the plaintiff, and by placing her on a "request list" for an indefinite period of time.
44. Although the defendants have allowed the plaintiffs father to submit a Client's Choice form on behalf of the plaintiff, they have placed her on a "request list" for an indefinite period of time without determining if she is eligible for ACS services and entitled to one of the open "slots".
7

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 8 of 13
45. Under 42 U.S.c. § 1396n(c)(2), the plaintiff has the right to choose between services under the ICF/MR program and services under the HCBS program.
46. The defendants have violated this right by failing to provide an ACS enrollment application to the plaintiff, by placing her on a "request list" for an indefinite period of time without determining if she is eligible for ACS services and entitled to one of the open "slots", and by otherwise depriving her ofthe freedom to choose between services under the ICF/MR program or HCBS program.
COUNT FOUR: VIOLATION OF "FAIR HEARING" PROVISION
47. Pursuant to 42 U.S.c. § 1396a(a)(3), the State Plan "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".
48. The defendants, while acting under the color of state law, have violated this enforceable federal right by not providing the plaintiff with an opportunity for a fair hearing before ADHS after they refused to send her father an ACS enrollment application, and by placing her on a "request list" for an indefinite period of time.
49. Although the ADHS Office Policy Manual provides a fair hearing with respect to "decisions regarding the eligibility of or receipt of services", there is no provision of that manual, or any other state law or regulation, that provides a fair hearing if ADHS refuses to provide an opportunity to apply for ACS services, or fails to act on a request for ACS services with reasonable promptness.
50. The letter sent by ADHS to the plaintiffs father on January 8, 2003, in which the 8

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 9 of 13
defendants notified him that the plaintiff was being placed on a "request list", does not make reference to any right she has to a fair hearing if her father believes that ADHS has not given her an opportunity to apply for ACS services, or that ADHS has failed to consider her request with reasonable promptness.
51. Under 42 U.S.c. § I 396a(a)(3), the plaintiff has a right to a fair hearing ifher father believes that ADHS has failed to give her an opportunity to apply for ACS services, or that ADHS has failed to consider her request with reasonable promptness.
52. The defendants have violated this right by failing to provide a fair hearing to the plaintiff after they refused to send her an ACS enrollment application, and placing her on a "request list" for an indefinite period of time.
COUNT FIVE: VIOLATION OF PROCEDURAL DUE PROCESS
53. Under the procedural due process component of the Fourteenth Amendment to the Constitution of the United States, the plaintiff is entitled to notice and an opportunity for a fair hearing with respect to her request for ACS services.
54. The defendants, while acting under the color of state law, have deprived the plaintiff of her federal constitutional right to procedural due process by not providing her with an opportunity for a fair hearing after they refused to send her an ACS enrollment application, and placing her on a "request list" for an indefinite period of time.
55. Although the ADHS Office Policy Manual provides a fair hearing with respect to "decisions regarding the eligibility of or receipt of services", there is no provision of that manual, or any other state law or regulation, that provides a fair hearing if ADHS refuses to provide an
9

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 10 of 13
opportunity to apply for ACS services, or fails to act on a request for ACS services with reasonable promptness.
56. The letter sent by ADHS to the plaintiffs father on January 8,2003, in which the defendants notified him that his daughter was being placed on a "request list", does not make reference to any right she has to a fair hearing if her father believes that ADHS has not given her an opportunity to apply for ACS services, or that ADHS has failed to consider her request with reasonable promptness.
57. Under the procedural due process component of the Fuurteenth Amendment to the Constitution of the United States, the plaintiff has a right to a fair hearing if her father believes that ADHS has failed to give her an opportunity to apply for ACS services, or that ADHS has failed to consider her request with reasonable promptness.
58. The defendants have violated this right by failing to provide a fair hearing to the plaintiff after they refused to send her an ACS emollment application, and placing her on a "request list" for an indefinite period oftime.
JURY DEMAND
59. The plaintiff hereby demands a jury trial with respect to all issues of fact, triable by jury, which may arise herein.
WHEREFORE, the plaintiff, Tessa G., a minor, by and through her father and natural guardian, Mark G., prays for the following relief:
a. That the Court determine that the defendants have violated, and continue to violate, the plaintiffs rights under 42 U.S.c. § 1396a(a)(8), 42 U.S.C. § 1396n(c)(2), 42 U.S.c. §
10

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 11 of 13

I 396a(a)(3), and the procedural due process component of the Fourteenth Amendment to the Constitution of the United States, as alleged herein;

b. That the Court issue an injunction that requires the defendants to give the plaintiff

an application for ACS services so that her father can prepare and submit the application on her behalf;

c. That the Court issue an injunction that requires the defendants to process with

reasonable promptness the application for ACS services to be submitted by the plaintiff;

d.

That the Court issue an injunction that requires the defendants to issue a decision

with reasonable promptness in response to the application for ACS services to be filed by the plaintiff;

e. That the Court issue an injunction that requires the defendants to promptly notify

the plaintiff of the decision made by ADHS with respect to her application for ACS services;

f.

That the Court issue an injunction that requires the defendants to place the

plaintiff in the ACS program with reasonable promptness if she subsequently is determined by

ADHS to be eligible for ACS services;

g. That the Court issue an injunction that requires the defendants to provide the

plaintiff with a fair hearing, consistent with federal constitutional principles of procedural due

process, with respect to any adverse decision made by ADHS;

h. That the Court issue an injunction that requires the defendants to notify the

plaintiff of her right to a fair hearing, and any rules issued by ADHS with respect to the filing

and prosecution of appeals;

l.

That the Court award the plaintiff and her father their costs herein expended;

11

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 12 of 13

J.

That the Court award the plaintiff and her father their reasonable attorney fees

pursuant to 42 U.S.C. § 1988; and

k. That the Court award the plaintiff and her father all other relief to which they may

be entitled.

12

Case 4:03-cv-00493-GTE Document 1 Filed 06/25/2003 Page 13 of 13
Respectfully submitted, TESSA G., A MINOR BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARK G., Plaintiff ARMSTRONG ALLEN, PLLc 100 Morgan Keegan Drive Suite 100 Little Rock, AR 72202 (501) 280-0100 (501) 280-01 (facsi· e) By:
13

 
 Case 4:03-CV-193-GTE

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WESTERN DIVISION

""By:

TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARKG.

PLAINTIFF

VS.

CASE NO. 4:03CV00493 GTE

ARKANSAS DEPARTMENT OF HUMAN SERVICES, KURT KNICKREHM, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES, AND JAMES GREEN, PH.D., IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES

DEFENDANTS

DEFENDANTS' SURREPLY TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Arkansas first obtained approval for a pilot home and community based Medicaid waiver for developmentally disabled individuals ("DD waiver") in 1989. That pilot project, which was limited to ten counties, had a cap of 300 recipients. In 1992 the state requested and received federal permission to put the DD waiver into effect statewide and expand the cap to 472. Subsequent expansions increased the cap to 564, 623, and then to 600. As the economy and state funding improved in the mid 1990's, the cap increased dramatically, doubling in 1995. Additional expansions occurred each year, and by 1999 there were 2,404 slots. As of July 1,2003, the cap was 3,598 1 and 2,644 individuals were

1 Counsel apologize for errors in the numbers previously supplied.

• Case 4:03-cv-00493-GTE

Document 9

•Filed 08107/2003

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enrol1ed as DD waiver service recipients. Also as of July 1,2003, plaintiff was number

2,252 on the DD waiver waiting list.

During the recent state budget deficits in which many Medicaid and other state

programs were frozen or cutback, the Department of Human Services and DD waiver

providers fought hard for the expanded funding necessary to fill all DD waiver slots.

That request is notable not only because it was made during difficult economic times, but

also because the DD waiver was the only Medicaid program for which such a request was

made. The Arkansas General Assembly responded by providing additional appropriation,

mostly in the second year of the biennium, for all 3,598 DD waiver slots. Though the

additional appropriation is insufficient to fund all the vacant DD waiver slots at once, it

will support a realistic expansion pace allowing providers to hire new staff and take other

steps necessary to serve more people while retaining high quality of care.

As all existing DD waiver slots are filled over the course of the 2003-2005

biennium, experience suggests that it is reasonable to predict that seventy-five per cent

(75%) ofDD waiver applicants will be eligible for waiver services, and that one hundred

(100) persons will terminate waiver services each year. If these norms and the DD

waiver cap remain constant, then plaintiff should expect waiver services to become
available in 2013. (22522 minus 954 open slots3 = 1298. 1298 multiplied by 75% =

973.5.) Thus Tessa could expect to be 973 on the list on July 1,2005,873 on the list on

July 1, 2006, and so on. Of course, that is not a desirable outcome. Hopeful] y the

Arkansas General Assembly will fund additional cap expansions to enable the list to

move more quickly and to enable Tessa to be served much sooner.

2 Tessa's position on the waiting list. 3 All open slots, including presently occupied slots that are vacated, will be fiJled during the current biennium ending June 30, 2005.

2

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• Case 4:03-cv-00493-GTE

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•Filed 08107/2003

Page 3 of 8

This brief history of the DD waiver shows that the Department of Human

Services has remained committed to providing waiver services to the extent permitted by

funding, the cap, and other practical considerations. As a result, the waiver program has

grown much faster than the Medicaid program as a whole. For example, the number of

persons receiving waiver services increased from 1,565 to 2,644 from 1999 to present.

During that time, overall Medicaid expenditures increased by 166% while waiver

expenditures increased by approximately 254%. See attachment "A."

Turning to some specific arguments made by plaintiff, it is undisputed that 42

v.S.c. § 1396a (a)(8) declares that a state plan for medical assistance must: "provide that

all individuals wishing to make 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." Inherent in this statute is the assumption that all

services under the plan are always available. Waiver services in excess of the cap are not

available to plaintiff. Nevertheless, plaintiff was enrolled for DD waiver services and

treated as if she is eligible. She will remain on the enrollment list, will keep her place in

line for DD waiver services as they become available, and the Department of Human

Services will promptly determine her eligibility (i.e., within 90 days as required by 42

C.F.R. §435.911) based on the date that DD waiver services become available.

Ignoring that DD waiver services are not currently available to plaintiff, and

assuming that: (1) an eligibility detennination made today would establish that plaintiff is

eligible for DD waiver services; (2) plaintiff remains eligible when DD waiver services

become available; then an eligibility determination made today will have no positive

effect. In other words, if eligibility is determined today, that Medicaid determination will

3

r

• Case 4:03-cv-00493-GTE

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•Filed 08107/2003

Page 4 of 8

be useless when DD waiver services become available, because the determination will

not establish relevant eligibility: eligibility that is contemporaneous with service delivery.

If the DD waiver remains in place and plaintiff is eligible when services become

available, Medicaid will make reimbursement based on a timely and prompt eligibility

determination.

Though plaintiff can reap no benefit from an eligibility determination made today,

she can be harmed. That is because the only way for the Department of Human Services

to give effect to a determination of ineligibility is to remove plaintiff from DD waiver

enrollment, causing plaintiff to lose her place in line. Ifplaintiffs condition then

deteriorates she must reapply and be assigned a new place in line. The existing process

therefore treats potential waiver recipients favorably compared to the immediate and

binding eligibility determination sought by plaintiff

Because a positive eligibility determination that is made before senrices are

available has no effect, the detennination is a nullity and a futile act Only a negative

eligibility determination can have effect, albeit an effect adverse to the applicant

Therefore to the extent that any pre-service eligibility determination has consequences,

those consequences are undesirable. To avoid undesirable consequences the state would

have to discard all negative eligibility determinations. As a result, each eligibility

determination made before services are available is useless. Because it is axiomatic that

statutes should not be read to compel a futile or useless thing4, the Medicaid statute

should not be read to compel eligibility determinations for services that are not available.

Plaintiff has cited decisions holding that states must take applications, determine

eligibility, and provide services for available waiver positions, a point with which the

4 Flynn v. Commissioner ofInternal Revenue, 77 F.2d 180, 183 (5th eir. 1935).

4

•

• Case 4:03-cv-00493-GTE

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Filed 08107/2003
•

Page 5 of 8

state agrees. However, plaintiff has cited no authority to establish that applications must

be taken for services that are not available. The only authority relevant to that point is

Makin ex rei. Russell v. Hawaii, 114 F. Supp.2d 1017 (D. Ha. 1999), which holds that

Medicaid imposes no obligations to states to furnish waiver services in excess of the

waIver cap.

Plaintiff claims that she will be irreparably harmed by not receiving DD waiver

services before they become available. However, plaintiff is already eligible to receive

any medically necessary service that is defined as medical assistance in 42 U.S.c. §

1396d (a), including "medical care, or any other type of remedial care recognized under

State law, furnished by licensed practitioners within the scope of their practice as defined

by State law" and "other diagnostic, screening, preventive, and rehabilitative services,

including any medical or remedial services ... recommended by a physician or other

licensed practitioner of the healing arts within the scope of their practice under State law,

for the maximum reduction of physical or mental disability and restoration of an

individual to the best possible functional level." 42 U.S.c. § 1396d (a)(6) and 42 U.S.c.

§ 1396d (a)(l3), respectively. Plaintiff does not identify any particular DD waiver

service that does not meet these definitions but must be received to avoid irreparable

harm. However, plaintiff does state that DD waiver services will provide experiences that will enrich plaintiffs Iifes. Defendants cannot agree that the lack of taxpayer funded

enrichment experiences equates to irreparable harm, particularly when such enrichment is

not covered by private insurance plans. Furthermore, plaintiff sidesteps the fact that her

parents have the ability to purchase such services for her if they wish, thereby avoiding

any irreparable harm.
~ Reply to Response to Motion for Preliminary Injunctive Relief, p. 18.

5

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• Case 4:03-cv-00493-GTE

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•Filed 08107/2003

Page 6 of 8

Putting all this aside for the moment, the fact remains that there is no imminent

harm to plaintiff that can be redressed by a preliminary injunction unless plaintiff is

placed ahead of hundreds of persons who enrolled before she did. Plaintiff has not

explicitly requested that relief, which would cause manifest inequities for which there is

neither authority nor logic. Accordingly, defendants ask the Court to deny plaintiffs

motion for preliminary injunction.

Respectfully submitted,

By:
MARK A. HAG ~N0:94127
Assistant Attorney Gene al 323 Center Street, Suite 200 Little Rock, AR 72201-26lO (501) 682-3643 Counsel for Defendants
ARKANSAS DEPARTMENT OF HUMAN SERVICES
By: / '~ 7,:-~c?1~£"Y:7"f--
BRECK G. HOPKINS No. 77065 Chief Deputy Counsel P. O. Box 1437, Slot S260 Little Rock, AR 72203-1437 (501) 682-8934 Counsel for Defendants

6

• Case 4:03-cv-00493-GTE

Document 9

•Filed 08107/2003

Page 7 of 8

CERTIFICATE OF SERVICE
I, Breck Hopkins, do hereby certify that a copy of the above and foregoing Surreply to Plaintiffs Motion for Preliminary Injunction was served upon Martin W. Bowen, Attorney at Law, 100 Morgan Keegan Drive, Suite 100, Little Rock, AR 72202,
by placing a true and correct copy in the U. S. Mail, with sufficient postage, this 7
day of August, 2003.
~---.
Breck Hopkins

7

Case 4:03-cv-00493-GTE Document 9 Filed 08107/2003 Page 8 of 8

MEDICAID FACTSHEET DDS ACS WAIVER

DDS ACS Waiver Expenditures as % of Total HosplMed Exp: S FY99: 3_13% SFYOO: 3.79%

SFY01: 4.56%

SFY02: 4.32%

SFY03: 4.69%

Medicaid offers certain home arid community based services as an aiternative to institutionalization.

These services are available for a limited. nomber of eligible individuals with a developmental

.

. disabilitv Who WOlJldotherwise reauire an ICF/MRlevel of

.

The DDS ACS Waiver is administered by the Division ofDevelopmental Disabilities

Services provided uiJder this ptogram areas follows:

· Crisis Abatement Respite Care Services · Integrated Supports Services . · Supported Employment Services . Physical Adaptation Services · SpecializedMedical Supplies . Case Management Services • Consultation Services
CrisisCentetlhiterventic)n Services

Home and community based waiver services are available unly to inuividuals who are not inpatients (residents) of a hospital, nuning facility (NF), or intermediate cace facility for the mentally retarded (lCF/MR).
ACS Waiver Program services do not require Prior Authorization.

~~--------.----------------~--~----------~--~--------------------

EXPENDITURES.

RECIPIENTS

l

sao,ooo,OOO r::rr::'77:7;::::"'70'7I73'7"'7Z:T::::;:g~'0l j2,500,OOO,fllm

S10,000,000 ++~~~~4+~B~4~~2~
$80,000,000 tf5i?1+t0ftf8±::±:2~~frjt.HI!I§~
$SO,ooo,ooo 8~~~~:I:IIiI"4""'+
$4O,OOO,poo lli~::+;+~~;;;j*4

52,000,000,000 SI,500,UOO,OOO

$30,000,000

$1,000,000,000

~20.000, 000 ~4"':'::':;::],.;:8+--q:,,: $10,000:000 g4?~;,'{""'~"-"

5500,000,000

$0
SFY 99 SFYOO .. ,. ·,.-.·.-.·.. ·iDDS

J SFY 01 SFY02 SFYOJ ' ____ Total Medicaid

SFY 99 SFY 00 SFY 01 SFY02 SFYOJ

AVERAGE COST PER RECIPIENT
520,

SIO,OOD''''''''= SFY99

SFYOO

STY 01

SITD2

SFY03

Source: DSS Reports; Medicaid Statislical Reports: Medicaid Provider Mal1ual .......

II

Attachment A to Defendants' Surreply to Plaintiff's

Motion for Preliminary Injunction

Tessa G. v. ADHSj U.S.D.C. No. 4:03CV00493..Q!E

Department of Human Services Division of Medical Services

Reports and Analysis 07/2812003

 
 •

Case 4:03-cv-00493-GTE Document 10 Filed 08/14/03 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARKG.

VS.

CASE NO. 4:03-CV-00493 GTE

ARKANSAS DEPARTMENT OF HUMAN SERVICES, et al.

DEFENDANTS

ORDER OF DISMISSAL WITHOUT PREJUDICE During a hearing held today, August 14,2003, to consider Plaintiffs Motion for Preliminary Injunctive Relief, Defendants agreed to provide Plaintiff Tessa G. with an application for ACS Waiver services. This was the primary relief sought by Plaintiff in her motion for preliminary relief and her Complaint. The Court considers it premature to consider other issues, which mayor may not arise. Accordingly, IT IS THEREFORE ORDERED that Plaintiffs Motion for Preliminary Injuncti vc Relief (Docket No.2) be, and it is hereby, DISMISSED as MOOT, based on Defendants' voluntary action. The Court considers Plaintiffto be a prevailing party. IT IS FURTHER ORDERED that Plaintiffs Complaint be, and it is hereby, DISMISS[D
WITHOUT PREJUDICE.
J.:i--0: IT IS SO ORDERED this day-Of August, 2003 . .<J~~ci~-.
UNITED STATES DISTRICT CO\ IRT
"i j-;iS DOClY

AD 72A (Rev.8/82)

~'N . 1l;· \S -00

.--_ .
..

Case 4:03-cv-00493-GTE Document 10 Filed 08/14/03 Page 2 of 2

jh UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House
600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325

August 15, 2003

* * MAILING CERTIFICATE OF CLERK * *
Re: 4:03-cv-00493.
True and correct copies of the attached were mailed by the clerk to the following:
Mark Arnold Hagemeier, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
Breck G. Hopkins, Esq. Arkansas Department of Human Services Office of Chief Counsel 700 Main Street Post Office Box 1437 Little Rock, AR 72203-1437
Martin wayne Bowen, Esq. Armstrong Allen, PLLC Post Office Box 251310 Little Rock, AR 72225-1310
press, post, GTE

8/15/03

Date:

BY:

 
 Case 4:03-cv-00493-GTE Document 16 Filed 09/22/03 Page 1 of 6

•

F i l E D u.s. E~STERN

DISTRICT DISTRICT

COURT ARKANSAS

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARKG.

VS.

CASE NO. 4:03-CV-00493 GTE

ARKANSAS DEPARTMENT OF HUMAN SERVICES, et al.

DEFENDANTS

ORDER AWARDING ATTORNEY'S FEES & COSTS Before the Court is Plaintiff s Motion for Costs and Attorney's Fees. Counsel for Plaintiff seeks an award of costs in the amount of$564.18 and attorney's fees in the amount of $26,493.00. Defendants object to the requested costs and claim the attorney's fee request is excessive. For the reasons stated below, the Court awards attorney's fees in the amount of $16,500.00 and costs in the amount of$150.00.
ATTORNEY'S FEES Attached to Plaintiffs motion is a billing statement supporting the fee request of $26,493.00. Plaintiff was represented in this litigation by the Little Rock office of the law firm of Armstrong Allen, PLLC, a regional law firm which also has offices in Memphis and Jackson, Tennessee, and Jackson, Mississippi. The case file was opened in November of 2002. The lawsuit was filed in June 25, 2003. A motion for preliminary injunction was filed with the complaint. After substantial briefing on the issues presented, including a reply brief and a sur-

I

A072A (Rev.8182)

Case 4:03-cv-00493-GTE Document 16 Filed 09/22/03 Page 2 of 6
reply brief, the case came before the Court for a hearing on August 14,2003. During the hearing, Defendants agreed to provide Plaintiff Tessa G. with an application
for ACS Waiver services. As the Court noted during the hearing, this was the primary relief sought in the complaint and motion for preliminary relief For that reason, the Court considered Plaintiff a prevailing party.
Defendants contend that it is unreasonable to permit a recovery for 177 lawyer hours. For cause, Defendants point to the short lifespan of this case. Plaintiff counters that the case presented a complex and novel legal situation and that the time spent investigating the claim, researching the law, and preparing the case was necessary.
Despite the short duration of the case, it was not a simple case. Defendant raised in the briefing - and lost - substantial questions concerning standing and whether Plaintiff had enforceable rights under § 1983. Plaintiff filed a thirty-page reply brief in further support of her position.
Plaintiffs counsel, Martin Bowen, was very prepared during the hearing. He demonstrated a mastery of the applicable law and relevant facts and was able to answer questions put f0l1h by the Court. His advocacy greatly assisted the Court in understanding the issues presented and likely contributed to the Defendants' last minute determination not to challenge the case on the merits. Moreover, Plaintiff was prepared to present the testimony of Cynthia Alberding, an ACS specialist, as an expert witness. The Court appreciates Plaintiffs counsel thorough preparedness in presenting the case.
Some of the fee request consists of research done in anticipation of filing the lawsuit, which began some seven months prior to its filing. The Court cannot fault counsel for
2
A072A (Rev.B/B2)

Case 4:03-cv-00493-GTE Document 16 Filed 09/22/03 Page 3 of 6
,
conducting a full and thorough inquiry before filing a complaint. The Court further acknowledges that this area of the law is complex. Defendant's argument that the action hinged on "only 43 words found in 42 U.S.C. § 1396(a)(8)," greatly oversimplifies the issue, the effective presentation of which required an understanding of the complex :md bureaucratic interplay between the federal and state governments in the area of Medicaid services.
The Court is required to assess the reasonableness of the fee in relation to the result obtained. Although the Complaint sought broader relief than that which was ultimately obtained, Plaintiff s claims involved a common core of facts, making it difficult to view the lawsuit as a series of discrete claims. In such cases, the Supreme Court has instructed that, in awarding fees, the court "must focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). The Court is further guided by the principle that legal "services that were redundant, inefficient, or simply unnecessary are not compensable." Jenkins by Jenkins v. State ofMo., 127 F.3d 709, 716 (8th Cir. 1997).
Thus, the Court is called upon to determine the amount of attorney" s fees which would reasonably compensate Plaintiffs counsel for prevailing in this matter. The overall fee request does appear excessive in view of the narrowness of the issue ultimately decided. After considering the fee petition, supporting affidavits and all relevant factors, the Court finds $16,500.00 to be a reasonable attorney's fee in this case.
COSTS Plaintiff seeks the sum of $564.18. This sum reflects the cost of filing the Complaint ($150.00), long distance telephone charges, fax and copy charges, postage, and $74.50 in
3
A072A (Rev.8/82)

Case 4:03-cv-00493-GTE Document 16 Filed 09/22/03 Page 4 of 6
Westlaw research. Defendants object that this amount is "comprised entirely of noncompensable items included within office overhead." (Def.'s brief at p. 5).
The Court agrees that the filing fee of$150.00 is recoverable, but denies the other claimed costs. The Court does not award costs for long distance charges, faxes, postage or Westlaw research. With regard to the photocopying charges, those costs are denied without prejudice for the following reason.
Expenses for photocopies "necessarily obtained for use in the case" are recoverable by the prevailing party as costs. 28 U.S.C. § 1920 (2000). Not all copying costs are recoverable. See Brewer-Georgia, 985 F.Supp. 1485, 1485 (N.D. Ga. 1997)(Copies made fiJr "convenience, preparation, research, or for records of counsel are not recoverable. "); Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706, 722 (D. Ill. 1982) (Copying costs for correspondence and copies of cases are not taxable.). Moreover, the burden is on the party seeking reimbursement for photocopying costs to show that the photocopied items were necessary; if that party fails to meet the burden, the court should not award costs for those items. Tirapel/i v. Advanced Equities, Inc., 222 F.Supp.2d 1081, 1085 -1086 (N.D.Ill.,2002). Because the Court has no way to determine the purpose for which copies were made and whether they were in fact necessarily obtained for use in the case, this item of cost is denied without prejudice. Plaintiff may, at her election, resubmit for the Court's reconsideration this item of costs with additional explanation.
CONCLUSION Pursuant to 42 US.c. § 1988 for the reasons herein stated, IT IS THEREFORE ORDERED that Plaintiffs Motion for Costs and Attorney's Fees (Docket No. 11) be, and it is hereby, GRANTED IN PART AND DENIED IN PART. Plaintiff
4
A072A (Rev.8/82)

Case 4:03-cv-00493-GTE Document 16 Filed 09/22/03 Page 5 of 6 is hereby awarded costs in the amount of One Hundred Fifty Dollars ($150.00) and attorneys' fees in the amount of Sixteen Thousand Five Hundred Dollars ($16,500).
IT IS SO ORDERED this ~ay of September, 2003.
,~~~u~ .. L
UNITED STATES DISTRICT COURT
THIS DOCUMEtH ENTERED ON C-jOCKETSHEET iN COMPUANCF·,vITH RULE ~8 !\'.1 /0 79(a) FRCP-
ON Q·23..Q3 E3Y~~~__
5
A072A (Rev.8/82)

Case 4:03-cv-00493-GTE Document 16 Filed 09/22/03 Page 6 of 6
jh UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
September 23, 2003
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:03-cv-00493.
True and correct copies of the attached were mailed by the clerk to the following:
Mark Arnold Hagemeier, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 Breck G. Hopkins, Esq. Arkansas Department of Human Services Office of Chief Counsel 700 Main Street Post Office Box 1437 Little Rock, AR 72203-1437 Martin wayne Bowen, Esq. Armstron~ Allen, PLLC Post Off1ce Box 251310 Little Rock, AR 72225-1310
press, post, ALJ
9/23/03 Date:

 
 Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 1 of 30
'""! :""""""~

E/I,(;

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

J'

, ':.(

'------,--

TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARKG.

PLAINTIFF

VS,

CASE NO, 4:03CV00493 GTE

ARKANSAS DEPARTMENT OF HUMAN SERVICES, KURT KNICKREHM, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES, AND JAMES GREEN, PHD., IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES

DEFENDANTS

REPLY TO RESPONSE TO MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

The plaintiff requests an injunction that would require the defendants, among other things, to give her an application for ACS waiver services. In paragraph 26 of their Answer, the defendants admit that the plaintiff's father called ADHS in November of 2002 and requested an ACS enrollment application. Furthennore, the defendants admit in paragraph 27 of their Answer, and paragraph 3 oftheir Response to Motion for Preliminary Injunctive Relief, that they refuse to give the plaintiff an application,
To the extent the defendants state on page I of their Brief in Support of Defendants' Response to Plaintiff's Motion for Preliminary Injunction that the plaintiff seeks an injunction

Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 2 of 30

"requiring ADHS to immediately accept her ACS waiver application", they mischaracterize the

admitted facts of this case. The defendants simply refuse to give the plaintiff an ACS

application, and admit in paragraph 9 of their Answer that they have refused to give applications

to thousands of other disabled individuals.

In defense of this lawsuit, the defendants argue that: I) the plaintiff does not have

standing to bring this lawsuit; 2) the federal statutes relied on by the plaintiff do not confer rights

enforceable under 42 U.S.C. § 1983; 3) the plaintiff is not faced with a threat of irreparable harm

because there are no open slots under the ACS waiver; and 4) the plaintiff cannot prove a

likelihood of success on the merits. For the reasons set forth below, these arguments are without

merit, and the plaintiff should be granted the injunction requested in her Complaint.

1.

STANDING

Standing is the threshold question in every federal case. Federal jurisdiction is "defmed

and limited by Article III of the Constitution ... [and] is constitutionally restricted to 'cases' and

'controversies.'" Tarsney v. O'Keefe, 225 FJd 929, 934 (8th Cir. 1999) (citing Flast v. Cohen,

392 U.S. 83, 94 (1968)). A case or controversy exists only if a plaintiff "personally has suffered

some actual or threatened injury as a result of the putatively illegal conduct of the defendant."

Id. (citing Gladstone v. Village of Bellwood, 441 U.S. 91, 99 (1979)). If a plaintiff has not

suffered an injury, there is no standing and the court is without jurisdiction to consider the action.

Id. (citing Allen v. Wright, 468 U.S. 737, 750-66 (\984)). However, if a lawsuit challenges the

legality of government action or inaction, and the plaintiff is affected by such conduct, there is

ordinarily little question that the plaintiff has standing. Lujan v. Defenders of Wildlife, 504 U.S.

555,561 (1992).

2

Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 3 of 30
The plaintiff has standing to assert the claims set forth in her Complaint. According to her Complaint, the plaintiff alleges that the defendants refuse to give her an application for ACS services, that she has a right under the Medicaid Act to receive an application, that she has no way of getting into the ACS program without an application, and that the defendants refuse to provide a fair hearing with respect to her request for an application. By these allegations, the plaintiff clearly states a case or controversy under Article III. The plaintiff is directly affected by the steadfast refusal of the defendants to give her an applications for ACS services, and it would seem that a clearer case of standing could not be imagined. Indeed, a similar argument made by the Florida Department of Health and Rehabilitative Services was characterized as "frivolous" by the district court, and summarily rejected by the Eleventh Circuit in Doe v. Chiles, 136 F.3d 709, n.8 (lith Cir. 200 I). See also Lindsey v. Bruton, No. I :98cvI54-T, 1999 WL 33320971, at *2 (W.o. N.C. Jan. 20, 1999) (plaintiffs have standing to assert that North Carolina was using funds intended for home and community-based services for other purposes, and diverting those funds away from their child).
Contrary to what the defendants argue on page 8 of their brief, the issue of standing does not hinge on whether the plaintiff has enforceable statutory-rights under the Medicaid Act. Whether the plaintiff has statutory rights enforceable in a case filed pursuant to 42 U.S.c. § 1983 is an issue that relates to the legal merits of her case, and has nothing to do whether she has alleged a case or controversy and, therefore, has a right to sue under Article III. Standing is a jurisdictional issue, and is distinct from legal and factual issues that touch on the merits of a particular case. See Bruggeman v. Blagojevich, 324 F.3d 906, 909-10 (7th Cir. 2003) (equating standing with the legal or factual merits of a case is a "misunderstanding of standing").
3

Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 4 of 30
Even if the issue of standing hinged on the availability of rights enforceable under 42 U.S.C. § 1983, the defendants overlook the fact that the plaintiff has also filed a claim against them under the procedural due process component of the Fourteenth Amendment. Certainly, there can be no questioning the fact that claims arising under the Constitution are enforceable under 42 U.S.C. § 1983. Maine v. Thiboutot, 448 U.S. 1,4-6 (1980).
It should be noted that the issue of standing generally arises in Medicaid cases filed by Medicaid providers or other private organizations on behalf of disabled individuals. This case is filed by an individual, not a private organization, and the issue of "representational" standing does not arise. See Pediatric Specialty Care, Inc. v. Arkansas Department of Human Services, 293 F.3d 472 (8th Cir. 2002) (issue of "representational" standing not relevant when a Medicaid recipient is a plaintiff in the case).
The only other argument made by the defendants with respect to the issue of standing is that the Medicaid Act was enacted by Congress pursuant to the Spending Clause, and legislation enacted under the Spending Clause generally does not give rise to a right to sue for its enforcement. The problem with their argument is that it ignores Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), in which the Supreme Court held that the Medicaid Act explicitly confers a private right of enforcement in favor of Medicaid recipients and providers. Id. at 522-23. II. ENFORCEABILITY OF STATUTORY RIGHTS UNDER 42 U.S.c. § 1983
The next argument made by the defendants is that the Medicaid statutes relied on by the plaintiff in Counts One through Four of her Complaint are not enforceable under 42 U.S.C. § 1983. In Pediatric Specialty Care, the Eighth Circuit held that "[s]ection 1983 provides a federal
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Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 5 of 30
cause of action against anyone who, acting pursuant to state authority, violates any 'rights privileges or inununities secured by the Constitution and laws' of the United States." 293 F.3d at 477. "A remedy is available under § 1983 for violations of federal statutory and constitutional law." Id. (citing Thiboutot, 448 U.S. at 4). However, with respect to § 1983 claims based on a federal statute, "a plainciff must assert a violation of a federal right, not just a violation of a federal law." Id. (citing Blessing v. Freestone, 520 U.S. 329, 340 (1997)).
In determining whether a federal statute gives rise to a federal right, we must consider three factors: I) whether the provision in question is "intend[ed] to benefit" the plaintiff, that is, "couched in mandatory, rather than precatory, terms"; 2) whether the interest asserted by the plaintiff is not so "vague and amorphous" that it is beyond the competence of the judiciary to enforce; and 3) whether the provision in question creates a binding obligation on the governmental unit. Id. at 477-78. A federal right must be "unambiguously conferred" in order to support a cause of action under § 1983." Gonzaga University v. Doe, 536 U.S. 273, 283 (2002).
Like the statutes at issue in this case, the statutes at issue in Pediatric Specialty Care were Medicaid statutes as well. Applying the three-part test set forth in Blessing, the Eighth Circuit held that the language of 42 U.S.C. § 1396a(a) is "mandatory language", and that 42 U.S.C. §§ 1396a(a)(lO)(A), 1396a(a)(43), and 1396d(r) create a "binding obligation on ADHS to create a state plan that includes the provision ofEPSDT services as they are defined in § I 396d(r). " 293 F.3d at 478-79. The Eighth Circuit stated that "this obligation is not so ambiguous or amorphous that its enforcement strains judicial competence", and held that the plaintiffs had a federal right under those statutes that is enforceable in a § 1983 action. Id. at 479.
The Medicaid statutes relied on by the plaintiff are, in order of their appearance in the 5

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Complaint, 42 U.S.C. § I396a(a)(8), 42 U.S.c. § I396n(c)(2), and 42 U.S.C. § I396a(a)(3). There appears to be no reported case from the Eighth Circuit, or the District Court for either the Eastern or Western District of Arkansas, that considers whether these statutes create rights that are enforceable under § 1983. However, with the principles of Blessing in mind, and with guidance from Pediatric Specialty Care and cases from other jurisdictions in which the statutes cited by the plaintiff are involved, it is clear that each of these statutes is enforceable under § 1983.
A. THE "OPPORTUNITY TO APPLY" PROVISION OF 42 U.S.c. 1396a(a)(8) Count One of the plaintiff's Complaint is based on 42 U.S.c. § 1396a(a)(8), which
states that the State Medicaid Plan "must ... provide that all individuals wishing to make 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". The plaintiff claims that the defendants are violating the "opportunity to apply" provision of this statute by refusing to give her an application for ACS services.
Under the first prong of the Blessing test, we consider whether the language of this provision is couched in mandatory, rather than precatory, terms. "The language of § 1396a(a) is mandatory language." Pediatric Specialty Care, 293 F.3d at 478. Therefore, as a matter oflaw, the "opportunity to apply" provision is intended to benefit the plaintiff, and the first prong is satisfied.
Under the second prong of the Blessing test, we consider whether the interest asserted by the plaintiff is not so "vague and amorphous" that it is beyond the competence of the judiciary to enforce. The plaintiff submits that there is nothing vague or amorphous about her interest in
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receiving an application for ACS services. If anything, the "opportunity to apply" provision of § I396a(a)(8) stands for the proposition that the plaintiff has the right to receive an application. Clearly, it is impossible for the plaintiff to begin the process of applying for ACS services if the defendants will not give her an application. There is nothing vague or amorphous about the plaintiff's interest in receiving an application, or anything else that puts it beyond the competency ofthe judiciary to enforce.
Under the third prong of the Blessing test, we consider whether the provision creates a binding obligation on the defendants. The language of § 1396a(a)(8) states that a person "shall" have the opportunity to apply for services, and seems to be just as binding as the Medicaid statutes at issue in Pediatric Specialty Care. In addition, 42 C.F.R. § 435.906 states that the state agency "must afford an individual wishing to do so the opportunity to apply for Medicaid without delay." Read together, the language of 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.906 create a binding obligation on the defendants to give an ACS application to the plaintiff.
The defendants suggest on page 10 of their brief that they do not have a binding obligation to provide ACS services to the plaintiff because the ACS program is optional and of "finite duration". The plaintiff agrees that the program, like all waiver programs developed under 42 U.S.C. § 1396n(c), is an optional program that Arkansas has chosen to include in its State Medicaid Plan. However, even though the program is optional, the fact remains that the ACS program is part of the Plan, and that the defendants must comply with all federal statutes and regulations that apply to § 1396n(c) waiver programs as long as it remains. Smith v. Rasmussen, 249 F.3d 755,757 (8th Cir. 2001); Weaver v. Reagen, 886 F.2d 194,197 (8th Cir. 1989).
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There do not appear to be any cases that deal with the specific issue of whether the "opportunity to apply" provision creates an enforceable right under § 1983 when a state simply refuses to provide an application, perhaps because no state except Arkansas has taken such a harsh position. A similar case, however, was presented in McMillan v. McCrimon, 807 F. Supp. 475 (CD. Ill. 1992), in which the "opportunity to apply" provision was applied against the Illinois Department of Rehabilitation Services after it provided applications but refused to accept or process them. Like the defendants in the present case, Illinois argued that the plaintiffs were already receiving basic Medicaid benefits, that the plaintiffs had been given a full opportunity to apply for such benefits (but no opportunity to apply for the larger array of benefits available under the waiver), and that as a matter of law the provision does not apply to optional waiver services. rd. at 480. The district court rejected these arguments because the term "medical assistance" used in §1396a(a)(8) is defined as "payment of part or all of the costs of twenty-four listed types of services." rd. In addition, § 1396n(c) states that a State plan "may include as 'medical assistance' under such plan payment for all or part of the cost of home or communitybased services." rd. (citing 42 U.S.c. § 1396n(c)(l». Based on these provisions, the district court held that the "opportunity to aIJply" provision of §I396a(a)(8) "must extend beyond the initial application for Medicaid eligibility to services and benefits provided to Medicaid eligible persons." rd.
The situation in McMillan is not as oppressive as the situation presented here, where Arkansas refuses to even provide applications. Although distinguishable on its facts, McMillan stands for the proposition that §1396a(a)(8) provides a clear and unambiguous statement of the right to have a waiver application accepted and processed by the State, and that this right can be
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readily enforced. Although McMillan did not consider whether the "opportunity to apply" provision creates a right enforceable under § 1983, the fact that Illinois did not see fit to even raise the issue, and that the district court had no problem understanding and enforcing the provision, speaks volumes in favor of its enforceability under the circumstances of this case.
B. THE "REASONABLE PROMPTNESS" PROVISION OF 42 U.S.C. 1396a(a)(8) As stated above, 42 U.S.c. § I396a(a)(8) provides that the State Plan "must ...
provide that all individuals wishing to make 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". The plaintiff claims that the defendants are violating the "reasonable promptness" provision of this statute by refusing to give her an application for ACS services.
Under the first prong of the Blessing test, we consider whether the language of this provision is "couched in mandatory, rather than precatory, terms". "The language of § 1396a(a) is mandatory language." Pediatric Specialty Care, 293 F.3d at 478. Therefore, as a matter of law, the "reasonable promptness" provision is intended to benefit the plaintiff, and the first prong is satisfied.
Under the second prong of the Blessing test, we consider whether the interest asserted by the plaintiff is not so "vague and amorphous" that it is beyond the competence of the judiciary to enforce. The plaintiff submits that there is nothing vague or amorphous about her interest in being given an application for ACS services. If anything, the "reasonable promptness" provision of § 1396a(a)(8) stands for the proposition that the plaintiff has the right to receive an application so that she can fill it out and submit it to ADHS for processing. Clearly, it is impossible for the
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plaintiff to even begin the process of applying for ACS services without an application. There is nothing vague or amorphous about the plaintiffs interest in receiving an application, and nothing else that puts this interest beyond the competency of the judiciary to enforce.
Under the third prong of the Blessing test, we consider whether the provision creates a binding obligation on me defendants. The language of § I396a(a)(8) states that medical assistance "shall be furnished with reasonable promptness to all eligible individuals", and seems to be just as binding as the Medicaid statutes at issue in Pediatric Specialty Care.
A number of other jurisdictions have found that the "reasonable promptness" provision of § 1396a(a)(8) creates an enforceable right under § 1983. In Bryson v. Shumway. 308 F.3d 79 (J st Cir. 2002), the plaintiffs suffered from acquired brain disorders, and had the option to receive medical care for that condition under the New Hampshire Medicaid Plan. The plaintiffs preferred to receive those services in an HCBS waiver program established under § 1396n(c). The plaintiffs alleged that New Hampshire was violating the "reasonable promptness" provision of § I 396a(a)(8) by refusing to fill open slots under the program, and New Hampshire argued that the "reasonable promptness" provision is not enforceable under § 1983. Id. at 88.
After setting forth in comprehensive fashion a legal overview of the Medicaid Act and home and community-based waiver programs under § 1396n(c), the First Circuit got to the issue of whether the "reasonable promptness" provision creates an enforceable right. It discussed Blessing and its three-part test, and held that the provision, "on its face, does intend to benefit the plaintiffs." Id.
Section I 396a(a)(8) requires that state Medicaid plans provide that medical assistance "shall be furnished with reasonable promptness to all eligible individuals." This paragraph is a part of the litany of procedural and substantive protections which state
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Medicaid plans must provide, such as the opportunity for a hearing, and safeguards against the disclosure of private information. By its terms, it benefits "eligible individuals." Those patients who are on the waiting list and for whom slots are available are, we think, "eligible" under the statute such that they are entitled to reasonable promptness. The first prong of Blessing has been met. Second, the right conferred is not vague or amorphous. "A statute is not impermissibly vague simply because it requires judicial inquiry into 'reasonableness. '" Common law courts have reviewed actions for reasonableness since time immemorial. Finally, § I396a(a)(8) does unambiguously bind the states. The subsection mandates that state plans "must" provide that medical assistance "shall" be provided with reasonable promptness. These are not mere guidelines, but rather requirements which states must meet under the Medicaid system. ld. at 88-89 (internal citations omitted). The First Circuit concluded by stating that "there is a § 1983 cause of action arising from the 'reasonable promptness' provision of 42 U.S.c. § I396a(a)(8) under the state model waiver plan as approved." ld. at 89. The same result was reached in Doe v. Chiles, 136 F.3d 709 (11th Cir. 2001), in which a group of developmentally disabled individuals claimed that Florida was violating their right to "reasonable promptness" under § 1396a(a)(8) by causing unreasonable delays in the provision of waiver services. Addressing the first prong of the Blessing test, the Eleventh Circuit held that "[t]he plain language of the provision's reasonable promptness clause is clearly intended to benefit Medicaid-'eligible individuals' - such as the appellees in this case. Therefore, we do not hesitate in concluding that the clause meets the first factor." ld. at 715. With regard to the second prong of the Blessing test, the Eleventh Circuit held that enforcement of the provision would not strain judicial competence. "[S]ection 1396a(a)(8)'s requirement that 'assistance shall be furnished with reasonable promptness to all eligible individuals' presents a sufficiently specific and definite standard readily susceptible to judicial
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assessment ... Indeed, given the egregious facts of this case it is difficult for the appellants to argue that the appellees do not meet the second factor. We agree with the appellees' assertion that in this context, 'lilt is axiomatic that delays of 'several years' ... are far outside the realm of reasonableness.'" Id. at 717.
Finally with respect to the third prong of the Blessing test, the Eleventh Circuit held that the language of the provision "is undoubtedly cast in mandatory rather than precatory terms." Id. at 718. "In sum, we hold that the appellees have a federal right to reasonably prompt provision of assistance under section 1396a(a)(8) of the Medicaid Act, and that this right is enforceable under section 1983." Id. at 719.
A nwnber of district courts have also concluded that the "reasonable promptness" provision of § 1396a(a)(8) is enforceable under § 1983. See Martin v. Taft, 222 F. Supp. 2d 940, 978 (S.D. Ohio 2002); Antrican v. Buell, 158 F. Supp. 2d 663, 670-671 (E.D. N.C. 2001); Boudreau v. Ryan, No. 00-C-5392, 2001 WL 840583, at "9 (N.D. Ill. May 1,2001); Boulet v. Cellucci, 107 F. Supp. 2d 61, 71-72 (D. Mass. 2000); Lewis v. New Mexico Department of Health, 94 F. Supp. 2d 1217, 1233-1236 (D. N.M. 2000); Sobky v. Smoley, 855 F. Supp. 1123, 1146-1147 (E.D. CaL 1994). For the reasons stated in these cases, and in the other cases cited above, the plaintiff has an enforceable right to reasonable promptness under § 1396a(a)(8).
C. THE "FREEDOM OF CHOICE" PROVISION OF 42 U.S.C. 1396n(c) Under 42 U.S.c. § 1396n(c)(2), an HCBS waiver shall not be granted unless the
state provides assurances that:
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(A) necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services under the waiver and to assure financial accountability for funds expended with respect to such services;
(B) the State will provide, with respect to individuals who -
(i) are entitled to medical assistance for inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded under the State plan,
(ii) may require such services, and
(iii) may be eligible for such home or community-based care under such
waIver,
for an evaluation of the need for inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded;
(C) such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded;
:; * * :;
(E) the State will provide to the Secretary annually, consistent with a data collection plan designed by the Secretary, information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the State plan ind on the health and welfare of recipients.
Under this section, the Social Security Act "permits States to offer, under a waiver of statutory
requirements, an array of home and community-based services that an individual needs to avoid
institutionalization." 42 C.F.R. § 441.300. In addition, unless a state provides the following
satisfactory assurances to CMS, CMS will not grant a waiver under § 1396n and may terminate a
waiver already granted:
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(a) Health and Welfare - Assurance that necessary safeguards have been taken to protect the health and welfare of the recipients ofthe services. Those safeguards must include -

(1) Adequate standards for all types of providers that provide services under the waiver;

(2) Assurance that the standards of any State licensure or certification requirements are met for services or for individuals furnishing services that are provided under the waiver; and

(3)
* *• *

Assurance that all facilities covered by section 1616(e) of the Act, in which home and community-based services will be provided, are in compliance with applicable State standards that meet the requirements of 45 C.F.R. Part 1397 for board and care facilities.

(c) Evaluation of need - Assurance that the agency will provide for the following:

(1) Initial evaluation - An evaluation of the need for the level of care provided in a hospital, a NF, or an ICF/MR when there is a reasonable indication that a recipient might need the services in the near future (that is, a month or less) unless he or she receives home or community-based services. For purposes ofthis section, "evaluation" means a review of an individual recipient's condition to determine -

(i) If the recipient requires the level of care provided in a hospital as defined in § 440.10 of this subchapter, a NF as defined in section 1919(a) of the Act, or an ICF/MR as defined by § 440.150 of this subchapter; and

(ii) That the recipient, but for the provision of waiver services, would otherwise be institutionalized in such a facility.

(2) Periodic reevaluations - Reevaluations, at least annually, of each recipient receiving home or community-based services to determine if the recipient continues to need the level of care provided and would, but for the provision of waiver services, otherwise be institutionalized in one of the following institutions:

(i) A hospital;

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(ii) A NF; or (iii) An ICF/MR. (d) Alternatives - Assurance that when a recipient is determined to be likely to require the level of care provided in a hospital, NF, ICF, or ICF/MR, the recipient or his or her legal representative will be (1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home and community-based services.
* * * *
(f) Actual total expenditures - Assurance that the agency's actual total expenditures for home and community-based and other Medicaid services under the waiver and its claim for FFP in expenditures for the services provided to recipients under the waiver will not, in any year of the waiver period, exceed 100 percent of the amount that would be incurred by the State's Medicaid program for these individuals, absent the waiver, in (1) A hospital; (2) ANF; or (3) An ICFIMR.
42 C.F.R. § 441.302. Under these federal statutes and regulations, when a state, like Arkansas, participates in
both the ICFIMR program and the HCBS program, a disabled person has an enforceable right to be notified of feasible alternatives for the appropriate level of care, and freedom to choose to receive care lmder the ICFIMR program or HCBS program. In Wood v. Tompkins, 33 F.3d 600 (6th Cir. 1994), the Sixth Circuit held that 42 U.S.C. § 1396n(c)(2) and 42 C.F.R. § 441.302 "protect the health and welfare of home care Medicaid recipients" and "impose mandatory duties upon participating states". Id. at 608.
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[TJhere is nothing vague or amorphous about what the statute or corresponding regulations require of participating states. The duties set forth therein do not involve any fuzzy, undefined concepts like 'reasonable efforts.' Rather, these duties involve unambiguous directives that are well within the ability of the jUdiciary to enforce. Id. Based on its analysis, the Sixth Circuit specifically held that 42 U.S.C. §§ I 396n(c)(2)(A), (B), (C), and (E), and 42 C.F.R. §§ 441.302(a), (c), (d), and (f)(2) create rights that may be enforced under § 1983. Id. at 607-611. The Sixth Circuit seems to be the only federal appellate circuit that has considered this issue, and it appears that only one federal district court has as well. In Lindsey v. Bruton, No. I :98cv154-T, 1999 WL 33320971 (W.D. N.C. Jan. 20, 1999), the plaintiffs alleged that North Carolina was using funds intended for home and community-based services for other purposes, and diverting those funds away from their child, in violation of 42 U.S.c. § 1396n(c)(2) and 42 C.F.R. § 441.302. Applying the three-part test set forth in Blessing, and finding Wood highly persuasive, the district court held that 42 U.S.c. §§ 1396n(c)(2)(A), (B), (C), and (E), and 42 C.F.R. §§ 441.302(a), (c), (d), and (f)(2) create rights that may be enforced under § 1983. Id. at
*6. The result should be no different in this case.
D. THE "FAIR HEARING" PROVISION OF 42 U.S.c. 1396a(a)(3) Pursuant to 42 U.S.c. § 1396a(a)(3), the State Plan "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". The plaintiff claims that the defendants are violating this provision by not providing her with an opportunity for a fair hearing after they refused to send her an ACS enrollment application, and by placing her on a "request list" for an indefinite period of time.
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Under the first prong of the Blessing test, we consider whether the language of this provision is "couched in mandatory, rather than precatory, terms". "The language of § 1396a(a) is mandatory language." Pediatric Specialty Care, 293 F.3d at 478. Therefore, as a matter of law, the "fair hearing" provision is intended to benefit the plaintiff, and the first prong ofthe Blessing test is satisfieu.
Under the second prong of the Blessing test, we consider whether the interest asserted by the plaintiff is not so "vague and amorphous" that it is beyond the competence of the jUdiciary to enforce. The plaintiff submits that there is nothing vague or amorphous about her interest in being given a right to a fair hearing ifthe defendants refuse to give her an application for ACS services. The "fair hearing" provision provides the plaintiff a right to an appeal if the defendants deny her claim, or fail to consider her claim with reasonable promptness, and there is nothing vague or amorphous about this concept. The judiciary would certainly be competent to enforce the plaintiff's interest in receiving a fair hearing.
Under the third prong of the Blessing test, we consider whether the provision creates a binding obligation on the defendants. The language of § !396a(a)(3) states that the State plan "must provide" for granting an opportunity for a fair hearing to the plaintiff, and thus creates a binding obligation on the defendants. Certainly, the language of the "fair hearing" provision is mandatory language, and is just as binding as the Medicaid statutes at issue in Pediatric Specialty Care. See Meachem v. Wing. 77 F. Supp. 2d 431, 438 (S.D. N.Y. 1999) (the "fair hearing" provision is enforceable under § 1983). III. THREAT OF IRREPARABLE HARM
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Whether a preliminary injunction should issue involves consideration of: I) the threat of irreparable harm to the movant; 2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; 3) the probability that movant will succeed on the merits; and 4) the public interest. Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 112· (8th Cir. 1981). When applying these factors, "a court should flexibly weigh the case's particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene." United Industries Corp. v. Clorox, 140 F.3d 1175, 1179 (8th Cir. \998).
The defendants argue at page 5 of their brief that the plaintiff does not suffer a threat of irreparable harm arising out of their refusal to give her an application for ACS services. The plaintiff disagrees. Because the defendants refuse to give an application to the plaintiff, she has no way of applying for ACS services. If she cannot apply for ACS services, she has no way to get them. By foreclosing the plaintiffs ability to receive waiver services, the defendants have exposed her to a very real threat of physical and emotional harm that clearly satisfies her burden of proving a "threat of irreparable harm". Chu Drua Cha v. Noot, 696 F.2d 594, 599 (8th Cir. 1982) (irreparable harm established because loss of some medical care cannot be made up by the later entry ofa money judgment)(citing Turner v. Walsh, 435 F. Supp. 707, 711 (W.D. Mo. 1977) (termination or reduction of Medicaid benefits is sufficient irreparable injury to justify temporary restraining order), affd per curiam, 574 F.2d 456 (8th Cir. 1978) (approving the district court's opinion as "weJl-reasoned")). The defendants provide ACS services because they enrich the lives of those who need them, i.e. disabled individuals for whom these services were specifically designed, and there can be no serious question that depriving the plaintiff of her only
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opportunity to receive these services exposes her to a threat of irreparable harm. The defendants argue that the plaintiff cannot prove a threat of irreparable harm simply
because there are no open slots under the ACS program. The defendants are mistaken. On page 5 of their brief, the defendants tell the Court that there are only 3,067 total slots under the ACS program, but a letter obrained from the defendants under the Arkansas Freedom of Information Act shows that there are 3,598 total slots under the program at this time. See the letter attached hereto and marked as "Exhibit I ". This letter is dated August 6, 2002, and is from Dr. James Farris, Regional Administrator for the federal Department of Health & Human Services, Centers for Medicare & Medicaid Services, to Ray Hanley, former Director of the Division of Medical Services of the Arkansas Department of Human Services. In the letter, Dr. Farris states that he is pleased to inform Mr. Hanley that his request for an amendment to the Arkansas Home and Community-Based Services Waiver has been approved effective July 1, 2001. The letter states that 2,998 slots were approved for state fiscal year 200112002, and 3,598 slots were approved for state fiscal year 2002/2003. There are 3,598 slots approved for the current fiscal year.
The defendants state on page 6 of their brief that there were 2,665 "unduplicated individuals" receiving waiver services on June 30, 2003. Based on this number, there were 993 open slots at that time. According to other information provided by the defendants, there are approximately 2,596 people on the "request list" maintained by the defendants. These people are basically waiting in line to receive an ACS application. See the document attached hereto and marked as "Exhibit 2". The defendants refuse to give an application to any of these people, including the plaintiff, and refuse to determine whether any of them are entitled to one ofthe open slots.
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The defendants argue on page II of their briefthat the plaintiff does not face a threat of irreparable harm in this case because she is 2,285 on the "request list", and would not get a slot even if all open slots were filled overnight. Their argument is based on the idea that each person ahead of the plaintiff on the "request list" will be found eligible for ACS services. This may not be the case. According to the ACS Provider Manual, eligibility for waiver services "includes a determination of categorical eligibility, a level of care determination, a comprehensive diagnosis and evaluation, the development of a plan of care, a cost comparison to determine costeffectiveness, and notification of a choice between home and community-based services and institutional services." See § 227.000 of the DDS Alternative Community Services Waiver Program Manual attached hereto as part of "Exhibit 3". Without an application, there is no way for anyone to say that the plaintiff will not qualify for ACS services.
In addition, the argument made by the defendants is based on the presumoption that waiver slots are filled on a "fust come, first serve" basis. While this may very well be the case, the plaintiff understands that most states employ some form of triage procedure to prioritize services based on severity of need. Even if the defendants do not use such a procedure and fill slots on a "first come, first serve" basis, their argument belies the fact that there were 993 open slots under the ACS program less than a month ago.
The sad fact of the matter is that the defendants refuse to give ACS applications to the people on the "request list", and thereby subject each of them to a threat of irreparable harm by the sheer delay involved in waiting to see if they even qualify for ACS services. Why the defendants refuse to give these people applications is beyond the plaintiff, especially when there are nearly 1,000 open slots. Give the people applications, let them apply, determine their
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eligibility with reasonable promptness, fill the open slots, and let those who do not get a slot wait for one to come open or, if they choose, go to court and argue that more slots should be created. If the plaintiff is given an application but her claim of eligibility denied, she can appeal that decision to ADHS while she would otherwise be waiting for an open slot. The plaintiff should not have to wait in line for an application, only to find out months or years later, after she makes it to the top of the list and finally gets an application, that the defendants reject her claim for eligibility. Under this scenario, the plaintiff would lose the slot that came open for her, after years of waiting on the "request list", while she appeals the adverse eligibility decision to ADHS and, if necessary, through the state-court system under the Arkansas Administrative Procedure Act. If the defendants deny her claim for eligibility, the plaintiff can do all of this now and avoid the wait. Who knows, if ACS applications are provided and the open slots are filled, the plaintiff may get a slot and not have to wait at all.
The defendants suggest that the plaintiff cannot show a need for ACS services, and will not suffer irreparable harm if she does not get them, because she is eligible for Medicaid benefits under the TEFRA Demonstration Waiver, her parents have private insurance, and her parents are obligated under state law to provide her "necessities". These arguments are without merit. First, the plaintiff would gladly demonstrate her need for ACS services if the defendants would simply give her an application. Second, the TEFRA Demonstration Waiver is an optional program that could be cut tomorrow. Indeed, Arkansas Governor Mike Huckabee threatened to terminate the TEFRA program in January of 2002. Third, no person may qualify for ACS services unless they qualify for Medicaid in the first place. See § 228.000 of the DDS Alternative Community Services Waiver Program Manual attached hereto as part of "Exhibit 3". It is absurd to argue
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that a person does not need ACS services, and will not suffer irreparable harm if he or she does not receive them, simply because he or she qualifies for Medicaid. The defendants would not have filled the first slot under the waiver if that were the case. Fifth, the plaintiff's parents do not have private insurance that will pay for the services available to the plaintiff under the ACS program. Sixth, although the plaintiffs parents love their daughter more than anything in the world, they are not trained to provide the services available to the plaintiff under the waiver. Clearly, the plaintifffaces a threat of irreparable harm by not being given an opportunity to apply for ACS services. IV. LIKELIHOOD OF SUCCESS ON THE MERlTS
The plaintiff is a five-year-old girl with Down syndrome, and was born with congenital heart defects that have required surgery. She cannot speak or recognize dangers, and needs constant supervision. The plaintiff requires supplemental feeding through a gastrostomy tube in order to meet her nutritional needs, and has other developmental and physical disabilities resulting from her Down syndrome that can be treated with the services the defendants have seen fit to include in the ACS program.
The plaintiff currently receives Medicaid services under the Child Health Management Services ("CHMS ") program, the Medicaid program in Arkansas designed to treat children with developmental delays, age six and under. See Pediatric Specialty Care, 293 F.3d at 475-76 (describing the CHMS program in detail). As the years pass by and the plaintiff grows out of the CHMS program, she will need the services provided under the ACS waiver to help her stay out of an institution. The plaintiffs parents do not want their daughter to be placed in an institution, and want her to stay at home for as long as they can take care of her. With ACS services, the
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plaintiff can stay at home and stay out of an institution. Waiver services are designed for people just like the plaintiff, are provided nowhere else under the State Medicaid Plan, and include the following:
A. Supportive living Enables individuals to reside successfully in their own homes and assist them in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in the home and community-based setting.
B. Community experiences Allows individuals to gain experience and abilities that will prevent institutionalization, and improve community acceptance, job opportunities, and general well being.
C. Respite care Services to or for waiver participants, regardless of their age, who are unable to care for themselves because of the absence or need for relief of non-paid individuals, including parents of minors, primary caregivers and spouses of participants, who normally provide the care.
D. Non-medical transportation
Enables individuals to gain access to ACS and other community services, activities, and resources. E. Waiver coordination Ensures the delivery of all direct care services. F. Supported employment
Services for individuals for whom competitive employment at or above the minimum wage is unlikely, or who, because of their disabilities, need intensive ongoing support to perform in a competitive work setting. G. Adaptive equipment Provides for the purchase, leasing, and repair of adaptive, therapeutic, and
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Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 24 of 30

augmentative equipment required to enable individuals to increase, maintain, or improve their functional capacity to perform daily life tasks that would not be possible otherwise.

H. Environmental modifications

Provides for adaptations to the individual's place of residence that are necessary to ensure the health, welfare, and safety of the individual, or which enable the individual to function with greater independence and without which the individual would require institutionalization.

1.

Specialized medical supplies

Provides items necessary for life support, and the ancillary supplies and equipment necessary for the proper functioning of such items, including nondurable medical equipment not available under the State Plan.

1.

Supplemental support

Help improves or enable the continuance of community living, to allow the opportunity to participate in integrated leisure, recreational, social, and educational activities, and make a positive difference in the life of the participant.

K. Case management

Involves the on-going monitoring of the provision of services included in the participants multi-agency plan of service.

1. Consultation

Assists participants and their parents, guardians, and responsible individuals in carrying out the partiCipant's service plan.

M. Crisis intervention

Delivered in the participant's place of residence or other local community site by a mobile intervention team or professional.

N. Crisis center

Services provided in a crisis center equipped to provide short-term intervention, including 24-hour emergency medical care.

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See § 211.000 ofthe DDS Alternative Community Services Waiver Program Manual attached hereto as part of "Exhibit 3".
The plaintiffs father would like to emoll his daughter in the ACS program, and called ADHS in November of2002 and requested an application. ADHS would not give the plaintiffs father an application, but said they would send him a Client's Choice form in which he could designate whether he was interested in obtaining services for his daughter under the ACS program or ICF/MR program. ADHS sent a Client's Choice form to the plaintiffs father, which he prepared on behalf of his daughter and sent back to ADHS on November 22, 2002.
On January 8, 2003, ADHS sent a letter to the plaintiffs father in which it acknowledged that it had received his Client's Choice form, and that his daughter "has been added to the Request List and currently is number 2285 on the waiver request list." By their own admission, the defendants refuse to send an ACS application to the plaintiff, and have merely placed her on a "request list" for an indefinite period of time. All the while, there are approximately 993 unfilled slots under the program.
Based on these facts, the plaintiff is confident in her ability to succeed on the merits of this case. A similar situation was presented in Benjamin H. v. Ohl, No. 3:99-0338, Slip op. (S.D. W.V. July 15,1999). In that case, the plaintiffs were a group of mentally retarded and developmentally delayed individuals who were eligible for benefits under the West Virginia Medicaid Plan. West Virginia, like Arkansas, participates in both the ICFIMR program and the HCBS program. The plaintiffs expressed a preference to receive services under the HCBS waiver program (equal to the ACS waiver in Arkansas). They requested applications, but were placed on a "waiting list" for an indefinite period oftime. For this reason, the plaintiffs filed
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Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 26 of 30
claims pursuant to 42 U.S.c. § 1983, and alleged that the defendant's policies and procedures denied potential applicants the opportunity to apply for medical assistance. Id. at 21.
The district court granted preliminary injunctive relief to the plaintiffs on this claim. It found that West Virginia had no clear policies, procedures, or forms regarding applications under the waiver program. C~itical elements of application policies and procedures had not been reduced to writing, such as criteria for ranking individuals placed by the State on a "waiting list" for services. Individuals were discouraged from applying unless the State thought they were eligible, and no one was given the fully-completed application packet required by the State unless they were on the waiting list and the State had a slot open and waiting to be filled. Id. at
II.
Under these facts, virtually identical to our own, the district court concluded that "[t]hese practices violate the statute requiring that 'all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so.' 42 U.S.c. § 1396a(a)(8). They also violate the corresponding regulations, which provide that '[t]he agency must afford an individual wishing to do so the opportunity to apply for Medicaid without delay.' 42 C.F.R. § 435.906." Id. at 28. For these reasons, the district court held that the plaintiffs were likely to prevail on this claim, and granted a preliminary injunction. ld. at 31. A copy of the Benjamin H. decision is attached hereto and marked as "Exhibit 4".
The same result was reached in McMillan v. McCrimon, 807 F. Supp. 475 (C.D. Ill. 1992), in which the plaintiffs were severely disabled persons who were eligible for Medicaid and at risk of institutionalization. They claimed that they would be able to avoid entering an institution if they could apply for the Illinois HCMS waiver program, but that the State refused to
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Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 27 of 30
accept their applications. rd. at 477. The district court found that the "opportunity to apply" provision applies to waiver programs, that the plaintiffs would suffer irreparable harm without if an injunction was not issued, and that the plaintiffs established a likelihood of success on the merits of their claim. rd. at 479-482.
The defendants ~ite Makin v. Hawaii, 114 F. Supp. 2d 10 17 (Haw. 1999), in support of their argument that the plaintiff cannot demonstrate a likelihood of success on the merits. Their reliance on Makin is misplaced. To be sure, Makin involved a situation in which the plaintiffs could not obtain service under the Hawaii HCBS waiver "because of a lack of state funding for the services." Id. at 1020.
The plaintiff understands that the ACS waiver, like the HCBS waiver in Hawaii, contains a provision which states that:
The State will make waiver services available to individuals in the target group up to the lesser of the number of individuals indicated as factor C for the waiver year, or the number authorized by the State legislature for that period of time. The State will inform HCFA in writing of any limit which is less than factor C for that WaIver year. See page 106 of the ACS waiver attached to the Briefin Support of Defendants' Response to Plaintiff's Motion for Preliminary Injunction as "Exhibit A". Unlike the situation in Makin, the Arkansas legislature has not limited the number of slots that may be filled under the ACS program, and the defendants have not informed HCFA (now CMS) of any legislative limit that has been placed on these slots. Indeed, the Arkansas legislature recently stated that: Services which are covered by the Arkansas State Medicaid Program or under the Alternative Community Services Waiver Program (ACS) will be utilized to the maximum extent possible for any individual who is eligible for Medicaid coverage. It is the intent
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Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 28 of 30
of this section that DDS, as a general policy, maximize the use of Medicaid funding available for appropriate services. 2003 Ark. Acts 16 Spec. Sess. § 12. V. CONCLUSION For these reasons, the plaintiff is entitled to the injunction requested in her Complaint.
Respectfully submitted, TESSA G., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MARK G., Plaintiff ARMSTRONG ALLEN, PLLC P.O. Box 251310 Little Rock, AR 7 25-1310
(501) 280-01O~k;';'
(501) 28:~,~}~ (faCSi~
/ /(,
By:
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Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 29 of 30
CERTIFICATE OF SERVICE I, an attorney for the plaintiff, certify that I have served a copies of the foregoing pleading on opposing counsel by depositing copies thereof, postage prepaid, in the United States Mail, addressed as follows: Mr. Mark Hagemeier Assistant Attorney General 323 Center Street Suite 200 Little Rock, AR 72201-2610 Mr. Breck Hopkins Office of Chief Counsel Arkansas Department of Human Services P.O. Box 1437 Slot 1033 Little Rock, AR 72203-1437 this 29th day of July, 2003.
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Case 4:03-cv-00493-GTE Document 8 Filed 07/29/2003 Page 30 of 30
UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
Exhibits Attached
to Original
Document in Courts's Case File

 
 Case: 4:03-cv-00493-GTE As of:11/28/2010 09:32 AM CST 1 of 3
JWC, TERMED
U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:03−cv−00493−GTE

G v. Arkansas Human Svc, et al Assigned to: Judge G. Thomas Eisele Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff
Tessa G A minor, by and through her father and natural guardian, Mark G

Date Filed: 06/25/2003 Date Terminated: 08/14/2003 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Martin Wayne Bowen Bowen &Taylor Law, PLLC Post Office Box 30383 Little Rock, AR 72210 501−455−2331 Fax: 501−455−2214 Email: bowen@bowenlaw.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Arkansas Department of Human Services
Defendant Kurt Knickrehm in his individual capacity and in his official capacity as director of the Arkansas Department of Human Services
Defendant

represented by Breck G. Hopkins Arkansas Department of Human Services − LR Office of Chief Counsel Post Office Box 1437 Slot S−260 Little Rock, AR 72203−1437 (501) 682−8598 Email: breck.hopkins@arkansas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier UAMS Office of General Counsel 4301 West Markham Street Slot #860 Little Rock, AR 72205−7199 501−686−7608 Fax: 501−686−7736 Email: MHagemeier@uams.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Breck G. Hopkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 4:03-cv-00493-GTE As of:11/28/2010 09:32 AM CST 2 of 3

James Green PH.D., in his individual capacity and in his official capacity as Director of the Division of Developmental Disabilities Services of the Arkansas Department of Human Services

Breck G. Hopkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/25/2003 06/25/2003 06/25/2003 07/07/2003 07/07/2003 07/15/2003
07/17/2003 07/29/2003 08/07/2003 08/14/2003
08/14/2003
08/27/2003 08/27/2003 09/09/2003 09/09/2003 09/17/2003 09/22/2003

# Docket Text
1 COMPLAINT with jury demand; summons issued and returned to attorney; filing fee of $150.00 pd, receipt #108379 (kjp) (Entered: 06/25/2003)
2 MOTION by pltf for preliminary injunctive relief (kjp) Modified on 06/27/2003 (Entered: 06/25/2003)
3 BRIEF by plaintiff in support of motion for preliminary injunctive relief [2−1] (kjp) (Entered: 06/25/2003)
4 RESPONSE by defts to motion for preliminary injunctive relief [2−1] (rjh) (Entered: 07/08/2003)
5 BRIEF in support of defts' response to pltf's motion for preliminary injunction [4−1] (rjh) (Entered: 07/08/2003)
6 INITIAL SCHEDULING ORDER (DOC/CW); Rule 26(f) conf to be held on or before 9/15/03; Rule 26(f) rpt to be filed on or before 9/29/03; Rule 16(b) telephone conf to be scheduled if needed; proposed trial date is 2/23/04 (cc: all counsel) (rjh) (Entered: 07/15/2003)
7 ANSWER by defts (rjh) (Entered: 07/21/2003)
8 REPLY by pltf to response to motion for preliminary injunctive relief [2−1] (exhb attached) (rjh) (Entered: 07/30/2003)
9 SURREPLY by defts to pltf's motion for preliminary injunction [8−1] [4−1] [2−1] (rjh) (Entered: 08/07/2003)
CLERK'S MINUTES: HEARING on motion for preliminary injunction before Judge G. Thomas Eisele. Parties argue issues and then Deft. agrees to provide Plaintiff with application. Court finds issue moot due to Deft.'s agreement to provide application. (Court reporter, Elaine Hinson) (cjw) (Entered: 08/14/2003)
10 ORDER OF DISMISSAL W/O PREJ by Judge G. T. Eisele finding the mot for preliminary injunctive relief [2−1] moot based on defts' voluntary action during the hearing on pltf's mot for preliminary injunctive relief; Court considers pltf to be prevailing party; pltf's complaint is dism w/o prej; terminating case (cc: all counsel) (rjh) (Entered: 08/15/2003)
11 MOTION by plaintiff for costs and for attorney fees (rjh) (Entered: 08/28/2003)
12 BRIEF by plaintiff in support of motion for costs [11−1] and attorney fees [11−2] (rjh) (Entered: 08/28/2003)
13 RESPONSE by Arkansas Human Svc and James Green to motion for costs [11−1] and for attorney fees [11−2] (lej) (Entered: 09/10/2003)
14 BRIEF by Arkansas Human Svc and James Green in support of motion response [13−1] (lej) (Entered: 09/10/2003)
15 REPLY by plaintiff to response to motion for costs [11−1] and for attorney fees [11−2] (lej) (Entered: 09/17/2003)
16 ORDER by Judge G. T. Eisele for the reasons stated herein, pltf's motion for costs [11−1] &for atty fees [11−2] is granted in part &denied in part; pltf is awarded costs in the amt of $150.00 &atty fees in the amt of $16,500.00 (cc: all counsel)

Case: 4:03-cv-00493-GTE As of:11/28/2010 09:32 AM CST 3 of 3 (rjh) (Entered: 09/23/2003)