Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 1 of 50

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., No. 2:10-cv-02052-TSZ

9 K.S., T.M., A.R., M.J.B., J.H., H.C., THE ARC

OF WASHINGTON, SERVICE EMPLOYEES AMENDED COMPLAINT FOR

10 INTERNATIONAL UNION HEALTHCARE DECLARATORY AND INJUNCTIVE

775NW and PUGET SOUND ALLIANCE

RELIEF

11 FOR RETIRED AMERICANS,

CLASS ACTION

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Plaintiffs,

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v.

14 SUSAN DREYFUS, in her professional capacity as Secretary of Washington State
15 Department of Social and Health Services, et al.,
16 Defendants.
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I. INTRODUCTION

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1.1 Plaintiffs and members of the Plaintiff Class (“Plaintiffs” or “Beneficiary

20 Plaintiffs”) are disabled individuals who are entitled to receive a certain number of Medicaid in-

21 home personal care service hours each month, from approved providers, as set forth in care plans

22 and notices derived from annual, individualized CARE assessments of each Plaintiff’s health

23 condition, circumstances, and needs for care to enable them to remain safely and independently

24 at home. Defendants Susan Dreyfus and the Washington State Department of Social and Health

25 Services (“DSHS”), who administer Washington’s Medicaid program, announced that effective

26 January 1, 2011, they are cutting the Plaintiffs’ personal care service hours by an average of 10%

27 for budgetary reasons alone, thereby reducing Plaintiffs’ personal care service hours below the

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 1
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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1 levels they have been individually assessed to need and to which they have agreed in their care

2 plans. This reduction deprives Plaintiffs of the minimum Medicaid long-term care benefits to

3 which they are entitled and need, without reassessment of their current needs, adequate notice or

4 an opportunity for pre-deprivation hearing. This hours cut will result in plans of care that do not

5 meet the minimum needs that Defendants have assessed Plaintiffs to have and puts Plaintiffs at

6 risk of serious injury, health deterioration, and unnecessary institutionalization.

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1.2 Plaintiffs qualify for Medicaid long-term care in nursing homes. All Plaintiffs

8 who receive personal care services through programs other than Medicaid Personal Care

9 (“MPC”) have been determined to be functionally eligible for nursing facility level of care

10 (NFLOC), or an intermediate care facility for the mentally retarded (ICF/MR). All but a few

11 hundred Plaintiffs of the approximately 40,000 members of the class would be eligible for such

12 care if assessed.

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1.3 As an alternative to nursing homes or other forms of residential or nursing facility

14 level of institutional care, and at a much lower cost than institutional care, Plaintiffs consented to

15 and approved care plans that authorize in-home personal care assistance with their basic and

16 fundamental activities of daily living. These include: eating, bathing, toileting, mobility, catheter

17 and bowel care, turning and repositioning, passive range of motion, dressing, medication

18 management, essential shopping and housework. This in-home assistance permits Plaintiffs to

19 meet their long term care needs and remain safely in their homes, the most integrated

20 community-based setting possible, where they enjoy maximum independence, dignity, and

21 engagement with their neighbors and family.

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1.4 Plaintiffs’ freedom to live at home depends upon their continued access to

23 Medicaid in-home personal care services at the level DSHS individually assessed them to need.

24 Defendants’ reduction of personal care services below their level of need will lead to

25 unnecessary institutionalization of individuals who would otherwise remain in their own homes.

26 This violates the integration mandate of the Americans with Disabilities Act (“ADA”), and

27 Section 504 of the Rehabilitation Act (“Section 504”), which require Defendants to administer

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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1 services and programs in the most integrated setting appropriate to the needs of the individual

2 with disabilities.

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1.5 Currently, Plaintiffs are awarded Medicaid home care service hours as a result of

4 individualized CARE assessments that determine unmet needs. On the basis of those CARE

5 assessments, DSHS determines the amount of medically necessary covered services by

6 assignment of individuals to acuity and need-based categories with allocation of base personal

7 care hours to meet the assessed needs in each category, with additional individual adjustments

8 and possible, but infrequent, exceptions to rules. DSHS authorized each Beneficiary Plaintiff

9 and putative class member to receive these Medicaid services only after individualized: CARE

10 assessment; finding of financial and functional eligibility for services; consent for services and

11 approval of the plan of care; and selection of an Individual or Agency provider qualified for

12 payment by DSHS. The final arrangements are summarized in a care plan and Planned Action

13 Notice (PAN). Through the CARE assessment, the care plan, and the PAN, the amount,

14 duration, and scope of the Medicaid medically necessary in-home personal care services are

15 awarded to meet the individual needs of the Plaintiff Beneficiaries.

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1.6 Reduction of those services based on an arbitrary budgetary figure violates the

17 Medicaid Act’s requirements that reasonable standards be used to determine the extent of

18 services, that services be sufficient in amount to accomplish the purposes of the program, that

19 individuals with comparable needs receive comparable services, and that recipients have the

20 freedom to choose between home and community-based services and institutional services.

21 Reduction of these services without obtaining federal approval of a plan amendment further

22 violates the procedural requirements of the Medicaid Act.

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1.7 On or after December 6, 2010, Defendants notified the Plaintiffs, in writing, that

24 their home care service hours would be reduced effective January 1, 2010. DSHS did not

25 reassess Plaintiffs, arrange for alternative services to take the place of the lost personal care

26 services, notify class members of the mandatory Medicaid services that are available to them as

27 replacement services, or provide notice and an opportunity for an administrative hearing to

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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1 challenge the reduction in services, all in violation of the Due Process Clause of the United

2 States Constitution.

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1.8 Defendants’ conduct has thus violated and will violate Plaintiffs’ constitutionally

4 protected right to due process guaranteed under the Fourteenth Amendment to the U.S.

5 Constitution, the Medicaid Act, the Americans with Disabilities Act, Section 504 of the

6 Rehabilitation Act, 42 U.S.C. §1983, and the Supremacy Clause of the U.S. Constitution.

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1.9 As a result of this reduction in services, Plaintiffs will experience immediate harm

8 and ongoing deterioration of their health, functional capacities, and independence. This

9 reduction of necessary personal care services will cause immediate and irreparable harm.

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1.10 In addition, Defendants’ precipitous and arbitrary cuts in home care services will

11 weaken the existing infrastructure and home-based service model for the provision of these

12 Medicaid services. The loss in hours will require some current and long-serving personal care

13 providers to stop working for their Plaintiff clients, leaving Plaintiffs without the care they need

14 or the staff to provide that care. Many Plaintiffs will be unable to secure adequate replacement

15 caregivers available to do the work at the lower assessment of hours. The loss in hours will

16 require some Plaintiffs to be unattended and make do with inadequate support and an unsafe

17 level of care. Some Plaintiffs will be forced from their homes to seek the long-term care they

18 need in institutional facilities, or residential facilities in the community.

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1.11 Plaintiffs seek declaratory and injunctive relief to prohibit the reduction of

20 Plaintiffs’ personal care hours set to take effect on January 1, 2011. In the alternative, Plaintiffs

21 seek an injunction to prohibit such reduction in in-home care hours until such time as Defendants

22 can demonstrate that the assessed level of services is not necessary or until Defendants can

23 demonstrate that alternative services are in place in the most integrated setting appropriate to

24 their needs and conditions (which has been shown to be at home), and all class members whose

25 personal care services are set to be reduced are able to pursue pre-termination administrative fair

26 hearings.

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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II. PARTIES

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2.1 Named Beneficiary Plaintiffs

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2.1.1 Plaintiff M.R. is a resident of King County, Washington who receives

4 Medicaid personal care services through a Division of Developmental Disabilities (“DDD”)

5 waiver.

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2.1.2 Plaintiff S.J. is a resident of Grays Harbor County, Washington who

7 receives Medicaid personal care services through the MPC program.

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2.1.3 Plaintiff C.B. is a resident of King County, Washington who receives

9 Medicaid personal care services through the Community Options Program Entry System

10 (“COPES”) program.

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2.1.4 Plaintiff D.W. is a resident of Pierce County, Washington who receives

12 Medicaid personal care services through the MPC program.

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2.1.5 Plaintiffs A.B., M.B, An.B, and J.B. are residents of Clark County,

14 Washington who receive Medicaid personal care services through the DDD waiver programs.

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2.1.6 Plaintiff K.S. is a resident of Spokane County, Washington who receives

16 Medicaid personal care services through the COPES program.

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2.1.7 Plaintiff T.M. is a resident of Benton County, Washington and receives

18 Medicaid personal care services through a DDD waiver.

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2.1.8 Plaintiff A.R. is a resident of King County, Washington who receives

20 Medicaid personal care services through the COPES program.

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2.1.9 Plaintiff M.J.B. is a resident of Columbia County, Washington who

22 receives Medicaid personal care services through the COPES program.

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2.1.10 Plaintiff J.H. is a resident of Thurston County, Washington who receives

24 Medicaid personal care services through the COPES program.

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2.1.11 Plaintiff H.C. is a resident of King County, Washington who receives

26 Medicaid personal care services through the COPES program.

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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2.2 Organizational Plaintiffs

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2.2.1 Plaintiff The Arc of Washington (“The Arc”) is a non-profit association

3 with a principal office in Thurston County, Washington.

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2.2.2 Plaintiff Service Employees International Union Healthcare 775NW

5 (“SEIU”) is an unincorporated association with a principal office in King County, Washington

6 and brings this suit on behalf of its members that include approximately 39,000 Independent

7 Providers and Agency Providers in Washington State who provide in-home personal care

8 services through the MPC, COPES, and/or other programs.

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2.2.3 Plaintiff Puget Sound Alliance for Retired Americans (“PSARA”) is a

10 nonprofit association and an affiliate of the national Alliance for Retired Americans and the

11 Washington Alliance for Retired Americans with a principal office in King County, Washington.

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2.3 Defendants

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2.3.1 Defendant Dreyfus is Secretary of the State of Washington’s Department

14 of Social and Health Services (DSHS), a department of the State of Washington, a public entity

15 as defined under 42 U.S.C. § 12131 (1), and a program that receives Federal financial assistance

16 under Section 504. DSHS administers the federal Medicaid program in Washington State

17 Secretary Dreyfus is responsible for ensuring that Washington’s Medicaid Program is

18 administered in a manner consistent with federal law. She is sued in her official capacity only.

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2.3.2 Defendant DSHS is a department of the State of Washington, a public

20 entity as defined under 42 U.S.C. § 12131 (1), and a program that receives Federal financial

21 assistance under Section 504. DSHS administers the federal Medicaid program in Washington

22 State. Plaintiffs assert only the Third Claim for Relief against Defendant DSHS.

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2.3.3 All of the acts and omissions set forth in this matter were done by

24 Defendants or Defendants’ employees and agents, within the scope of their employment, and

25 under the color of state law. They were official acts of Defendants undertaken directly by policy

26 makers, were actions caused by the policies, procedures, practices and customs of State of

27 Washington and Defendant DSHS, and/or were ratified by Defendants.

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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III. JURISDICTION AND VENUE

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3.1 This Court has personal and subject matter jurisdiction under 28 U.S.C. § 1331,

3 because this action arises under the laws of the United States, and 28 U.S.C. § 1343(3) and (4),

4 which confer on the federal district courts original jurisdiction over claims asserted under 42

5 U.S.C. § 1983 to redress deprivations of rights, privileges, or immunities guaranteed by Acts of

6 Congress and the United States Constitution and claims that arise under the Supremacy Clause of

7 the United States Constitution.

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3.2 Venue is properly located in King County, Washington, because Defendants

9 maintain a regional office in the district for the purpose of administering its long-term care

10 programs, including the provision of home-based personal care services; Defendants’ long term

11 care programs, including the provision of home-based personal care services, are implemented in

12 King County, Washington; a majority of the Plaintiffs will lose their Medicaid services in King,

13 Snohomish, Skagit, and Whatcom Counties; and the events giving rise to these claims occurred

14 or will occur, unless enjoined, in King County, Washington.

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3.3 Plaintiffs seek declaratory, injunctive, and other appropriate relief pursuant to 28

16 U.S.C. §§2201 and 2202, 42 U.S.C. §1983, the Supremacy Clause of the U.S. Constitution, and

17 Federal Rules of Civil Procedure 23, 57, and 65.

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IV. FACTUAL ALLEGATIONS

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4.1 Statutory and Regulatory Framework

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4.1.1 The Americans with Disabilities Act (ADA)

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4.1.1.1 The ADA and its attendant regulations prevent discrimination

22 against people with disabilities and unnecessary segregation.

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4.1.1.2 In the ADA, Congress found that “[individuals with disabilities

24 continually encounter various forms of discrimination, including . . . segregation. . . .” 42 U.S.C.

25 § 12101(a)(5). It provides that “no qualified individual with a disability shall, by reason of

26 disability, be excluded from participation in or be denied the benefits of the services, programs,

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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1 or activities of a public entity or be subjected to discrimination by such entity.” 42 U.S.C.

2 §12132.

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4.1.1.3 Regulations implementing Title II of the ADA provide: “A

4 public entity shall administer services, programs, and activities in the most integrated setting

5 appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).

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4.1.1.4 Regulations implementing Title II of the ADA provide: “A

7 public entity may not, directly or through contractual or other arrangements, utilize criteria or

8 other methods of administration: (i) that have the effect of subjecting qualified individuals with

9 disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of

10 defeating or substantially impairing accomplishment of the objectives of the entity’s program

11 with respect to individuals with disabilities ....” 28 C.F.R. § 35.130(b)(3).

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4.1.2 Section 504 of the Rehabilitation Act (Section 504)

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4.1.2.1 Section 504 of the Rehabilitation Act of 1973 provides, “No

14 otherwise qualified individual with a disability in the United States . . . .shall, solely by reason of

15 her or his disability, be excluded from participation in, be denied the benefits of, or be subjected

16 to discrimination under any program or activity receiving Federal financial assistance.” 29

17 U.S.C. § 794.

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4.1.2.2 Regulations implementing Section 504 require a recipient of

19 federal financial assistance to administer its services, programs, and activities in “the most

20 integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. §

21 41.51(d).

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4.1.2.3 Regulations implementing Section 504 prohibit recipients of

23 Federal financial assistance from “[u]tiliz[ing] criteria or methods of administration … (i) [t]hat

24 have the effect of subjecting qualified handicapped persons to discrimination on the basis of

25 handicap [or] (ii) [t]hat have the … effect of substantially impairing accomplishment of the

26 recipients’ program with respect to handicapped persons.” 45 C.F.R. § 84.4(b)(4); 28 C.F.R. §

27 41.51(b)(3)(i).

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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4.1.3 The Medicaid Program

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4.1.3.1 Medicaid is a cooperative, jointly funded program between the

3 federal and state governments that provides medical assistance to low-income individuals with

4 disabilities. 42 U.S.C. § 1396 – 1396v.

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4.1.3.2 Washington has elected to participate in the Medicaid program,

6 and so must comply with the requirements of the federal Medicaid Act and its implementing

7 regulations, the requirements of Medicaid waivers, federal and state law.

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4.1.3.3 The purpose of Medicaid is to furnish, as far as practicable,

9 “medical assistance on behalf of … aged, blind or disabled individuals, whose income and

10 resources are insufficient to meet the costs of necessary medical services” and “to help such

11 families and individuals to attain or retain capability for independence or self-care …” 42 U.S.C.

12 § 1396.

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4.1.3.4 On the federal level, Medicaid is administered by the Centers

14 for Medicare and Medicaid Services (CMS), an agency within the United States Department of

15 Health and Human Services (HHS).

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4.1.3.5 States participate in Medicaid by submitting a State Medicaid

17 Plain to CMS for approval. 42 U.S.C. §1396; 42 C.F.R. §430.12. States can make changes to

18 their Medicaid programs by submitting state plan amendments to CMS for approval. Id.

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4.1.3.6 Washington State elects to participate in Medicaid, and,

20 therefore, must comply with the requirements of the federal Medicaid Act, its implementing

21 regulations, the United States Constitution, the Americans with Disabilities Act, and Section 504

22 of the Rehabilitation Act of 1973. 42 U.S.C. § 1396, et seq.

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4.1.3.7 Coverage of certain services is mandatory under Medicaid.

24 States that elect to participate in the Medicaid program must cover nursing facility services for

25 individuals over 21 year of age. 42 U.S.C. §§ 1396a(a)(10), 1396d(a)(4)(A). States must also

26 offer home health services, including skilled nursing services. 42 U.S.C. §§ 1396d (a)(7), 1396r,

27 42 CFR 440.210(a)(1), 440.220(a)(3), 440.70, 441.15.

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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4.1.4 The State’s Medicaid In-Home Personal Care Services Programs

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4.1.4.1 DSHS administers the Washington Medicaid program.

3 Medicaid pays for medical and personal care services, including nursing home care and in-home

4 personal care services.

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4.1.4.2 Defendants have agreed to provide, and DSHS administers, in-

6 home personal care services to eligible Medicaid recipients in its State Medicaid Plan through

7 the Medicaid Personal Care (“MPC”) program, authorized under RCW 74.09.520.

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4.1.4.3 Approximately 15,000 purported class members receive MPC

9 in-home services. Each has an unmet or partially met need with at least three of the following

10 activities of daily living, or unmet or partially met needs resulting in the needs not occurring with

11 at least one of the following activities of daily living: eating, toileting, bathing, dressing,

12 transfer, bed mobility, walking or locomotion, medication management, personal hygiene, body

13 care. WAC 388-106-0210.

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4.1.4.4 All but a few hundred MPC beneficiaries are so disabled that

15 DSHS acknowledges they would meet the functional eligibility criteria entitling them to nursing

16 facility level of care, but they have been directed toward the MPC program and have not been

17 assessed for nursing facility or other institutional facility eligibility by DSHS.

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4.1.4.5 Defendants have agreed to provide, and DSHS administers, in-

19 home personal care services to eligible Medicaid recipients through the Community Options

20 Program Entry System (“COPES”) Medicaid waiver program (provided under a § 1915(c)

21 waiver), authorized under RCW 74.39A.030.

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4.1.4.6 Approximately 18,000 purported class members receive

23 COPES in-home personal care services.

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4.1.4.7 To qualify for the COPES waiver, DSHS individually assessed

25 each beneficiary through the CARE assessment and certified that, but for the provision of such

26 services, the individuals require nursing facility level of care, or will likely need that level of care

27 within thirty days, as defined in 42 CFR 440.40 and 42 CFR 440.155. WAC 388-106-0310(4).

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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4.1.4.8 Defendants have agreed to provide, and DSHS administers, in-

2 home personal care services to eligible Medicaid recipients through the Medically Needy In-

3 Home Waiver (“MNIW”), a Medicaid waiver program (provided under a § 1915(c) waiver),

4 authorized under RCW 74.09.700.

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4.1.4.9 Approximately 60 purported class members receive MNIW in-

6 home personal care services.

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4.1.4.10 To qualify for the MNIW waiver, DSHS individually assessed

8 each beneficiary through the CARE assessment and certified that, but for the provision of such

9 services, the individuals require nursing facility level of care, or will likely need that level of care

10 within thirty days, as defined in 42 CFR 440.40 and 42 CFR 440.155. WAC 388-106-0510 (4).

11

4.1.4.11 Defendants have agreed to provide, and DSHS administers, in-

12 home personal care services to eligible Medicaid recipients who have developmental and

13 intellectual disabilities through four Medicaid waiver programs administered by the

14 Department’s Division of Developmental Disabilities known as the Basic, Basic Plus, Core, and

15 Community Protection waivers (“DDD Waivers”). The waiver programs are authorized by 42

16 U.S.C. § 1396n(c)(1).

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4.1.4.12 Approximately 11,000 purported class members are served

18 through the DDD Waivers.

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4.1.4.13 To qualify for the DDD waivers, DSHS individually assessed

20 each recipient and certified that, but for the provision of such services, the individuals would

21 require care in Intermediate Care Facility for the Mentally Retarded or the Intellectually

22 Disabled (ICF/MR or ICF/ID), such as Rainier School, as defined in 42 CFR 440.150. These

23 individuals are also be eligible for and, in the absence of in-home personal care services, would

24 require nursing facility level of care as defined in 42 CFR 440.40 and 42 CFR 440.155.

25

4.1.4.14 Defendants also have agreed to provide, and DSHS

26 administers, in-home personal care services to eligible Medicaid recipients through a New

27 Freedom Medicaid Waiver, a pilot program in King and Clark County.

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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4.1.4.15 To qualify for this waiver, DSHS individually assessed each

2 recipient and certified that, but for the provision of such services, the individuals would require

3 nursing facility level of care as defined in 42 CFR 440.40 and 42 CFR 440.155.

4

4.1.4.16 Defendants also have agreed to provide, and DSHS

5 administers, in-home personal care services through state-funded in-home personal care services

6 through its CHORE program authorized under RCW 74.39A.110.

7

4.1.4.17 Having elected to provide those services, DSHS must follow

8 the applicable requirements of the Medicaid Act, the Medicaid Waivers, federal and state law.

9

4.1.4.18 In addition to in-home personal care services, the Defendant

10 provides long-term care and personal care services in community based residential settings such

11 as Adult Family Homes, Boarding Homes, and Assisted Living Facilities.

12

4.1.4.19 The purpose of the State’s long-term care service options

13 include: to “[e]stablish a balanced range of health, social and supportive services that deliver

14 long-term care services to chronically, functionally disabled persons of all ages. RCW

15 74.39.005(1); to “[e]nsure that services are provided in the most independent living situation

16 consistent with individual needs;” and to “[e]nsure that long-term care service options shall be

17 developed and made available that enable functionally disabled persons to continue to live in

18 their homes or other community residential facilities while in the care of their families or other

19 volunteer support persons.” RCW 74.39.005(1) (3), (4); see also RCW 74.39A.007.

20

4.1.4.20 The legislature also directed the purpose of the long-term care

21 service options to “[e]nsure that functional ability shall be the determining factor in defining

22 long-term care service needs and that these needs will be determined by a uniform system for

23 comprehensively assessing functional disability.” RCW 74.39.005(2).

24

4.1.4.21 In or around 2003, DSHS implemented the Comprehensive

25 Assessment Reporting Evaluation (CARE) tool and required it to be used to individually assess

26 needs and assign in-home personal care hours to meet those individually assessed needs. DSHS

27 also required use of the CARE tool to determine rates for community residential facilities based

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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1 upon individually assessed needs. In or around 2007, DSHS required the CARE tool to be used

2 to individually assess the needs and assign in-home personal care hours to meet those

3 individually assessed needs of individuals with developmental or intellectual disabilities and to

4 determine rates for community residential facilities serving those with developmental or

5 intellectual disabilities based upon individually assessed needs.

6

4.1.4.22 Washington State also uses the “Supports Intensity Scale”

7 (“SIS”) which is a nationally normed instrument that is part of the CARE tool. It applies specific

8 and uniform standards to determine the level of care needed for developmentally disabled

9 individuals. Hereinafter, we use the term “CARE tool” to refer to all individualized assessments

10 made using the CARE tool.

11

4.1.4.23 With the exception of the cuts at issue in this lawsuit, it has

12 been the policy and practice of DSHS to provide personal care services to in-home clients served

13 through all of its State Medicaid Plan and Waiver Programs based upon the level of individually

14 assessed client needs, as determined through the centralized CARE assessment process.

15

4.1.4.24 Each Plaintiff was awarded Medicaid home care service hours

16 as a result of individualized CARE assessments that determined unmet needs. On the basis of

17 those CARE assessments, DSHS determined the amount of medically necessary covered services

18 by assignment of individuals to acuity and need-based categories, with allocation of base

19 personal care hours to meet the assessed needs in each category, with additional individual

20 adjustments and possible, but infrequent, exceptions to rules, consistent with WAC 388-106-

21 0055. The determination of unmet needs, and the classification/categorization, incorporates

22 individualized assessments of each Beneficiary’s cognitive performance, clinical complexity,

23 mood/behaviors symptoms, and Activities of Daily Living (ADL)s. WAC 388-106-0085.

24

4.1.4.25 DSHS authorized each Beneficiary Plaintiff and putative class

25 member to receive a certain number of Medicaid in-home personal care service hours only after

26 individualized: CARE assessment; finding of financial and functional eligibility for services;

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 13
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 14 of 50

1 consent for services and approval of the plan of care; and selection of an Individual or Agency

2 provider qualified for payment by DSHS, as required by WAC 388-106-0045.

3

4.1.4.26 In the CARE assessment process, beneficaries are afforded the

4 freedom of choice between types of long term care (in the home, community residential settings,

5 or institutional settings) as well as the selection of qualified Individual Providers of Agency

6 Providers.

7

4.1.4.27 The CARE assessment results and Medicaid authorizations are

8 summarized in a plan of care, “care plan,” or for beneficiaries with developmental or intellectual

9 disabilities, the Individual Support Plan, “ISP.” DSHS provides Beneficiaries, and/or their

10 guardians, with a copy of the CARE assessment, care plan or ISP, and a Planned Action Notice

11 (PAN) that summarizes the authorized hours of monthly in-home personal care. The approved

12 Personal Care Provider also receives these notices and directives as to the tasks to perform and

13 the amount of hours awarded to perform them. Through the CARE assessment, the care plan or

14 ISP, and the PAN, the amount, duration, and scope of the Medicaid medically necessary in-home

15 personal care services are awarded to meet the individual needs of the Plaintiff Beneficiaries.

16

4.1.4.28 The CARE assessment occurs annually. Changes to the care

17 plan/ISP, including the amount of in-home personal care Medicaid benefits awarded, requires a

18 reassessment using the CARE tool. CARE reassessments are required when there is a change in

19 the condition of the beneficiary, a change in Care Provider, or a change in services.

20

4.1.4.29 The State’s in-home personal care services programs help

21 prevent costly and unnecessary institutionalization, save the State significant funds, and, at the

22 same time, improve the quality of life for the individuals served.

23

4.2 State’s Planned Reduction of Personal Care Services Effective Jan. 1, 2011

24

4.2.1 On September 14, 2010, Governor Christine O. Gregoire issued Executive

25 Order 10-04, which instructed the Director of the Office of Financial Management to calculate

26 the percentage shortfall in the current fiscal period and ordered the reduction of the amount of

27 each appropriation by that percentage. Two days later, the Director issued a memorandum

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 14
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 15 of 50

1 instructing agency directors to submit allotment amendments reflecting a 6.287 percent

2 reduction.

3

4.2.2 In response, Defendant DSHS submitted a plan that provided for a ten

4 percent reduction in personal care hours for Medicaid home care recipients – a reduction far

5 higher than the average reduction in spending required of the agency.

6

4.2.3 That plan explained that “[t]he actual reduction will vary from 6 percent to

7 18.4 percent based upon acuity,” with lower acuity clients receiving higher percentage hours

8 reductions, and acknowledged that this reduction would be on top of an average four percent

9 increase that took place in FY 2010 (with actual reductions ranging from 1-10%) and some

10 additional targeted reductions in FY 2011.

11

4.2.4 The agency plan admitted, “[w]ith reduced hours, in-home clients will

12 need to choose which tasks their employees spend their time on and there may not be enough

13 time to complete all tasks”; that clients with the higher percentage reductions might not be able

14 to have some authorized tasks completed regularly; and that, “[i]f the reduction results in an

15 unsafe plan of care, some clients may need to go to community residential or nursing facility

16 settings.”

17

4.2.5 On November 30, 2010, the DSHS Aging and Disability Services

18 Administration issued an HCS Management Bulletin outlining the agency’s plan for

19 implementation of the 10% personal care services cut. That bulletin set forth the following cuts

20 to base monthly hours for the various classification groups, ranging from 6.4 percent to 25

21 percent.

22

4.2.6 The bulletin further explained that there would be “no appeal rights for

23 this change . . . because this is a service change directed by the Governor and applies to the entire

24 program,” and that a letter would be mailed the week of December 6, 2010 notifying clients of

25 the upcoming reduction in hours.

26

27

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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 16 of 50

1

4.2.7 On information and belief, on or around December 6, 2010, letters were

2 sent to recipients of in home personal care services notifying them of the specific hours

3 reductions that would be effective January 1, 2011.

4

4.2.8 The budget-based cuts, implemented without individual CARE

5 assessments, undermines the integrity of the long-term care system and contradicts legal

6 obligations DSHS has to provide these services to meet client needs. Abandoning care

7 assessments before making hours cuts constitutes a material alteration in the policies and

8 practices of DSHS in implementing state plan and waiver services.

9

4.2.9 On information and belief, Defendants have not sought approval of plan or

10 waiver amendments from CMS.

11

4.2.10 The reduction of home care services below assessed need is likely to cause

12 Plaintiffs to suffer declines in physical functioning, increased medical complications, and

13 additional preventable accidents resulting in physical injury and hospitalizations. This will

14 expose them to a serious risk of harm to their health and safety and cause a serious risk of

15 unwanted out-of-home placement, including unwanted institutionalization.

16

4.2.11 The reduction of home care services below assessed need is likely to cause

17 Plaintiffs members to suffer declines in mental functioning. This will expose them to a serious

18 risk of harm to their health a4.2.12nd safety and cause a serious risk of out-of-home placement,

19 including unwanted institutionalization.

20

4.2.12 Plaintiffs whose physical or cognitive impairments are such that they

21 cannot be left alone or whose health conditions are extremely unstable are likely to face

22 immediate out-of-home placement in an institution.

23

4.2.13 Out-of-home placement in an institution often further destabilizes already

24 compromised mental or physical functioning. Once placed in an institution, it is extremely

25 difficult for individuals to move out of institutions and back into the community.

26

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

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1

4.2.14 Institutional placement is more expensive than in home care, and so

2 unnecessary entry into nursing homes and other forms of institutional care will diminish any

3 savings the State expects to realize from these hours reductions.

4

4.2.15 Defendants have not arranged for alternative, community-based Medicaid

5 services or alternative institutional Medicaid services to be provided to Plaintiffs. Defendant’s

6 reduction of home care hours below the assessed need will undermine the existing infrastructure

7 and service model for the provision of Medicaid personal care services.

8

4.3 Factual Allegations Related to Beneficiary Plaintiffs

9

4.3.1 All Named Beneficiary Plaintiffs, including Plaintiffs M.R., S.J., C.B.,

10 D.W., A.B., M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., are qualified individuals with

11 disabilities as defined under 42 U.S.C. § 12131(2) and Section 504 of the Rehabilitation Act and

12 are substantially impaired in numerous major life activities.

13

4.3.2 All Beneficiary Plaintiffs, including Plaintiffs M.R., S.J., C.B., D.W.,

14 A.B., M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., are eligible for nursing facility level

15 of care, but prefer and choose to live at home and integrated in the community.

16

4.3.3 In order to survive on a day to day level, all Beneficiary Plaintiffs,

17 including Plaintiffs M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., K.S., T.M., A.R., M.J.B.,

18 J.H., H.C., require substantial assistance in activities of daily living (ADLs) and independent

19 activities of daily living (IADLs).

20

4.3.4 Defendants, by and through DSHS case managers, have determined that

21 all Beneficiary Plaintiffs, and Plaintiffs M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., K.S.,

22 T.M., A.R., M.J.B., J.H., H.C., meet the functional and financial eligibility requirements for

23 Medicaid in-home long term care services. Defendants awarded Medicaid home care service

24 hours to all Beneficiary Plaintiffs, including Plaintiffs M.R., S.J., C.B., D.W., A.B., M.B., An.B,

25 J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., as a result of individualized CARE assessments that

26 determined their unmet needs and amount of medically necessary covered services, assigned

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 17
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 18 of 50

1 individuals to acuity and need-based categories, and allocated base personal care hours to meet

2 the assessed needs in each category, with individual adjustments.

3

4.3.5 DSHS authorized each Beneficiary Plaintiffs, including Plaintiffs M.R.,

4 S.J., C.B., D.W., A.B., M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., to receive these

5 in-home personal care Medicaid services only after the individualized: CARE assessment;

6 finding of financial and functional eligibility for services; consent for services and approval of

7 the plan of care; and selection of an Individual or Agency provider qualified for payment by

8 DSHS.

9

4.3.6 By providing Medicaid services at home, Defendants successfully

10 provided Medicaid services in the most integrated setting appropriate to her needs.

11

4.3.7 On or after December 6, 2010, Defendant DSHS sent each Beneficiary

12 Plaintiff, including Plaintiffs M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., K.S., T.M., A.R.,

13 M.J.B., J.H., H.C., letters notifying them that their personal home care hour benefits would be

14 reduced effective January 1, 2011. The notice letters identified the current hours of in-home

15 personal care services received under their care plan, and the number of hours they will receive

16 in in-home personal care services effective January 1, 2011 after the hours cut. The letters

17 specifically stated they have no right to appeal the reduction of in-home personal care services.

18

4.3.8 Beneficiary Plaintiffs, including Plaintiffs M.R., S.J., C.B., D.W., A.B.,

19 M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., remain eligible for Medicaid services

20 after January 1, 2011, including 24/7 nursing facility level of care. Some Beneficiary Plaintiffs

21 are eligible for other Medicaid services after January 1, 2011, including home health and skilled

22 nursing.

23

4.3.9 Defendants never contacted the Beneficiary Plaintiffs, including Plaintiffs

24 M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., regarding

25 the change in services, failed to notify them that they remain eligible for Medicaid services to

26 meet their needs after January 1, 2011, failed to provide them options for alternative Medicaid

27 long-term care services in community-based settings or in more institutional settings that would

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 18
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 19 of 50

1 provide the full and necessary medical care and services that will be lost when the hour cuts go

2 into effect, failed to obtain their agreement to such replacement services, and failed to send a

3 planned action notice re: new treatment arrangements.

4

4.3.10 Defendants reduced the Beneficiary Plaintiffs, including Plaintiff M.R.,

5 S.J., C.B., D.W., A.B., M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C.’s, Medicaid

6 services without undertaking CARE reassessments, without proper notice, and without providing

7 any opportunity to appeal.

8

4.3.11 With January 1, 2011 hours cuts, Defendants failed to provide Beneficiary

9 Plaintiffs, including Plaintiffs M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., K.S., T.M., A.R.,

10 M.J.B., J.H., H.C., with Medicaid long-term care services in the most integrated setting

11 appropriate to Plaintiffs’ needs and conditions, which has proven to be at home, where they were

12 living prior to the hours cuts.

13

4.3.12 Defendants and their DSHS case worker effectively terminated, reduced or

14 delayed Beneficiary Plaintiffs’, including Plaintiffs M.R., S.J., C.B., D.W., A.B., M.B., An.B,

15 J.B., K.S., T.M., A.R., M.J.B., J.H., H.C.’s, home-based Medicaid services without undertaking a

16 CARE reassessment and without providing any opportunity to appeal.

17

4.3.13 The State of Washington would be required to pay more for Beneficiary

18 Plaintiffs’ care, including the care of Plaintiffs M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B.,

19 K.S., T.M., A.R., M.J.B., J.H., H.C., in a nursing home or other institutional or residential setting

20 than it has paid or would be required to pay for home-based personal care services.

21

4.4 Factual Allegations Related to Plaintiff M.R.

22

4.4.1 Plaintiff M.R., a 37-year-old resident of King County, Washington,

23 appears in this action through her mother, legal guardian, and next friend, Dorcas Maxson, who

24 is also M.R.’s Individual Provider. Plaintiff M.R. is not able to appear on her own behalf in this

25 litigation.

26

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 20 of 50

1

4.4.2 Plaintiff M.R. has limited cognitive abilities and has been diagnosed as

2 having severe mental retardation, daily grand and petite mal seizures, Scoliosis, Cerebral Palsy,

3 Hypothroidism, and mood disorder.

4

4.4.3 Defendant DSHS deemed Plaintiff M.R. eligible for Medicaid personal

5 care services through a DDD waiver and assessed her to have a medical necessity of 236 hours

6 per month of personal care services. Plaintiff M.R. requires assistance with her medical

7 conditions including administration of anti-seizure drugs through her feeding tube two times per

8 day and other medications up to five times per day, monitoring seizures, cleaning and

9 maintaining her feeding tube, compression stockings for her swollen legs to maintain vein

10 functionality, and monitoring her health closely for seizures and to prevent complications of all

11 her conditions. She also requires assistance with most of the activities of daily living, including

12 eating, food preparation, toileting (including perineal and incontinence care), bathing, dressing,

13 aid with braces, walking, transferring, behavior monitoring, housecleaning, and laundry. The

14 236 hours are minimally sufficient to provide for M.R.’s extensive needs, and M.R.’s DSHS

15 case manager has assessed that her household is “at serious risk of failure.”

16

4.4.4 Until 2006, M.R. lived in an adult family home, but her mother brought

17 M.R. home in order to improve her care after M.R. began to have frequent seizures and her

18 doctors predicted she would not live out the year. With personal care assistance, Plaintiff M.R.

19 is able to live in her own home, where she receives better care, more attention, and is able to

20 choose her own activities and set her own schedule.

21

4.4.5 During the week of December 6, 2010, Defendant DSHS notified M.R.

22 that, beginning January 1, 2011, it plans to cut her personal care service hours by 21 hours per

23 month to 215 hours, a reduction of 8.9%. M.R.’s condition has not improved since her last

24 assessment; it has worsened, as her mobility has decreased, and seizures and behavior problems

25 (including refusal to eat and outbursts) have increased.

26

4.4.6 The reduction set to take effect will require M.R. to be institutionalized in

27 a nursing home or ICF/DD, because the reduced hours will be insufficient to provide care for

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 21 of 50

1 M.R., M.R.’s mother will be forced to get another job to make ends meet, and it will be difficult

2 to find another provider and impossible to do so before January 1. M.R. cannot be left

3 unattended for any period of time without immediate and serious adverse consequences. If M.R.

4 enters an institutional care facility, she will deteriorate because she will lose her close family

5 connections, interaction in the community, independence, and choice. Her behavior problems

6 and likely her physical condition will deteriorate seriously with potentially life threatening

7 consequences.

8

4.5 Factual Allegations Related to Plaintiff S.J.

9

4.5.1 Plaintiff S.J. was diagnosed with Myotonic Muscular Dystrophy at age 35

10 and is now 58 years old. In 2002, Plaintiff S.J. lost the ability to walk, and since then, she has

11 become increasingly disabled due to progressive deterioration from the disease. Plaintiff S.J.’s

12 medical conditions also include weekly seizures, osteo and rheumatoid arthritis, sleep apnea,

13 chronic obstructive pulmonary disease, emphysema, past strokes, asthma, chronic pain, a frozen

14 shoulder, orofacial dyskinesia, Fragile X Syndrome, depression, and post-traumatic stress

15 disorder.

16

4.5.2 Defendant DSHS deemed Plaintiff S.J. eligible for Medicaid personal care

17 services through the MPC program. Plaintiff S.J. requires assistance with most of the activities

18 of daily living, including mobility, use of a wheelchair, turning in bed, medication management,

19 personal hygiene, toileting, getting dressed, cooking, and eating. Plaintiff S.J.’s Individual

20 Provider, who is not related to her, also assists her with necessary therapies, including oxygen

21 therapy and range of motion exercises to prevent atrophy of her muscles, ensures that she does

22 not choke or develop pressure sores, and monitors her for seizures. With personal care

23 assistance, Plaintiff S.J. is able to live in her own home, which enables her to maintain her sense

24 of privacy and independence, to be part of her community, and to make her own decisions

25 regarding matters such as her schedule.

26

4.5.3 Defendant DSHS assessed Plaintiff S.J. to have a medical necessity of 162

27 personal care service hours per month. Nonetheless, during the week of December 6, 2010,

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 21
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 22 of 50

1 Defendant DSHS notified Plaintiff S.J. that, beginning January 1, 2011, it plans to cut her

2 personal care service hours by 17 hours per month to 145 hours, a reduction of 11.5%. These

3 cuts are in addition to other cuts made in November 2009, March 2010, and June 2010: Since

4 the beginning of 2009, Plaintiff S.J.’s home care hours have been reduced from 180 hours to 145

5 hours per month – a total reduction of 20%.

6

4.5.4 Plaintiff S.J. has no other resources or family members to make up for the

7 reduction in needed care, and the reduction in hours will harm Plaintiff S.J.’s health and almost

8 certainly force her to move into a nursing facility. S.J.’s Individual Provider has already notified

9 Plaintiff S.J.’s DSHS case manager that, due to reductions in her home care hours, he will no

10 longer be able to provide care for her as of January 3, 2011, and has asked that Plaintiff S.J. be

11 moved into a nursing home. The reduced hours will not permit Plaintiff S.J. to receive adequate

12 care and would endanger S.J.’s her health and life. Plaintiff S.J. would prefer to remain in her

13 own home, and if forced to live in an institutional setting, she will experience separation from

14 her friends and community, as well as loss of independence, autonomy, and the ability to make

15 her own choices, which will most likely negatively impact her mental and physical health.

16

4.6 Factual Allegations Related to Plaintiff C.B.

17

4.6.1 Plaintiff C.B. is 55 years old and has been physically disabled since 1988,

18 when she contracted a flesh-eating bacteria which eventually caused an infection that spread to

19 her vital organs. Plaintiff C.B. has also developed many other physical conditions, including

20 spinal stenosis and shoulder problems, for which she has had surgery, congestive heart failure,

21 emphysema, Hepatitis, and nerve damage. Plaintiff C.B. also has mental health conditions,

22 including depression, bipolar disorder, and anxiety.

23

4.6.2 Defendant DSHS deemed Plaintiff C.B. eligible for Medicaid personal

24 care services through the COPES program. Plaintiff C.B. requires assistance with most of the

25 activities of daily living, including walking or use of a wheelchair, turning in bed, personal

26 hygiene, getting dressed, cooking, essential shopping, and cleaning. Regular housecleaning is

27 especially necessary to preserve Plaintiff C.B.’s health due to her bacterial infection and

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 22
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 23 of 50

1 emphysema. Plaintiff C.B. currently is cared for by an Agency Provider who is not related to her.

2 With personal care assistance, Plaintiff C.B. is able to live in her own home, which enables her

3 to maintain her relationships with friends and neighbors and preserves her sense of personal

4 space, control, and independence.

5

4.6.3 Defendant DSHS assessed Plaintiff C.B. to have a medical necessity of

6 133 personal care service hours per month. Nonetheless, Defendant DSHS has notified Plaintiff

7 C.B. that, beginning January 1, 2011, it plans to cut her personal care service hours by 18 hours

8 per month to 115 hours, a reduction of 13.5%.

9

4.6.4 Plaintiff C.B. has no other resources or family members to make up for the

10 reduction in needed care, and the reduction in hours will harm Plaintiff C.B.’s health. There will

11 be reductions in time spent maintaining personal hygiene and household cleanliness, which will

12 exacerbate Plaintiff C.B.’s health conditions. Plaintiff C.B.’s provider also will be forced to

13 cook fewer meals and may lack time to transport Plaintiff C.B. to and from doctor’s visits.

14 C.B.’s provider may also be forced to find a different job to earn sufficient income, which would

15 cause a disruption in the continuity of care.

16

4.6.5 Plaintiff C.B. faces a serious risk that she will be unable to remain in her

17 home if her home care hours are cut. Plaintiff C.B. has had bad experiences in nursing homes,

18 which included unsanitary conditions, inadequate hygiene practices, unresponsiveness, and rigid

19 meal and medication schedules. If Plaintiff C.B. is forced to return to an institutional setting,

20 her health will also likely deteriorate due to separation from her friends and pets.

21

4.7 Factual Allegations Related to Plaintiff D.W.

22

4.7.1 Plaintiff D.W. is 47 years old and disabled, and has been diagnosed with

23 several physical conditions, including Acquired Immunodeficiency Syndrome (AIDS),

24 Cytomegalovirus (CMV) retinitis and general loss of vision related to AIDS, heart failure related

25 to an enlarged heart, osteoarthritis resulting in problems with shoulders and knees, a

26 degenerative bone disease, testicular dysfunction, obesity, and neuropathy and edema in his feet.

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 23
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 24 of 50

1 Plaintiff D.W. has also been diagnosed with several mental health conditions, including

2 depression, frequent suicidal ideations, personality disorder, and bipolar disorder.

3

4.7.2 Defendant DSHS deemed Plaintiff D.W. eligible for Medicaid personal

4 care services through the MPC program. Plaintiff D.W. requires assistance with most of the

5 activities of daily living, including walking, traveling to and from doctor’s appointments,

6 personal hygiene, getting dressed, using the bathroom, medication management, cooking, eating,

7 essential shopping, and cleaning. Plaintiff D.W. currently is cared for by an Agency Provider

8 who is not related to him. With personal care assistance, Plaintiff D.W. is able to live in his own

9 home, which protects his privacy, gives him the flexibility to adjust his schedule as needed, and

10 enables him to maintain his personal relationships and the companionship of his pet dog.

11

4.7.3 Defendant DSHS assessed Plaintiff D.W. to have a medical necessity of

12 133 personal care service hours per month. Nonetheless, Defendant DSHS has notified Plaintiff

13 D.W. that, beginning January 1, 2011, it plans to cut his personal care service hours by 18 hours

14 per month to 115 hours, a reduction of 13.5%.

15

4.7.4 Plaintiff D.W. has no other resources or family members to make up for

16 the reduction in needed care, and the reduction in hours will harm Plaintiff D.W.’s health.

17 Plaintiff D.W. is at risk of missing critical medications, falling, or choking during periods when

18 he is alone, and he will experience greater difficulty keeping doctor’s appointments and engaging

19 in healthy activities.

20

4.7.5 Plaintiff D.W. faces a serious risk that he will be unable to remain in his

21 home if his home care hours are cut. Plaintiff D.W. had a bad experience when he previously

22 lived in an adult family home, due to the loss of privacy, inflexible routine, and lack of food

23 choices. If forced to return to an institutional care facility, Plaintiff D.W. will be isolated from

24 his friends and his pet, and the continuity of care provided by his Agency Provider will be

25 disrupted.

26

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 24
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 25 of 50

1

4.8 Factual Allegations Related to Plaintiff A.B.

2

4.8.1 Plaintiff A.B. is 32 years old and her disabilities include Down Syndrome,

3 Mental Retardation, Multiple Sclerosis, Autism, Depression, Echolalia, and Hypothyroidism.

4 She is developmentally at the level of an eighteen month-old child, and appears in this action

5 through her mother and guardian Jane Brown. Plaintiff A.B. is not able to appear on her own

6 behalf in this litigation.

7

4.8.2 Defendant DSHS deemed Plaintiff A.B. eligible for Medicaid personal

8 care services and in need of 185 hours per month. Plaintiff A.B. requires assistance with most of

9 the activities of daily living, including toileting, dressing, eating, bathing, walking, and

10 medication management. She must be monitored while eating and drinking in order to avoid

11 choking, cannot bathe herself, needs assistance with perineal care, requires subcutaneous

12 injections, cannot swallow pills, and when her Multiple Sclerosis flares up is unable to walk and

13 requires use of a catheter for a period of weeks. A.B. also has behavior and mood issues that

14 make her care difficult and make her vulnerable to exploitation.

15

4.8.3 With personal care assistance, Plaintiff A.B. is able to live in her own

16 home, with her mother and siblings, in a familiar setting where she enjoys freedom of choice in

17 her schedule and activities and can stay connected with her religious community. In particular,

18 A.B. enjoys quiet time with her siblings, visits with a friend, going to the park, and swimming.

19

4.8.4 Defendant DSHS has notified Plaintiff A.B. that, beginning January 1,

20 2011, it plans to cut her personal care service hours by 19 hours per month to 166 hours, a

21 reduction of 10.3%.

22

4.8.5 Plaintiff A.B. has no other resources or family members that can make up

23 for the reduction in needed care. A.B.’s mother is disabled and physically unable to cover any

24 lost home care hours. The reduction in hours will place A.B. at great risk of declining health

25 including skin breakdowns, illness, hospitalization, and aggravation of behavioral and mood

26 issues, as well as institutionalization.

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 25
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 26 of 50

1

4.8.6 If A.B. were admitted to a nursing home, her medical condition and

2 quality of life would deteriorate. She cannot communicate her needs to others, has a high risk of

3 choking that requires extensive oversight while eating or drinking, and her depression and

4 anxiety would likely be aggravated.

5

4.9 Factual Allegations Related to Plaintiff M.B.

6

4.9.1 Plaintiff A.B. is 28 years old and his disabilities include Down Syndrome,

7 Insulin Dependent Diabetes, Hypothyroidism, Agoraphobia, Depression, Sleep Apnea,

8 Oppositional Defiant Disorder, and Anxiety Disorder. He has the developmental and cognitive

9 abilities of a two-year-old child. He appears in this action through his mother and guardian Jane

10 Brown. Plaintiff M.B. is not able to appear on his own behalf in this litigation.

11

4.9.2 Defendant DSHS deemed Plaintiff M.B. eligible for Medicaid personal

12 care services and in need of 146 hours per month. Plaintiff M.B. requires assistance with most of

13 the activities of daily living, including toileting, dressing, eating, bathing, walking, blood glucose

14 monitoring, personal hygiene, and medication management. He requires twice daily

15 subcutaneous injections, assistance communicating, supervision to prevent him from engaging in

16 dangerous physical activities, and monitoring while toileting and eating. M.B. also has behavior

17 and mood issues that make his care difficult.

18

4.9.3 With personal care assistance, Plaintiff M.B. is able to live in his own

19 home, with his mother and siblings, in a familiar setting where he enjoys freedom of choice in is

20 schedule and activities and can stay connected with his religious community. In particular, M.B.

21 enjoys looking at comic books and swimming with his siblings, and becomes agitated and scared

22 when family members are not around.

23

4.9.4 Defendant DSHS has notified Plaintiff M.B. that, beginning January 1,

24 2011, it plans to cut his personal care service hours by 20 hours per month to 126 hours, a

25 reduction of 13.7%.

26

4.9.5 Plaintiff M.B. has no other resources or family members that can make up

27 for the reduction in needed care. M.B.’s mother is disabled and physically unable to cover any

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 26
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 27 of 50

1 lost home care hours. The reduction in hours will place M.B. at great risk of declining health

2 including skin breakdowns, illness, hospitalization, and aggravation of behavioral and mood

3 issues, as well as institutionalization.

4

4.9.6 If M.B. were admitted to a nursing home, his agoraphobia, depression,

5 anxiety, and Oppositional Defiance Disorder would cause serious negative social and

6 psychological ramifications and his quality of life would suffer.

7

4.10 Factual Allegations Related to Plaintiff An.B.

8

4.10.1 Plaintiff An.B. is 26 years old and his disabilities include Cerebral Palsy,

9 Mental Retardation, Epilepsy and Enocarditis. He is developmentally and cognitively

10 approximately 10 to 12 years old. He appears in this action through his mother and guardian

11 Jane Brown. Plaintiff An.B. is not able to appear on his own behalf in this litigation.

12

4.10.2 Defendant DSHS deemed Plaintiff An.B. eligible for Medicaid personal

13 care services and in need of 82 hours per month. Plaintiff An.B. requires assistance with

14 activities of daily living including toileting, bathing, monitoring for seizures, and obtaining

15 emergency assistance. His cognitive challenges require assistance in making decisions,

16 navigating outside his home, and staying safe. An.B. also has behavior and mood issues that

17 make his care difficult.

18

4.10.3 With personal care assistance, Plaintiff An.B. is able to live in his own

19 home, with his mother and siblings, in a familiar setting where he enjoys freedom of choice in

20 his schedule and activities and can stay connected with his religious community. In particular,

21 An.B. enjoys being the “big brother” and helping his mother around the house, as well as taking

22 care of the family pets.

23

4.10.4 Defendant DSHS has notified Plaintiff A.B. that, beginning January 1,

24 2011, it plans to cut his personal care service hours by 14 hours per month to 68 hours, a

25 reduction of 17.1%.

26

4.10.5 Plaintiff An.B. has no other resources or family members that can make up

27 for the reduction in needed care. An.B.’s mother is disabled and physically unable to cover any

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 27
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 28 of 50

1 lost home care hours. The reduction in hours will place An.B. at great risk of declining health

2 including skin breakdowns, illness, hospitalization, and aggravation of behavioral and mood

3 issues, as well as institutionalization.

4

4.10.6 If An.B. were admitted to a nursing home, his condition and quality of life

5 would deteriorate. His inability to use his arm, uncertain gait, short-term memory loss, and

6 seizures demand constant monitoring that he would not likely obtain in a care facility, and his

7 quality of life would decline.

8

4.11 Factual Allegations Related to Plaintiff J.B.

9

4.11.1 Plaintiff J.B. is 24 years old and her disabilities include Down Syndrome,

10 Sleep Apnea, Depression, Cataracts, Anxiety Disorder, and hearing loss. She is developmentally

11 and cognitively between three and six years of age, and appears in this action through her mother

12 and guardian Jane Brown. Plaintiff J.B. is not able to appear on her own behalf in this litigation.

13

4.11.2 Defendant DSHS deemed Plaintiff J.B. eligible for Medicaid personal care

14 services and in need of 82 hours per month. Plaintiff J.B. requires assistance with many of the

15 activities of daily living, including toileting, dressing, maintaining personal hygiene, eating, and

16 bathing. She cannot bathe herself, needs assistance with perineal care and CPAP operation,

17 needs help with medication management, and requires assistance with communication. J.B. also

18 has behavior and mood issues that make her care difficult.

19

4.11.3 With personal care assistance, Plaintiff J.B. is able to live in her own

20 home, with her mother and siblings, in a familiar setting where she enjoys freedom of choice in

21 her schedule and activities and can stay connected with her religious community. In particular,

22 J.B. enjoys helping around the house with chores and cooking breakfast, writing from books,

23 drawing pictures, and performing to entertain her family.

24

4.11.4 Defendant DSHS has notified Plaintiff J.B. that, beginning January 1,

25 2011, it plans to cut her personal care service hours by 14 hours per month to 68 hours, a

26 reduction of 17.1%.

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 28
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 29 of 50

1

4.11.5 Plaintiff J.B. has no other resources or family members that can make up

2 for the reduction in needed care. J.B.’s mother is disabled and physically unable to cover any

3 lost home care hours. The reduction in hours will place J.B. at great risk of declining health

4 including skin breakdowns, illness, hospitalization, and aggravation of behavioral and mood

5 issues, as well as institutionalization.

6

4.11.6 If J.B. were admitted to a nursing home, her medical condition and quality

7 of life would deteriorate. The disruption would likely trigger her depression and anxiety and

8 increase her aggressive and inappropriate behavior, and she would not likely be supervised to

9 keep her safe.

10

4.12 Factual Allegations Related to Plaintiff K.S.

11

4.12.1 Plaintiff K.S. is 59 years old and disabled. K.S. has very limited mobility

12 because she has had knee and hip replacement, and she also has several medical and psychiatric

13 conditions including diabetes, congenital glaucoma, macular degeneration, clinical depression,

14 schizo-effective disorder, obsessive-compulsive disorder, paranoia, and chronic insomnia.

15

4.12.2 Defendant DSHS deemed Plaintiff K.S. eligible for Medicaid personal

16 care services through the COPES program. Plaintiff K.S. requires assistance with most of the

17 activities of daily living, including moving about her home, personal hygiene, getting dressed,

18 using the bathroom, medication management, meal planning and cooking, essential shopping,

19 and cleaning.

20

4.12.3 Plaintiff K.S. currently is cared for by two Agency Providers who are not

21 related to her. With personal care assistance, Plaintiff K.S. is able to live in her own apartment,

22 which gives her a sense of independence and protects her privacy. Regular interaction with her

23 providers also provides Plaintiff K.S. with peace of mind.

24

4.12.4 Defendant DSHS assessed Plaintiff K.S. to have a medical necessity of

25 133 personal care service hours per month. Nonetheless, Defendant DSHS has notified Plaintiff

26 K.S. that, beginning January 1, 2011, it plans to cut her personal care service hours by 18 hours

27 per month to 115 hours, a reduction of 13.5%.

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 29
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 30 of 50

1

4.12.5 Plaintiff K.S. has no other resources or family members to make up for the

2 reduction in needed care, and the reduction in hours will harm Plaintiff K.S.’s health. Plaintiff

3 K.S. is at risk of missing critical medications and falling, and will be by herself for days in a row

4 without any provider checking to see that she is okay.

5

4.12.6 Plaintiff K.S. faces a serious risk that she will be unable to remain in her

6 home if her home care hours are cut. Plaintiff K.S. has had bad experiences when she previously

7 lived in an adult group home, which made her feel that she lost her independence and dignity.

8 Plaintiff K.S. believes that her mental health condition will deteriorate if she is forced to return to

9 living in an adult group home.

10

4.13 Factual Allegations Related to Plaintiff T.M.

11

4.13.1 Plaintiff T.M., who is 38 years old, appears in this action through his

12 mother, legal guardian, and next friend, Donna Hays, who is also T.M.’s Individual Provider.

13 Plaintiff T.M. is not able to appear on his own behalf in this litigation.

14

4.13.2 Plaintiff T.M. has Down Syndrome; visual, speech, and hearing

15 impairments; and Gout. He has no fine motor skills and the mental development of a seven to

16 nine year old child.

17

4.13.3 Defendant DSHS deemed Plaintiff T.M. eligible for Medicaid personal

18 care services and assessed him to have a medical necessity of 83 hours per month of personal

19 care services. Plaintiff T.M. requires assistance with many of the activities of daily living,

20 including hygiene, toileting, dressing, meal preparation, eating, medication management,

21 transportation, shopping, and housework. With personal care assistance, Plaintiff T.M. is able to

22 live in his own home, which enables him to maintain close relationships with his siblings and

23 other relatives, spend time with friends and neighbors, and attend church and other community

24 outings.

25

4.13.4 During the week of December 6, 2010, Defendant DSHS notified Plaintiff

26 T.M. that, beginning January 1, 2011, it plans to cut his personal care service hours by 14 hours

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 30
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 31 of 50

1 per month to 69 hours, a reduction of 16.8%. This reduction is in addition to 13 hours of cuts in

2 2009.

3

4.13.5 The reduction set to take effect will place T.M. at serious risk of

4 institutionalization, because the reduced hours will be insufficient to provide care for T.M.

5 sufficiently to control his behavioral and emotional swings, and his family does not have

6 resources to replace these hours. If T.M. enters an institutional care facility, he will deteriorate.

7 His speech and hearing impairment make it very difficult for him to communicate with others

8 and for people to understand him and it is very likely that T.M. will become contrary, get

9 confused, quit talking, sulk, and isolate himself. He will also miss being close to his family and

10 be unable to participate in community and social activities in the outside world, resulting in

11 serious depression.

12

4.14 Factual Allegations Related to Plaintiff A.R.

13

4.14.1 Plaintiff A.R., who is 63 years old, appears in this action through her

14 mother and next friend, Lucille Frederick, who has power of attorney over her affairs.

15

4.14.2 Plaintiff A.R. is severely disabled due to several strokes. She is paralyzed

16 on her right side and blind in her right eye, and requires total assistance with her regular daily

17 activities (such as bathing, cooking, eating, moving, exercising, and toileting).

18

4.14.3 Plaintiff A.R. is not able to appear on her own behalf to litigate this action

19 because she also suffers from aphasia and memory problems, which prevent her from

20 understanding the nature of the action or communicating about it with others.

21

4.14.4 Defendant DSHS deemed Plaintiff A.R. eligible for Medicaid personal

22 care services through the COPES program. Plaintiff A.R. receives home care services from a

23 combination of Independent and Agency Providers.

24

4.14.5 Defendant DSHS assessed Plaintiff A.R. to have a medical necessity for

25 323 hours of personal care services a month. Nonetheless, Defendant DSHS has notified A.R.

26 that, effective January 1, 2011, it plans to cut her personal care service hours by 14 hours per

27 month, a reduction of 4%.

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 31
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 32 of 50

1

4.14.6 Because Plaintiff A.R. cannot get out of bed, walk, or exercise without

2 assistance from a home care provider, if her personal care services hours are reduced, there is a

3 grave risk that she will be forced either to enroll in a nursing home or to go without needed

4 services, which will result in serious health deterioration. There is also a serious risk that A.R.’s

5 providers will have to quit in order to find employment that provides sufficient income, and that

6 Ms. Frederick will be unable to find home care providers who are strong enough to lift A.R. and

7 provide the mobility and exercise assistance necessary to preserve her health.

8

4.14.7 If Plaintiff A.R. is forced to enroll in a nursing home, she will be separated

9 from her loved ones and suffer a loss of autonomy, and there is a serious risk of depression and

10 further deterioration of her mental function.

11

4.15 Factual Allegations Related to Plaintiff M.J.B.

12

4.15.1 Plaintiff M.J.B. is 94 years old and appears in this action through her niece

13 and next friend, Karen Paolino, who has power of attorney over her affairs. Plaintiff M.J.B. is

14 not able to appear on her own behalf in this litigation.

15

4.15.2 Plaintiff M.J.B. is blind and suffers from dementia, Parkinson’s disease,

16 chronic obstructive pulmonary disease, congestive heart failure, and diabetes. Plaintiff M.J.B.

17 cannot live independently without assistance with activities of daily living, including eating,

18 cooking, walking, using the bathroom, and managing her medications.

19

4.15.3 Defendant DSHS deemed Plaintiff M.J.B. eligible for Medicaid personal

20 care services through the COPES program. Ms. Paolino works as the primary personal care

21 provider for M.J.B. seven days a week. Personal care assistance enables Plaintiff M.J.B. to stay

22 in the home she has lived in for many years, close to her loved ones and with the company of her

23 pet cats.

24

4.15.4 Defendant DSHS assessed Plaintiff M.J.B. to have a medical necessity for

25 184 hours of personal care services a month. Nonetheless, Defendant DSHS has notified M.J.B.

26 that, beginning January 1, 2011, it plans to cut her personal care service hours by 18 hours per

27 month, a reduction of 10%.

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 32
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 33 of 50

1

4.15.5 If this reduction takes effect, Plaintiff M.J.B. will have to go into a nursing

2 home, because M.J.B. needs more than 166 hours per month of care, Ms. Paolino will be unable

3 to care for M.J.B. beyond the allotted hours, and Ms. Paolino will likely be forced to stop

4 working as M.J.B.’s personal care provider because she will not earn sufficient income to

5 support her aunt and her own household.

6

4.15.6 While moving Plaintiff M.J.B. to a nursing home may be the only option,

7 this would have a devastating impact on M.J.B. Moving out of her home to a new location

8 would be very difficult for her because she is blind and elderly. There is also a serious risk that

9 M.J.B.’s mental condition will deteriorate if she is separated from her loved ones and pets, and is

10 instead cared for by providers or nursing home staff with whom she is unfamiliar.

11

4.16 Factual Allegations Related to Plaintiff J.H.

12

4.16.1 Plaintiff J.H. is 70 years old, and has disabilities due to a series of strokes

13 suffered seven years ago. He appears in this action through his next friend and former

14 Independent Provider, Donna Hayes, who has power of attorney over his affairs. Plaintiff J.H. is

15 not able to appear on his own behalf in this litigation.

16

4.16.2 The strokes left J.H. paralyzed on his left side and unable to breathe

17 without a breathing machine. J.H. is also a diabetic who requires frequent blood sugar

18 monitoring, is hypertensive and has skin problems. He additionally has Alzheimer’s Disease,

19 chronic heart disease, Osteoarthritis, and cannot live independently.

20

4.16.3 Defendant DSHS deemed Plaintiff J.H. eligible for Medicaid personal care

21 services through the COPES program. Plaintiff J.H. requires assistance with most of the

22 activities of daily living, including meal preparation, eating (often including spoon feeding),

23 transportation to medical appointments, housework, management, insulin injections, blood

24 pressure monitoring, dressing, personal hygiene and bathing, range of motion exercises, getting

25 into bed, positioning in bed, walking/locomotion within the home, application of lotion and

26 ointment, essential shopping, and toileting including frequent clean-up from accidents.

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 33
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 34 of 50

1

4.16.4 Defendant DSHS assessed Plaintiff J.H. to have a medical necessity of

2 176 personal care service hours per month. Nonetheless, during the week of December 6, 2010,

3 Defendant DSHS notified Plaintiff J.H. that beginning January 1, 2011, it plans to cut his

4 personal care service hours by 16 hours per month to 158 hours, a reduction of 10.3%.

5

4.16.5 Because of this impending reduction, Ms. Hayes was forced to arrange for

6 J.H. to enter a nursing home on December 14. J.H. did not want to go into a nursing home.

7 However, it is not possible to provide a safe level of care for J.H. in 158 hours per month, and

8 Ms. Hayes could not afford to provide the level of unpaid care that would be necessary to keep

9 him safe.

10

4.17 Factual Allegations Related to Plaintiff H.C.

11

4.17.1 Plaintiff H.C. is a 92-year-old World War II veteran who has Alzheimer's

12 Disease, chronic heart disease, and osteoarthritis. His cognitive impairment causes short term

13 memory problems, disorientation, and delayed recall. He appears in this action through his son

14 and guardian Lee Chatwin. Plaintiff H.C. is not able to appear on his own behalf in this

15 litigation.

16

4.17.2 Defendant DSHS deemed Plaintiff H.C. eligible for Medicaid personal

17 care services through the COPES program. Plaintiff H.C. requires assistance with most of the

18 activities of daily living, including eating, toileting (including frequent incontinence), bathing

19 (requiring physical support as well as assistance in washing), maintaining personal hygiene,

20 dressing, walking, and medication management. He is susceptible to falling, he requires daily

21 and sometimes more frequent oxygen administration, and his behavior and mood issues create

22 additional challenges in providing care

23

4.17.3 With personal care assistance, Plaintiff H.C. is able to live in his own

24 home, which enables her to maintain his autonomy and avoid the disorientation caused by new

25 situations and people.

26

4.17.4 Defendant DSHS assessed Plaintiff H.C. to have a medical necessity of

27 116 personal care service hours per month. Nonetheless, Defendant DSHS has notified Plaintiff

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 34
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 35 of 50

1 H.C. that, beginning January 1, 2011, it plans to cut his personal care service hours by 16 hours

2 per month to 100 hours, a reduction of 13.8%.

3

4.17.5 Plaintiff H.C. has no other resources or family members to make up for

4 the reduction in needed care, and the reduction in hours will force H.C.’s son to move him into a

5 nursing home within a matter of months. Nursing home entry will diminish H.C.’s quality of life

6 because he will lose daily contact with the son he recognizes and loves, enjoy less autonomy and

7 fewer choices, and experience more memory loss and disorientation when faced with new

8 situations and changing caregivers.

9

4.18 Factual Allegations Related to Plaintiff The Arc of Washington State

10

4.18.1 Plaintiff The Arc is a non-profit organization with the mission of

11 advocating for the rights of individuals with developmental disabilities.

12

4.18.2 The Arc advocates that all people with developmental disabilities have a

13 right to live in communities of their choosing and be fully included with people who do not have

14 disabilities, and that the Medicaid program must provide funding to ensure that such individuals

15 have adequate supports to make that community living possible.

16

4.18.3 The members of The Arc include individuals with developmental

17 disabilities, their families, professionals, and other members of the community concerned about

18 protecting the rights of people with developmental disabilities. Among those members are

19 individuals who receive Medicaid in-home personal care services and whose personal care hours

20 will be reduced by ten percent effective January 1, 2011, as well as the parents or guardians of

21 such individuals.

22

4.18.4 The Arc brings this suit on behalf of its members who will be injured if

23 recipients of in-home personal care services have their hours of service reduced. These members

24 would have standing to sue in their own right, and their personal participation in this litigation is

25 not necessary.

26

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 35
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 36 of 50

1

4.19 Factual Allegations Related to Plaintiff SEIU

2

4.19.1 Plaintiff SEIU is an unincorporated association with members that include

3 approximately 39,000 Independent Providers and Agency Providers in Washington State who

4 provide in-home personal care services through the MPC, COPES, and/or other programs.

5

4.19.2 Some members of SEIU provide services for their adult children, siblings,

6 parents, or other family members for whom they also serve as guardians.

7

4.19.3 SEIU participates at every level in policy setting around long term care in

8 Washington State, including active work with the Legislature and as a stakeholder in Executive

9 and Department of Social and Health Services project work.

10

4.19.4 SEIU has for decades been an advocate for increased access to and quality

11 of in-home personal care services for all recipients, including representing the interests of its

12 members who are guardians of in-home personal care services recipients.

13

4.19.5 It is part of SEIU’s mission to advocate for the needs of home care

14 providers and clients in the Washington State personal care services program.

15

4.19.6 SEIU brings this suit on behalf of its members who will lose income when

16 the hours of service they provide are reduced.

17

4.19.7 SEIU also brings this suit on behalf of its members who will be injured if

18 recipients of in-home personal care services (including recipients whose guardians are SEIU

19 members) have their hours of service reduced. These members would have standing to sue in

20 their own right, and their personal participation in this litigation is not necessary.

21

4.20 Factual Allegations Related to Plaintiff PSARA

22

4.20.1 Plaintiff PSARA is a nonprofit association and an affiliate of the national

23 Alliance for Retired Americans and the Washington Alliance for Retired Americans.

24

4.20.2 The mission of the PSARA is to ensure social and economic justice and

25 full civil rights for all individuals so that they may enjoy lives of dignity, personal and family

26 fulfillment, and security. That includes promoting policies that support the availability of

27

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 36
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 37 of 50

1 publicly funded, high quality home and community-based services, which enable aging

2 individuals to live in dignity in their own homes and avoid unwanted nursing home entry.

3

4.20.3 PSARA has approximately 1,000 members, primarily in the Puget Sound

4 area, who pay membership dues. Some of PSARA’s members will be affected by the 10% cut to

5 home-based personal care services that is set to take effect on January 1, 2011, because they

6 receive such services, their hours of service will be reduced, and that reduction will have adverse

7 effects on their physical, mental, and/or financial well being.

8

4.20.4 PSARA brings this suit on behalf of its members who will be injured if

9 recipients of in-home personal care services (including recipients whose guardians are PSARA

10 members) have their hours of service reduced. These members would have standing to sue in

11 their own right, and their personal participation in this litigation is not necessary.

12

4.21 Class Action Allegations

13

4.21.1 Beneficiary Plaintiffs, including Plaintiffs M.R., S.J., C.B., D.W., A.B.,

14 M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., (hereinafter “Representative Plaintiffs”)

15 bring the First, Second, Third, Fourth, Fifth, Sixth, and Seventh Claims for declaratory and

16 injunctive relief on behalf of themselves and the following Plaintiff Class of all other persons

17 similarly situated, defined as:

18

Medicaid-eligible individuals in the State of Washington living at home who were

assessed to need personal care services based upon individualized CARE

19

assessments of their needs and who received these Medicaid services in

accordance with their assessment until DSHS reduced their services to below their

20

level of need for budgetary reasons alone on January 1, 2011.

21

4.21.2 Beneficiary Plaintiffs, including Plaintiffs M.R., S.J., C.B., D.W., A.B.,

22 M.B., An.B, J.B., K.S., T.M., A.R., M.J.B., J.H., H.C., bring the Eighth Claim for declaratory

23 and injunctive relief on behalf of themselves and the following Plaintiff Subclass of all other

24 persons similarly situated, defined as:

25

All recipients of home care services in the State of Washington who receive home

care services through a Section 1915(c) or 1915(d) waiver program, or who

26

receive home care services under the State Plan but are also be eligible to receive

such services through a Section 1915(c) or (d) waiver program, including, but not

27

limited to, through the Community Options Program Entry System (“COPES”),

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1

the Medically Needy In Home Waiver (“MNIH”), and various waivers operated

by the Division of Developmental Disabilities (“DDD”) for individuals who

2

qualify for care in an Intermediate Care Facility for the Mentally Retarded (“ICF-

MR”).

3 4.21.3 This action is properly maintained as a class action under Civil Rule 23(a)

4 and (b)(2).

5 4.21.4 There are in excess of 35,000 persons in the Class and Subclass. The

6 Class and Subclass are so numerous that joinder of all members is impracticable.

7 4.21.5 There are questions of law and fact common to the Class and Subclass

8 related to the termination, reduction, or delay of their Medicaid benefits, which is a system wide

9 policy or practice that affects all Class and Subclass members. These common questions

10 include:

11 4.21.5.1 Do Defendants’ budget-based reduction of in-home personal

12 care Medicaid services to which Plaintiffs were individually assessed to need and qualify,

13 effective January 1, 2011, without individualized CARE reassessments, their provision of a

14 misleading and inaccurate notice, their failure to transition Plaintiffs to adequate replacement

15 Medicaid services, and their failure to provide due process notice and an opportunity to pre-cut

16 fair hearing, deny Plaintiffs their constitutionally protected right to due process guaranteed by 42

17 U.S.C. § 1983, the Fourteenth Amendment to the Constitution, and the Medicaid program, Title

18 XIX of the Social Security Act, Title 42 § 1396a, et seq., and its implementing regulations?

19 4.21.5.2 Do Defendants’ reduction of Plaintiffs’ Medicaid long-term

20 care services provided at home through the MPC, COPES, MNIW, DDD, and other Medicaid

21 programs condition the receipt of required Medicaid services on segregation in a nursing home

22 or other institutional facility and violate the Americans with Disabilities Act (“ADA”) and

23 Section 504 of the Rehabilitation Act (“Section 504”) which prohibit discrimination on the basis

24 of disability and unjustified institutionalization and require Defendants to administer services

25 and programs in the most integrated setting appropriate to the needs of the individual with

26 disabilities?

27

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1

4.21.5.3 Do Defendants’ elimination or reduction of Plaintiffs’

2 Medicaid long term care services provided at home through the MPC, COPES, MNIW, DDD,

3 and other Medicaid programs to levels below their individually assessed need for services violate

4 the Medicaid Act’s requirements of reasonable standards, sufficiency, comparability, free choice,

5 and CMS approval of plan and waiver amendments?

6

4.21.6 The claims of Representative Plaintiffs are typical of the claims of the

7 Class and Subclass. Representative Plaintiffs are Washington State residents and qualified

8 persons with disabilities who seek to remain living in their homes and receive the Medicaid

9 skilled nursing and rehabilitation services they require.

10

4.21.7 Representative Plaintiffs will fairly and adequately protect the interests of

11 all Class and Subclass members.

12

4.21.8 Representative Plaintiffs are members of the Class and Subclass, their

13 ability to remain in their homes, where they prefer to live, is at stake in this action, as is their

14 ability to receive the Medicaid services they require after January 1, 2011. Their interests are

15 coincident with, and not antagonistic to, those of the other members of the Class and Subclass.

16

4.21.9 Representative Plaintiffs have retained counsel experienced with the

17 relevant civil rights, disability and Medicaid law and class action litigation.

18

4.21.10

Prosecution of separate actions by individual Class and Subclass

19 members would create a risk of inconsistent or varying adjudications with respect to individual

20 Class and Subclass members or could as a practical matter be dispositive of the interests of the

21 other members or substantially impair or impede their ability to protect their interests.

22

4.21.11

The Defendant’s actions have affected and will affect the class

23 generally, thereby making appropriate final and injunctive and declaratory relief with respect to

24 the Class and Subclass as a whole.

25

26

27

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1

V. CAUSES OF ACTION

2

5.1 VIOLATION OF DUE PROCESS RIGHTS (First Claim for Relief)

3

5.1.1 Plaintiffs are Medicaid-eligible individuals who have been found by

4 DSHS to qualify for in-home personal care services provided under the Department’s MPC,

5 COPES, MNIW, DDD, and other Medicaid programs.

6

Each of the Plaintiffs have been assessed by DSHS to require nursing facility level of

7 services, or they would qualify for nursing facility level of services, if assessed. The Plaintiffs

8 have chosen to live at home, in the most integrated setting appropriate to their needs and

9 circumstances, in reliance upon DSHS’s award of a certain number of in-home personal care

10 service hours a month, as generated by the individualized CARE assessment process.

11

5.1.2 Plaintiffs are entitled to long-term personal care Medicaid services,

12 including nursing facility care, consistent with the requirements identified in the federal law and

13 the State Medicaid Plan.

14

5.1.3 Plaintiffs, as Medicaid recipients, are entitled to continued Medicaid

15 benefits in the amount awarded until they are found to be ineligible. 42 CFR 435.930(b). After

16 notice, if a beneficiary requests a hearing, those benefits cannot be denied until after a fair

17 hearing. 42 CFR 431.230.

18

5.1.4 Defendants issued a misleading and inaccurate notice reducing Plaintiffs’

19 home-based personal care Medicaid services, failed to transition Plaintiffs to adequate

20 replacement services in the community or in institutional settings, and reduced the Medicaid

21 services for which they were assessed to qualify and received, without conducting reassessments

22 of the Plaintiffs or their eligibility for services, without timely and adequate notice detailing the

23 reasons for the proposed action, without continued benefits pending a pre-termination hearings,

24 and without fair and impartial pre-termination hearings, in violation of their constitutionally

25 protected right to due process guaranteed by 42 U.S.C. § 1983, the Fourteenth Amendment to the

26 Constitution, and the Medicaid program, Title XIX of the Social Security Act, Title 42 § 1396a,

27 et seq., and its implementing regulations.

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1

5.2 DISCRIMINATION IN VIOLATION OF THE AMERICANS WITH

2

DISABILITIES ACT (Second Claim for Relief)

3

5.2.1 Plaintiffs are individuals with disabilities in that they have physical,

4 mental or other impairments that substantially limit one or more of their major life activities,

5 including, but not limited to walking, speaking, standing, and engaging in activities of daily

6 living.

7

5.2.2 Plaintiffs are qualified persons with disabilities in that they are capable of

8 safely living at home and in other community-based residential settings and they meet the

9 essential eligibility requirements for the receipt of services from and participation in the State

10 Medicaid program with reasonable modification to the rules, policies, and practices of that

11 program. 42 U.S.C. § 12131(2).

12

5.2.3 Without reasonable modification of the rules, policies, and procedures

13 governing the Washington Medicaid program, Plaintiffs will be forcibly isolated and segregated

14 in harmful institutional settings against their will.

15

5.2.4 Defendants’ termination or reduction of Medicaid in home personal care

16 services deprives Plaintiffs of services that Plaintiffs require to avoid segregation in an institution

17 and remain at home, the most integrated residential setting that appropriate to their needs, and so

18 constitutes unlawful discrimination in violation of Title II of the ADA, 42 U.S.C. §§ 12132 et

19 seq., and its implementing regulation, 28 C.F.R. § 35.130(d).

20

5.2.5 By failing to make reasonable modifications to the policies, practices, or

21 procedures governing the provision of Medicaid services in Washington State to ensure they are

22 provided in the most integrated setting appropriate to the needs of disabled people, Defendants

23 discriminated against the Plaintiffs because of their disability, in violation of Section II of the

24 Americans with Disabilities Act, 42 U.S.C. §§ 12132, et seq.

25

5.2.6 Defendants have utilized criteria and methods of administration that

26 subject Plaintiffs to discrimination on the basis of disability, including unnecessary

27 institutionalization, by (1) failing to assess the services that would enable Plaintiffs to remain at

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1 home or in the community, (2) failing to ensure that Plaintiffs have access to Medicaid-covered

2 services that will meet their needs at home or in the community, and (3) compelling personal

3 care providers to stop working through these programs designed to keep people at home or in the

4 community, in violation of Title II of the ADA and implementing regulations.

5

5.3 DISCRIMINATION IN VIOLATION OF SECTION 504 OF THE

6

REHABILITATION ACT (Third Claim for Relief)

7

5.3.1 Plaintiffs are “qualified person[s] with disabilities” within the meaning of

8 Section 504 because they have physical, mental or other impairments that substantially limit one

9 or more of their major life activities, and they meet the essential eligibility requirements for

10 Washington’s State Medicaid program.

11

5.3.2 Defendants’ termination or reduction of Medicaid in home personal care

12 services that Plaintiffs require to avoid segregation in an institution and remain at home, the most

13 integrated residential setting that are appropriate to their needs, constitutes unlawful

14 discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) and its

15 implementing regulation, 28 C.F.R. § 41.51(d).

16

5.3.3 Defendants have utilized criteria and methods of administration that

17 subject Plaintiffs to discrimination on the basis of disability, including unnecessary

18 institutionalization, by (1) failing to assess the services that would enable Plaintiffs to remain at

19 home or in the community, (2) failing to ensure that Plaintiffs have access to Medicaid-covered

20 services that will meet their needs at home or in the community, and (3) compelling personal

21 care providers to stop working for programs designed to keep people at home or in the

22 community, in violation of Section 504 and its implementing regulations.

23

5.4 VIOLATION OF MEDICAID SUFFICIENCY REQUIREMENT (Fourth

24

Claim for Relief)

25

5.4.1 Under federal Medicaid requirements, states must provide “sufficient”

26 benefits. That is, “[e]ach service must be sufficient in amount, duration, and scope to reasonably

27 achieve its purpose.” 42 C.F.R. § 440.230(b).

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1

5.4.2 By reducing home care services to individuals for whom such services

2 have been deemed necessary pursuant to an individual care plan approved by the state,

3 Defendants have caused these Medicaid services to be insufficient to fulfill the purpose of the

4 Medicaid benefit.

5

5.4.3 The reduction in home care services is inconsistent with the federal law

6 and preempted by the Supremacy Clause of the U.S. CONST., art. IV.

7

5.5 VIOLATION OF MEDICAID REASONABLE STANDARDS

8

REQUIREMENT (Fifth Claim for Relief)

9

5.5.1 Federal Medicaid law requires participating states to establish reasonable

10 standards, consistent with the objectives of the Medicaid Act, for determining the extent of

11 covered services. See 42 U.S.C. § 1396a(a)(17).

12

5.5.2 Defendants’ reduction of in home personal care services is arbitrary, based

13 on budgetary needs rather than the needs of the individual recipients, and will result in

14 authorized hours that are less than those set forth in the individual care plans approved by

15 Defendants.

16

5.5.3 These reductions are inconsistent and in conflict with the reasonable

17 standards requirements of the federal Medicaid Act, 42 U.S.C. §1396a(a)(17), and interpretive

18 federal guidelines, and are thus preempted by the Supremacy Clause of the United States

19 Constitution, art. IV.

20

5.6 VIOLATION OF MEDICAID COMPARABILITY REQUIREMENT (Sixth

21

Claim for Relief)

22

5.6.1 Under federal Medicaid requirements, states must provide comparable

23 benefits, i.e., benefits that are equal in “amount, duration and scope,” to all categorically needy

24 Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. § 440.240(a), (b)(1).

25 Categorically needy Medicaid beneficiaries are beneficiaries who, in most cases, receive cash

26 public assistance to meet basic needs.

27

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1

5.6.2 The Medicaid Act also requires states to provide comparable benefits to

2 all medically needy Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. §§

3 440.240 (b)(1). Medically needy Medicaid beneficiaries are beneficiaries who do not receive

4 cash public assistance because they have income or resources in excess of the requirements for

5 receipt of such assistance, but who nevertheless meet categorical requirements for such

6 assistance, e.g., they are over age 65, blind, or disabled.

7

5.6.3 States may provide benefits to the medically needy that are less in amount,

8 duration and scope than benefits to the categorically needy, but Washington has not elected to do

9 so.

10

5.6.4 Therefore (with certain exceptions for some groups not relevant here),

11 Defendants must provide benefits under the State Medicaid program that are equal in amount,

12 duration and scope to all eligible beneficiaries. The only permissible basis for distinguishing

13 among such beneficiaries is differing levels of need.

14

5.6.5 The in home personal care services reductions are across-the-board hours

15 cuts that are not based on, and in fact are contrary to, individual needs assessments as embodied

16 in the individual care plans approved by Defendants.

17

5.6.6 These reductions violate Medicaid’s comparability requirement, 42 U.S.C.

18 § 1396a(a)(10)(B)(i).

19

5.6.7 Defendants’ actions deprive Plaintiffs and members of the Plaintiff Class

20 of rights, privileges or immunities secured to them by the Constitution of the United States, in

21 violation of 42 U.S.C. § 1983, and are preempted by the Supremacy Clause of the U.S. CONST.,

22 art. IV.

23

5.7 VIOLATION OF MEDICAID REQUIREMENT OF CMS APPROVAL

24

(Seventh Claim for Relief)

25

5.7.1 When a State makes material changes in its operation of the Medicaid

26 program, it must submit a plan amendment to CMS for approval and may not implement that

27 amendment until it is approved. 42 CFR §§ 430.12, 430.20, 447.256.

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1

5.7.2 Whenever the State applies for a Medicaid waiver, it certifies that it will

2 submit “[a]ny proposed changes” to the waiver program to CMS for approval as “waiver

3 amendments.” See, e.g., “Application for a §1915(c) Home and Community-Based Services

4 Waiver” submitted by State of Washington, April 1, 2009 for “Copes Renewal 2009,” Section 8.

5

5.7.3 In the State Plan and each home care waiver program, Defendants certify

6 that Washingotn uses either the CARE tool of the SIS tool. The CARE and SIS tools apply

7 specific and uniform standards and algorithms to determine each recipient’s home care hours

8 based on individualized assessments of need. The functions, elements and scoring mechanisms

9 of the CARE tool are provided for with specificity in the Washington State Administrative Code

10 (WAC). WAC 388-106-0130, 388-106-0135, 388-106-0140, 388-440-0001. The WACs

11 governing the CARE tool do not permit Defendants to change a recipient’s home care hours

12 based for purely budgetary reasons.

13

5.7.4 By introducing budget cuts as a basis for determining each recipient’s

14 home care hours, as opposed to using the needs-based CARE or SIS tool assessments, the State

15 has made a significant change that is not reflected in the State Plan or its waivers.

16

5.7.5 Defendants’ reduction of in home personal care services below assessed

17 need materially modifies the provisions of the State Plan which, among other things, set forth

18 that an “individualized plan of care” for home and community based services consumers is

19 established based on an “independent assessment” that is “developed by a person-centered

20 process in consultation with the individual” and “other appropriate individuals,” and that this

21 plan of care “[i]dentifies the State plan HCBS necessary for the individual, and furnishes . . . all

22 HCBS which the individual needs.” Washington State Medicaid Plan, Supplement 4 to

23 Attachment 3.1-A, at 11.

24

5.7.6 Defendants have not submitted plan or waiver amendments regarding the

25 reduction of in home personal care services to CMS, and have not awaited CMS approval before

26 implementing that reduction.

27

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5.7.7 Defendants’ implementation of personal care hours reductions violate the

2 requirement that the State submit material plan and waiver changes to CMS and refrain from

3 implementing such changes before CMS approval, and are thus preempted by the Supremacy

4 Clause of the United States Constitution, art. IV.

5

5.8 VIOLATION OF MEDICAID REQUIREMENT OF FREEDOM TO

6

CHOOSE BETWEEN INSTITUTIONAL OR HOME- AND

7

COMMUNITY-BASED SERVICES (Eighth Claim for Relief)

8

5.8.1 Defendants are permitted to provide home care services to Plaintiffs who

9 would otherwise be eligible for institutional care, through the MPC as well as Section 1915(c)

10 and/or 1915(d) waiver programs, including, but not limited to, MNIH, and various DDD waivers.

11

5.8.2 Most, if not all, Plaintiffs who receive home care services through the

12 State Plan are also eligible for home care services under a Section 1915(c) or (d) waiver

13 program, and it is Defendants who elect to provide home care services to those Plaintiffs through

14 the State Plan instead of a waiver program.

15

5.8.3 Pursuant to 42 U.S.C. §1396n(c)(2)(C), the State was required, as a

16 condition of receiving the Section 1915(c) waivers, to assure that individuals likely to require the

17 level of care provided in hospitals, nursing facilities, or ICF-MRs “are informed of the feasible

18 alternatives” to institutional care that are available under the waiver “at the choice of such

19 individual.”

20

5.8.4 Pursuant to 42 C.F.R. § 441.302(d), each individual who is determined to

21 be likely to require the level of care provided in a hospital, nursing facility, or ICF-MR must be

22 “(1) informed of any feasible alternatives available under the waiver; and (2) given the choice of

23 either institutional or home and community based services.” 42 C.F.R. §441.302(d).

24

5.8.5 Pursuant to 42 U.S.C. § 1396n(d)(2)(C), the State was required, as a

25 condition of receiving the Section 1915(d) waivers, to assure that individuals 65 years of age or

26 older who are likely to require the level of care provided in skilled nursing facilities or

27

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1 intermediate care facilities (“ICFs”) “are informed of the feasible alternatives” to institutional

2 care, “which such individuals may choose if available under the waiver.”

3

5.8.6 Pursuant to 42 C.F.R. § 441.353(d), each individual who is determined to

4 be likely to require the level of care provided in a skilled nursing facility or ICF must be

5 informed “of the feasible alternatives available under the waiver and allow[ed] . . . to choose

6 either institutional or home and community-based services.”

7

5.8.7 Defendants’ planned reduction of hours below those set forth in recipients’

8 individual CARE plans and ISPs will not be sufficient to allow recipients to live safely in their

9 homes, and will lead to deterioration of the health and welfare of recipients.

10

5.8.8 Defendants’ planned reduction of hours below those set forth in recipients’

11 individual CARE plans and ISPs will effectively eliminate home-based care as an option for

12 many recipients, such that they have no freedom of choice between “institutional or home and

13 community based services” but instead must enter institutions to receive an adequate level of

14 care.

15

5.8.9 As such, Defendants’ actions violate Medicaid’s free choice provisions, 42

16 U.S.C. §§ 1396n(c)(2)(C) and 1396n(d)(2)(C), and 42 C.F.R. §§ 441.302(d), 441.353(d).

17

5.8.10 Additionally, at the time that Defendants reduced recipients’ allotment of

18 home care hours, and thereby effectively eliminated home-based care as a “feasible alternative”

19 to institutional care, Defendants failed to inform recipients of any other feasible alternatives to

20 institutional care available under the waiver, or of the option to obtain the necessary care in an

21 institutional setting.

22

5.8.11 For this separate and independent reason, Defendants’ actions violate

23 Medicaid’s notice provisions, 42 U.S.C. §§ 1396n(c)(2)(C) and 1396n(d)(2)(C), and 42 C.F.R.

24 §§ 441.302(d), 441.353(d).

25

5.8.12 Defendants’ actions deprive Plaintiffs and members of the Plaintiff Class

26 of rights, privileges or immunities secured to them by the Constitution of the United States, in

27

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1 violation of 42 U.S.C. § 1983, and are preempted by the Supremacy Clause of the U.S. CONST.,

2 art. IV.

3

VI. PRAYER FOR RELIEF

4

WHEREFORE, plaintiffs pray that the Court order the following relief and remedies:

5

6.1 Declare that Defendants’ misleading and inaccurate notice of the home care hours

6 cuts and Medicaid benefits reduction, its failure to conduct a CARE reassessment or transition

7 Plaintiffs to adequate replacement Medicaid services or other residential nursing facility or other

8 instutions, and its reduction of their rights to Medicaid services for which they were assessed to

9 qualify and received until the January 1, 2010 cuts, without proper notice and opportunity for fair

10 hearings constitutes a denial of Plaintiffs’ constitutionally protected right to due process

11 guaranteed by 42 U.S.C. §1983, the Fourteenth Amendment to the Constitution, and the

12 Medicaid program, Title XIX of the Social Security Act, Title 42 § 1396a, et seq.

13

6.2 Declare that Defendants’ reduction of Plaintiffs’ Medicaid in home personal care

14 services, which deliver services in the most integrated setting appropriate to the needs of the

15 class, condition the receipt of required Medicaid services on segregation in a nursing home and

16 present a serious risk of unnecessary institutionalization, in violation of the ADA and Section

17 504, which prohibit discrimination on the basis of disability and unjustified institutionalization

18 and require Defendant to administer its services and programs in the most integrated setting

19 appropriate to the needs of the individual with disabilities.

20

6.3 Declare that Defendants’ arbitrary reduction of Plaintiffs’ Medicaid in home

21 personal care services below their assessed need violate the reasonable standards, sufficiency,

22 comparability and free choice provisions of the Medicaid Act, as well as the requirement that

23 States obtain approval of plan and waiver amendments before implementing them.

24

6.4 Grant a temporary restraining order, preliminary injunction, and permanent

25 injunction enjoining Defendants and their officers, agents, employees, attorneys, and all persons

26 who are in active concert or participation with them from reducing Medicaid in home personal

27 care hours as planned for January 1, 2011.

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1

6.5 In the alternative, grant a temporary restraining order, preliminary injunction, and

2 permanent injunction enjoining Defendants and their officers, agents, employees, attorneys, and

3 all persons who are in active concert or participation with them, from terminating, reducing or

4 suspending Plaintiffs’ in-home personal care services until such time as each has an individual

5 care assessment, notice of alternative institutional or home and community-based Medicaid

6 services, and full due process appeal rights from the reductions of their existing Medicaid

7 benefits.

8

6.6 Waive the requirement for the posting of a bond as security for the entry of

9 preliminary relief.

10

6.7 Certify this action as a class action and appoint representative Plaintiffs as Class

11 representatives;

12

6.8 Award the Plaintiffs the costs of this action and reasonable attorney’s fees

13 pursuant to 29 U.S.C. § 794a, 42 U.S.C. § 12133, 42 U.S.C. § 12205 and as otherwise may be

14 allowed by law.

15

6.9 All such other and further relief as the Court deems to be just and equitable.

16

DATED this 23rd day of December, 2010.

17

MacDONALD HOAGUE & BAYLESS

ALTSHULER BERZON

18

By:

/s/ Andrea Brenneke

19

Andrea Brenneke, WSBA # 22027

20

Attorneys for Plaintiffs

By:

/s/ Stacey Leyton

Stacey Leyton, CABA #203827

pro hac vice Attorneys for Plaintiffs

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 49
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 61 Filed 12/23/10 Page 50 of 50

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 23, 2010, I electronically filed the foregoing to the

3 Clerk of the Court using the CM/ECF system which will send notification of such filing to the

4 following:

5

 Edward Joseph Dee

edward.dee@atg.wa.gov,corrinnes@atg.wa.gov,kathya@atg.wa.gov,cherylc1@atg.wa.go

6

v

 Stacey Leyton

7

sleyton@altshulerberzon.com

8

DATED this 23rd day of December , 2010.

9

MacDONALD HOAGUE & BAYLESS

10

11

By: /s/ Andrea Brenneke

12

Andrea Brenneke, WSBA # 22027

Attorneys for Plaintiffs

13

14

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23

24

25

26

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
No. 2:10-cv-02052-TSZ - 50
10099.1 dl231202

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

 
 1

THE HONORABLE THOMAS S. ZILLY

2

3

4

5

6

7
8
9
M.R. et al.,
10
11

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Plaintiffs,

No. C10-2052Z

12 vs.
13 SUSAN DREYFUS, et al.,
14
Defendants.
15

ORDER

16

THIS MATTER comes before the Court on plaintiffs’ motion for a temporary

17
restraining order and a preliminary injunction, docket no. 11. Having reviewed all
18
papers filed in support of, and in opposition to, plaintiffs’ motion, and having
19

20 considered the oral arguments of counsel, the Court entered a Minute Order, docket

21 no. 73, denying the motion for a temporary restraining order and deferring the motion

22 for a preliminary injunction. This Order explains the Court’s reasons for denying the
23
requested temporary restraining order.
24

25

26

ORDER - 1

1 Background
2
Many of the issues now before the Court have been previously litigated. See
3
Freeman v. Wash. Dep’t of Soc. & Health Servs., 2010 WL 3720285 (W.D. Wash.).
4
5 In Freeman, the plaintiffs unsuccessfully challenged reductions made in 2009 to the
6 number of base hours for in-home “personal care services” allotted to certain
7 individuals in connection with the Medicaid program. In this action, plaintiffs seek to
8
enjoin deeper cuts to these base hours, alleging that, if the planned reductions take
9
effect on January 1, 2011, the level of available personal care services will fall below
10
11 the minimum amount necessary for individuals to remain safely in their homes and, as
12 a result, some plaintiffs will be (or already have been) forced to move to nursing
13 facilities or other institutions. Plaintiffs assert that the intended decreases in base
14
hours violate the Medicaid Act, the Americans with Disabilities Act, and the Due
15
Process Clause of the Fourteenth Amendment to the United States Constitution. The
16
17 Court concludes that plaintiffs have not made a sufficient showing of irreparable injury
18 or likelihood of success on the merits to warrant the extraordinary remedy of a
19 temporary restraining order.
20
Under the Medicaid Act, also known as Title XIX of the Social Security Act,
21
42 U.S.C. §§ 1396a-1396w, the federal government provides monetary assistance to
22
23 participating States, which then contribute the remaining resources necessary to
24 furnish medical care and other services to qualified individuals. If a State elects to
25 participate in Medicaid – which all fifty do – it must operate its program in conformity
26
ORDER - 2

1 with applicable federal laws. Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985). The
2
federal government administers Medicaid through the Centers for Medicare and
3
Medicaid Services (“CMS”). 42 C.F.R. § 400.200. Washington’s Medicaid program
4
5 is managed by the Department of Social and Health Services (“DSHS”).

6 RCW 74.04.050.

7

Under the Medicaid program, each participating State must submit, and have

8
approved by CMS, a state plan for the provision of “medical assistance.” See 42
9
C.F.R. § 430.10. Only some categories of “medical assistance,” such as inpatient and
10

11 outpatient hospital care, are mandatory for participating States, while others, such as

12 in-home “personal care services,” are optional. See 42 U.S.C. §§ 1396d(a) &

13 1396a(a)(10)(A). Washington has elected to provide “personal care services,” which

14
are defined by the Medicaid Act as services that are

15

furnished to an individual who is not an inpatient or resident of a

16

hospital, nursing facility, intermediate care facility for the mentally

17

retarded, or institution for mental disease that are (A) authorized for the

individual by a physician or in accordance with a plan of treatment or

18

(at the option of the State) otherwise authorized for the individual in

accordance with a service plan approved by the State, (B) provided by an

19

individual who is qualified to provide such services and who is not a

20

member of the individual’s family, and (C) furnished in a home or other

location.

21

42 U.S.C. § 1396d(a)(24). DSHS has further divided personal care services into two
22

23 types of activities for which beneficiaries might require physical or verbal assistance,

24 namely activities of daily living (“ADLs”) and instrumental activities of daily living

25 (“IADLs”). WAC 388-106-0010. ADLs include basic personal tasks like bathing,
26

ORDER - 3

1 dressing, eating, and toilet use, while IADLs consist of functions performed around the
2
home or community, for example, shopping, meal preparation, and housekeeping. Id.
3
In administering Washington’s long-term personal care services program,
4
5 DSHS uses a system known as the Comprehensive Assessment and Reporting
6 Evaluation (“CARE”). WAC 388-106-0065. CARE takes into account five criteria,
7 namely (i) cognitive performance score; (ii) clinical complexity; (iii) mood/behavior
8
and behavior point score; (iv) ADL score; and (v) exceptional care. WAC 388-106-
9
0125. Based on the results of CARE, DSHS places the beneficiary into one of
10
11 seventeen acuity classifications. Id. DSHS has assigned each acuity classification a
12 specific number of base hours of personal care services. Id. Beneficiaries with the
13 most severe functional disabilities are assigned to the category with the highest
14
number of base hours.
15
In September 2010, Washington Governor Christine Gregoire issued Executive
16
17 Order 10-04, which directed each State agency to reduce expenditures to compensate
18 for a projected budget shortfall in the 2011 fiscal period. Exs. 2-3 to Brenneke Decl.
19 (docket no. 12). In response to the Governor’s Executive Order, DSHS announced
20
plans to reduce in-home personal care service base hours by an average of ten
21
percent,1 effective January 1, 2011. Id. at Ex. 4. DSHS sent written notifications to all
22
23 beneficiaries of these services on December 6, 2010. Id. at Ex. 1 at 2-3. This
24 litigation ensued shortly thereafter. Among the plaintiffs in this case are disabled and
25 1 This figure reflects the difference in the average numbers of base hours across all acuity categories 26 for 2010 (161.2 hours) and 2011 (144.4 hours). When the decrease for each acuity group is separately
considered, the range of values is between 6.3% (Group E Medium) and 18.8% (Group B Low).
ORDER - 4

1 elderly individuals who are currently receiving, or within the recent past received, in-
2
home personal care services through Washington’s Medicaid program. Also named as
3
plaintiffs in this action are two nonprofit associations and a union that represents
4
5 personal care service providers.2

6 Discussion

7 A. Standard for a Temporary Restraining Order
8
Preliminary injunctive relief requires a party to demonstrate (1) a likelihood of
9
success on the merits; (2) a likelihood of irreparable harm in the absence of
10
11 preliminary relief; (3) a balance of equities tipping in favor of relief; and (4) a

12 weighing of public interest that supports an injunction. Stormans, Inc. v. Selecky, 586

13 F.3d 1109, 1127 (9th Cir. 2009). Courts employ a substantially identical analysis
14
when addressing a motion for a temporary restraining order. Stuhlbarg Int’l Sales Co.
15
v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A temporary
16
17 restraining order, as with any preliminary injunctive relief, is “an extraordinary

18 remedy never awarded as of right.” See Winter v. Natural Res. Def. Council, Inc.,

19 129 S. Ct. 365, 376 (2008).

20
B.
21
22

Irreparable Injury In predicting that the anticipated reductions in base hours of personal care

23 services will cause a deterioration in health and institutionalization of beneficiaries,

24 2 The parties have not briefed whether and to what extent these organizations have standing, and the 25 Court declines to address these issues sua sponte. Even assuming these entities have standing and can
demonstrate some injury independent of the alleged harm to the individual plaintiffs, they still would 26 not be entitled to injunctive relief at this stage of the proceedings because they have not demonstrated
a likelihood of success on the merits of the various claims in this case.

ORDER - 5

1 plaintiffs have taken the position that DSHS has never awarded more than the
2
minimum time necessary for recipients to safely remain in their homes and that the
3
scheduled cuts in base hours will result in individuals having less assistance than they
4
5 absolutely require. Plaintiffs, however, have failed to establish a correlation between
6 the base hours at issue and the amount of services needed to avoid injury or
7 institutionalization.
8
The current method for calculating the number of personal care service hours a
9
beneficiary will receive was implemented in 2004. At that time, in response to a
10
11 legislative directive and based on studies conducted during preceding years, see Moss
12 Decl. at ¶¶ 3 & 5 (docket no. 68), DSHS promulgated regulations outlining the five
13 criteria of CARE, pursuant to which an adult needing personal care services is
14
assigned to a particular category that is associated with a specific number of base
15
hours. For example, in 2004, an individual assessed as falling within “Group E High”
16
17 would have had 420 base hours. WAC 388-72A-0087 (2004). An individual’s base
18 hours are then adjusted, either up or down, in accordance with several factors,
19 including informal supports, multiple clients in the same household, and the
20
characteristics of the living environment, for example, offsite laundry facilities or
21
wood used as a sole source of heat. WAC 388-106-0130(2)-(4) (2010). The result of
22
23 this computation is “the maximum number of hours that can be used to develop [a]
24 plan of care.” Emergency Rule 388-106-0130(6), Wash. St. Reg. 10-22-066 (Oct. 29,
25 2010).
26
ORDER - 6

1

Although the CARE classification process, whereby a beneficiary is placed into

2
one of the seventeen categories enumerated in WAC 388-106-0125, involves an
3
individualized assessment, the number of base hours allotted to each of the seventeen
4

5 categories is not linked with individual need. Rather, the categories reflect the relative

6 acuity of individuals, with beneficiaries in classifications that receive more base hours

7 having more need for personal care services than those in categories associated with
8
lower numbers of base hours. Moss Decl. at ¶¶ 3 & 4 (docket no. 68). When CARE
9
was implemented in 2004, the base hours were allocated among the fourteen original
10
11 acuity levels in a “budget-neutral” manner, dividing the then-available resources

12 between the various categories of recipients. See Leitch Decl. at ¶ 7 (docket no. 67);

13 see also Moss Decl. at ¶ 4 (“CARE does not measure how many hours a person
14
‘needs,’ but instead determines what a person’s share of available resources should be
15
based upon the individual’s level of acuity compared to other recipients”); compare
16
17 WAC 388-72A-0087 (2004) (recodified in 2005 as WAC 388-106-0125). The base

18 hours remained constant from 2004 until 2008, when three additional classifications

19 were created. See WAC 388-106-0125 (2008).
20
In 2009, the base hours for each category were reduced, with the largest
21
percentage decreases applied to the classifications associated with the least acuity.
22
23 See Emergency Rule 388-106-0125, Wash. St. Reg. 09-14-046 (July 1, 2009). For

24 example, the change for “Group E High” was under one percent, while “Group A

25 Low” experienced a downward adjustment of roughly ten percent. In 2010, some of
26

ORDER - 7

1 these base hours were restored, using the same principle in reverse, i.e., the categories
2
with the greatest acuity were placed as closely as possible to pre-existing levels, while
3
other classifications did not regain as much ground. This methodology is consistent
4
5 with explicit legislative instructions:

6

The personal care services benefit shall be provided to the extent funding

is available according to the assessed level of functional disability. Any

7

reductions in services made necessary for funding reasons should be

8

accomplished in a manner that assures that priority for maintaining

services is given to persons with the greatest need as determined by the

9

assessment of functional disability.

10 RCW 74.09.520(4). Based on this statutory language and the regulations involved, the
11
Court concludes that CARE assesses only relative need for personal care services, not
12
absolute or minimum requirements, and that the base hours assigned to each category
13
14 enumerated in WAC 388-106-0125 correlate with legislative appropriations, as

15 opposed to individual need.

16

In arguing to the contrary, plaintiffs rely heavily on the declaration of Charles

17 Reed,3 who describes “the CARE tool” as “generat[ing] an automated base number of
18
in-home personal care hours that a consumer is entitled to receive to meet their unmet
19

20 needs for care. This number represents the minimum number of personal care hours

21 that are necessary in order to meet the individually-assessed needs of the client and to

22 permit the client to remain safely at home.” Reed Decl. at ¶ 30 (docket no. 18).
23
Plaintiffs also rely on the declaration of Penny Black, who states that “[t]he CARE
24

25 3 In his declaration, Mr. Reed has indicated that, after serving as both an Assistant Secretary and
Deputy Secretary of DSHS, he retired from DSHS in July 2000. Reed Decl. at ¶¶ 3 & 6 (docket 26 no. 18). Thus, Mr. Reed’s tenure with DSHS expired before CARE was implemented in 2004.

ORDER - 8

1 assessment tool produces an accurate measure of essential need. . . . [It] is designed
2
to, has proven effective to, and is used by [DSHS] to measure the unmet needs that
3
must minimally be met in order to support a client in his or her home without
4
5 compromising health or safety.” Black Decl. at ¶ 28 (docket no. 19).4 Mr. Reed’s and
6 Ms. Black’s explanations do not appear to be aimed at CARE itself, but rather at a
7 computerized or otherwise automated system or “tool” that incorporates all of the steps
8
outlined in Washington’s long-term care services regulations.
9
The “CARE tool” about which Mr. Reed and Ms. Black have testified by
10
11 declaration does not appear to be equivalent to the Comprehensive Assessment
12 Reporting Evaluation or CARE referenced in WAC 388-106-0125. CARE does not
13 itself generate either a minimum or a maximum number of hours; it merely classifies
14
an individual into one of seventeen groups, as a result of which base hours are
15
identified. The base hours are then, outside of CARE, adjusted either up or down
16
17 depending on factors external to the individual. To conclude that CARE sets a
18 minimum (or maximum) number of hours would ignore the additional computations
19 required by WAC 388-106-0130. Moreover, to treat the figure calculated pursuant to
20
21 4 According to her declaration, from 2000 until 2005, Ms. Black held the position of Director of the 22 Home and Community Services Administration within the Aging and Disability Services
Administration of DSHS. Black Decl. at ¶ 4 (docket no. 19). While still employed by DSHS in that 23 capacity, Ms. Black provided a declaration to the Washington State Court of Appeals in connection
with DSHS’s motion for an emergency stay in an unrelated case. See Black Decl. (Apr. 11, 2005), 24 attached to Work Decl. (docket no. 71). In this earlier declaration, Ms. Black averred that,
“[f]ollowing the assessment, eligible individuals are classified into fourteen groups that reflect the 25 intensity of care that is needed. This classification results in a baseline determination of the number of
hours of in-home care [DSHS] may be able to fund.” Id. at ¶ 10 (emphasis added). Ms. Black’s 26 previous explanation, which linked the numbers of base hours to available resources and not to
individual needs, appears to contradict her current position.
ORDER - 9

1 WAC 388-106-0125 and WAC 388-106-0130 as a minimum, rather than a maximum,
2
disregards the express wording of the latter regulation.
3
The various declarations of personal care services beneficiaries that plaintiffs
4
5 have submitted in connection with their motion do not convince the Court otherwise.

6 When asked during oral argument which declarations most strongly support plaintiffs’

7 contention that the proposed reductions will result in irreparable injury, plaintiffs’
8
counsel referred the Court to the declarations of Donna Hayes, Jeanine Starr, James
9
Braddock, S.J., and Sean Walsh.5 A review of these declarations indicates that
10
11 plaintiffs’ predictions are based largely on speculation.

12

For example, Ms. Starr is a service provider for plaintiff J.B. Starr Decl. at ¶ 2

13 (docket no. 34). Ms. Starr predicts that as a result of the budget reductions, which will
14
reduce J.B.’s monthly personal care service hours from 82 to 68, J.B. “will likely be
15
admitted to a nursing home.” Id. at ¶¶ 16, 26 (emphasis added). Similarly, Sean
16
17 Walsh is the clinical operations and long term care manager at Elderhealth NW, a

18 provider of personal care services. Walsh Decl. at ¶ 2 (docket no. 25). Mr. Walsh

19 testifies that several of Elderhealth’s clients face the prospect of “several months of
20
slow decline rather than requiring immediate hospitalization or institutionalization” as
21
a result of the proposed budget cuts. Id. at ¶¶ 14-17 (emphasis added). Neither
22

23

24
25 5 Plaintiffs’ counsel also mentioned individuals with the initials J.H. and J.B. After reviewing the docket, the Court has been unable to locate any specific declarations from these plaintiffs. The Court
26 presumes that counsel was referring to the declarations filed by Donna Hayes in support of J.H. (docket no. 47) and Jeanine Starr in support of J.B. (docket no. 34).

ORDER - 10

1 Ms. Starr’s nor Mr. Walsh’s declarations quantify the level of personal care services
2
needed to avoid such grim prospects and they offer no concrete sense of immediacy.
3
The various declarations also reflect the fact that the decision to move into a
4
5 nursing home is complicated by a host of external factors, and is not simply a function
6 of the number of personal care service hours made available under Washington’s
7 Medicaid program. For example, Donna Hayes was a service provider for plaintiff
8
J.H. See Hayes Decl. at ¶¶ 4, 7-8 (docket no. 47). In December, J.H. was forced to
9
move to a nursing home when Ms. Hayes decided that they could no longer make their
10
11 living arrangements work financially on J.H.’s reduced Medicaid hours. Id. at ¶ 8.
12 The decision to move J.H. to a nursing home was ultimately complicated by his living
13 situation and his joint financial situation with Ms. Hayes.
14
Similarly, S.J. testifies that she will be forced to move to a nursing home in
15
January 2011 because her service provider, James Braddock, will need to pursue other
16
17 means of earning income if S.J.’s hours are reduced. S.J. Decl. at ¶ 25 (docket no. 27).
18 Although Mr. Braddock opines that the number of personal care service hours in S.J.’s
19 reduced schedule will be insufficient to meet her minimum needs, his decision to
20
resign as her care provider appears to have ultimately been the result of his own
21
financial considerations, not S.J.’s needs. Braddock Decl. at ¶¶ 9, 27 (docket no. 28).
22
23 S.J. believes that she will likely end up in a nursing home if she is unable to locate a
24 new service provider on short notice. S.J. Decl. at ¶¶ 27, 33 (docket no. 27).
25
26
ORDER - 11

1

The Court has carefully reviewed all of the declarations submitted by plaintiffs,

2
with special attention paid to those cited by counsel during oral argument, and the
3
Court is not persuaded that any of the declarations support a conclusion that the
4

5 number of personal care service hours provided by DSHS constitute the minimum

6 level necessary to permit beneficiaries to remain safely in their homes.

7

Plaintiffs also argue that DSHS has admitted that the planned reductions will

8
result in otherwise unnecessary institutionalization as the level of personal care
9
services drop below the minimum required to preserve the health and safety of
10

11 beneficiaries. In support of this contention, plaintiffs cite to what appears to be an

12 internal DSHS document concerning proposals for implementation of the Governor’s

13 budget cuts. Ex. 6 to Brenneke Decl. (docket no. 12-8). Plaintiffs quote the following
14
language: “In some cases, a safe in-home plan of care will not be possible and clients
15
may need to go to community residential or nursing facility settings.” Id. at 6. DSHS
16
17 responds that this statement is not an admission, but rather is internal dialogue that is

18 typical of any large-scale decision-making process. See Moss Decl. at ¶ 8 (docket

19 no. 68) (“This statement was made by a mid-level DSHS manager and was intended to
20
portray a worst case scenario regarding potential impact on the 45,000 population of
21
recipients.”). The Court declines to construe the document submitted by plaintiffs,
22
23 which has no identified author, and which does not reference any factual support for

24 its predictions, as a judicial admission by DSHS that implementation of the 2011

25 reductions will increase the rate of institutionalization.
26

ORDER - 12

1

Finally, even if the decreases in base hours might leave some plaintiffs without

2
sufficient personal care services to safely remain in their homes, plaintiffs have not
3
shown that they lack an adequate administrative remedy. DSHS staff are authorized
4

5 by regulation to request an exception to a rule (“ETR”) for individual cases satisfying

6 certain criteria. WAC 388-440-0001. In the notice sent to beneficiaries in December

7 2010, DSHS indicated that the reductions scheduled to take effect on January 1, 2011,
8
affected only “CARE generated hours,” and would not decrease any additional hours
9
previously authorized via an ETR. See Ex. 10 to Response (docket no. 66-2 at 9). The
10
11 notice also advised beneficiaries that requests for ETRs would be reviewed “using the

12 established ETR request procedure.” Id. Plaintiffs complain that the ETR process is

13 insufficient because it must be initiated by DSHS staff. During oral argument,
14
however, counsel for DSHS explained that a beneficiary may simply ask a case
15
manager for an ETR, and that ETR requests, which are processed by a central
16
17 committee convening twice a week, experience both a quick turnaround and a high

18 rate of approval. Moreover, any out-of-home placement automatically requires the

19 case manager to evaluate whether an ETR is appropriate. The Court is persuaded that

20
plaintiffs’ discounting of the ETR procedure, and its ability to avoid the disastrous
21
consequences that plaintiffs predict, is not supported by the current record.
22

23

In sum, plaintiffs have not shown that the base hours identified in WAC 388-

24 106-0125 are in any way coextensive or correlated with minimum values. Indeed,

25 plaintiffs have not identified, and counsel conceded at oral argument that she is not
26

ORDER - 13

1 aware of, any individual who, as a result of the 2009 reductions in base hours, was
2
institutionalized or otherwise injured. Compare Moss Decl. at ¶ 8 (docket no. 68)
3
(“When personal care hours were reduced for all recipients effective July 1, 2009, the
4
5 negative consequences predicted by plaintiffs did not occur. Health and safety were
6 not compromised, and people were not forced into nursing homes due to lack of
7 personal care services.”). This dearth of evidence is inconsistent with plaintiffs’
8
contention that the base hours reflect quantities absolutely necessary for individuals to
9
continue to stay in their homes. The subsequent increases in base hours that took
10
11 effect in 2010 also contradict plaintiffs’ position. Plaintiffs point to no assessment of
12 individual needs that triggered the rise in base hours. Instead, the record suggests that
13 the 2010 increases resulted merely from a budget surplus, negating any link between
14
the numbers of base hours and what is “necessary in order to meet the individually-
15
assessed needs of the client and to permit the client to remain safely at home.” Reed
16
17 Decl. at ¶ 30 (docket no. 18). Because plaintiffs have not sufficiently established that
18 base hours bear a direct relationship to the minimum amount of personal care services
19 required for individuals to remain safely in their homes, plaintiffs have failed to show
20
the irreparable injury necessary to justify the extraordinary remedy of a temporary
21
restraining order.
22
23 ///
24 ///
25 ///
26
ORDER - 14

1 C. Likelihood of Success on the Merits
2
1. Medicaid Act Claims
3
The Court does not write on a clean slate. Cuts in Medicaid funding have been
4
5 a frequent topic of litigation as States struggle to deal with these financially lean times.

6 Here, plaintiff raises five claims under Medicaid, arguing that the State’s 2011

7 reduction violates Medicaid’s (1) reasonable standards requirement; (2) sufficiency
8
requirement; (3) comparability requirement; (4) free choice requirement; and
9
(5) requirement that the State obtain federal approval for any modifications to its state
10
11 plan.

12

a. Reasonable Standards Requirement

13

The Medicaid Act requires state plans to have “reasonable standards . . . for

14
determining . . . the extent of medical assistance under the plan which . . . are
15
consistent with the objectives of [Medicaid].” 42 U.S.C. § 1396a(a)(17). Plaintiffs
16

17 contend that DSHS’s reduction in personal care services is unreasonable because the

18 different acuity classifications in CARE reflect the minimum hours necessary to

19 permit beneficiaries to remain safely in their homes. Plaintiffs have not shown that
20
CARE determines the actual minimum personal care service needs of individual
21
beneficiaries, and they have not established that the State’s proposed downward
22
23 adjustment will result in an unreasonable reduction below the absolute minimum level
24 of care necessary to preserve each beneficiary’s health and safety.6 Consequently,

25
26 6 Plaintiffs argue that, even if the Court concludes that the base hours authorized by WAC 388-1060125 do not represent the minimum number of hours needed to preserve an individual’s health and

ORDER - 15

1 plaintiffs have not shown a likelihood of success on the merits of their reasonable

2 standards claim.7
3
b.
4

Sufficiency Requirement

5

Medicaid regulations also require that “[e]ach service must be sufficient in

6 amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R.

7 § 440.230(b). The levels of services are sufficient if they meet the purposes of the
8
specific program. Curtis v. Taylor, 625 F.2d 645, 651 (5th Cir. 1980). Plaintiffs
9
contend that the planned budget reduction violates Medicaid’s sufficiency requirement
10
11 because DSHS will no longer provide enough personal care service hours for

12

13 safety in a non-institutional setting, at some point, a reduction in services must logically fall below a

beneficiary’s level of need. Reply at 9 (docket no. 69). Plaintiffs further contend that any reduction in 14 services based on an arbitrary, budget-driven figure is per se unreasonable, otherwise the State could

reduce available funding for personal care services by seventy-five percent or more, thereby defeating 15 the purpose of the program. Id. Although the Court acknowledges that a limit must exist, below

which the State could not reasonably reduce funding for personal care services without running afoul 16 of Medicaid’s reasonable standards requirement, the Court is not persuaded by the present record that

the proposed 2011 reductions approach such lower threshold.
17

7 Plaintiffs cite several cases for the proposition that a reduction in Medicaid services without 18 consideration of the needs of individual beneficiaries is unreasonable. See Lankford v. Sherman, 451

F.3d 496 (8th Cir. 2006); V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009). But those cases 19 involved the complete elimination of programs, or the wholesale elimination of categories of

20

eligibility. For example, in Lankford, the State of Missouri passed a law that eliminated optional coverage for Medicaid recipients for durable medical equipment (“DME”). 451 F.3d at 501. The

21

Missouri agency administering Medicaid then passed emergency regulations that reinstated the right of recipients to some, but not all, of the medically necessary DME devices. Id. The Eighth Circuit held

22 that the reinstatement of eligibility as to only a portion of the DME devices was unreasonable because the regulation did not provide any mechanism for individuals to obtain non-covered DME devices. Id.

23 at 513. Similarly, in Wagner, the State of California passed a law that eliminated some beneficiaries’ eligibility for all covered services. 669 F. Supp. 2d at 1117. The law also eliminated categories of

24 eligibility for other recipients. Id. Conversely, here, none of the beneficiaries are losing eligibility for in-home personal care services or categories of care. DSHS is merely exercising its broad discretion

25 to modify the extent of medical assistance in light of scarce resources. Beal v. Doe, 432 U.S. 438, 444 (1977). Moreover, unlike in Lankford, plaintiffs here have an available ETR process that provides a

26 mechanism to address any gap in services that are necessary to maintain health or safety. See WAC 388-440-0001.

ORDER - 16

1 beneficiaries to remain safely in their homes. As with the reasonable standards

2
requirement, however, plaintiffs have not shown that CARE represents a minimum
3
standard of care.
4

5

Moreover, whether the available personal care service hours after the reduction

6 are sufficient to meet the program’s purposes must be examined in the context of the

7 substantial discretion States are afforded to choose the proper mix of amount, scope,

8
and duration limitations on Medicaid coverage. Alexander, 469 U.S. at 303. As noted
9
by the Supreme Court:
10

11

[M]edicaid programs do not guarantee that each recipient will receive

the level of health care precisely tailored to his or her particular needs.

12

Instead, the benefit provided through Medicaid is a particular package of

health care services . . . . That package of services has the general aim of

13

assuring that individuals will receive necessary medical care, but the

14

benefit provided remains the individual services offered – not “adequate

health care.”

15

Id. In this case, DSHS will continue to provide a substantial number of in-home
16

17 personal care service hours following the proposed 2011 reductions. Indeed, the

18 record reflects that Washington is a leading State in the number of personal care

19 service hours provided to qualifying recipients, and plaintiff has not shown that the
20
reductions will prevent the State from offering a package of services that has the
21
general aim of providing necessary medical care.8 Steve Eiken, et al., Medicaid Long-
22

23
24 8 Most States that provide optional personal care services under Medicaid have imposed limits on available services based on cost or hours. Allen J. LeBlanc, M. Christine Tonner, & Charlene
25 Harrington, State Medicaid Programs Offering Personal Care Services, 22 Health Care Financing Rev. 1, 162 (Summer 2001). As all Medicaid plans are approved by CMS, the variation in federally
26 approved State limitations on the availability of personal care services is indicative of the discretion afforded to the States in crafting personal care programs.

ORDER - 17

1 Term Care Expenditures in FY 2009 (Thomson Reuters 2010) (Ex. 6 to Resp. (docket
2
no. 66-1)); LeBlanc, et al., supra n.8 (Ex. 7 to Resp. (docket no. 66-1)).
3
In light of the broad discretion granted to States to craft a manageable Medicaid
4
5 plan, plaintiffs have not shown that the proposed 2011 reductions fail to satisfy the

6 purpose of Washington’s program, namely providing disabled individuals with

7 assistance with their ADLs and IADLs. WAC 388-106-0010. Consequently, on the

8
record before the Court, plaintiffs have not shown a likelihood of success on the merits
9
of their sufficiency claim.
10

11

c. Comparability Requirement

12

Medicaid requires States to provide “comparable services when individuals

13 have comparable needs.” 42 U.S.C. § 1396a(a)(10)(B). The comparability
14
requirement is violated when beneficiaries with the same level of need are treated
15
differently. Jenkins v. Wash. Dep’t of Health & Human Servs., 160 Wn.2d 287, 157
16
17 P.3d 388 (2007). In Jenkins, a number of Medicaid beneficiaries sought to enjoin

18 DSHS from enforcing a regulation that reduced a beneficiary’s maximum authorized

19 personal care service hours by fifteen percent if the beneficiary happened to live with
20
his or her care provider. Id. at 290. Individuals who did not live with their care
21
providers did not receive a reduction. Id. The fifteen percent reduction applied
22
23 automatically, and did not require DSHS to evaluate a beneficiary’s individual

24 circumstances. Id. at 292. The Washington Supreme Court concluded that the State

25 had violated the comparability requirement because the rule treated beneficiaries in the
26

ORDER - 18

1 same classification differently. Id. at 300 (“[N]o reduction is justified unless an
2 individual determination is made supporting that reclassification.” (emphasis added)).9
3
Here, plaintiffs contend that DSHS’s proposed reduction would violate the
4
5 comparability requirement because it does not take into consideration beneficiaries’

6 individualized needs. Plaintiffs do not contend, however, that the planned reductions

7 treat individuals with comparable needs differently. To the contrary, the proposed
8 reductions treat all similarly-situated beneficiaries identically.10 All individuals in the
9
same classification face the same reduction. Plaintiffs have not shown likely success
10
11 on the merits of their comparability claim under the Medicaid Act.

12

d. Free Choice Requirement

13

Medicaid also requires that beneficiaries be “informed of the feasible

14
alternatives” to institutional care, and have individual choice. The Ninth Circuit has
15
held that parties do not have free choice where the purported alternatives to
16

17 institutional care are inadequate to meet their needs. See Ball v. Rodgers, 492 F.3d

18 9 Jenkins cannot be read to require that DSHS treat individuals in different CARE classifications

similarly because DSHS has already determined through CARE that the individuals in the different 19 classifications are not comparable. Moreover, the Court notes that DSHS is required by statute to give

20

priority in any funding reduction to individuals classified in the highest need category, so the legislature has already contemplated that individuals should be treated differently depending on the

21 acuity of their medical condition. See RCW 74.09.520(4).

22 10 To the extent that plaintiffs argue Jenkins requires an individual assessment of need following any reduction in services, plaintiffs appear to call into question the entire CARE system. As noted by the
23 dissent in Jenkins, the number of base hours in WAC 388-106-0125 “is not a number of hours that an individual has been specifically assessed to require – the base number is a nonspecific, interim
24 allocation associated with the classification group.” 160 Wn.2d at 314 (Fairhurst, J., dissenting) (emphasis in original). Consequently, an individualized assessment of need following a reduction in
25 hours would be meaningless because the initial allocation of hours was not a function of need in the first instance. Plaintiffs do not, however, argue that the entire CARE system is inconsistent with
26 Medicaid, and the Court declines to address the issue in the abstract.

ORDER - 19

1 1094, 1107 (9th Cir. 2007). Plaintiffs argue that they lack free choice because the
2
reduced hours of personal care service will necessarily be insufficient to provide a
3
genuine alternative to institutional care. As with their other Medicaid claims, plaintiffs
4
5 have failed to make an adequate showing that CARE reflects the minimum number of
6 personal care service hours necessary to maintain adequate in-home care, and as such,
7 they have not shown a likelihood of success on the merits of their free choice claim.
8
e. Federal Approval Requirement
9
Plaintiffs’ final contention under the Medicaid Act is that DSHS’s proposed
10
11 reductions in personal care service hours require federal approval by CMS. Federal
12 approval is not required because Washington’s Medicaid plan does not describe a
13 minimum number of personal care service hours or, for that matter, a method of
14
calculating personal care service hours. See Ex. 6 to Brenneke Decl. (docket no. 12).
15
As such, the planned reductions do not amend the state plan or trigger the need for
16
17 federal approval. See Freeman, 2010 WL 3720285 at *9 (“Because [Washington’s]
18 state Medicaid plan does not indicate the number of hours or the methodology to be
19 used in determining the number of hours to be provided to recipients, any modification
20
to that methodology need not be reflected in an amendment to the state plan.”).
21
Plaintiffs have failed to show a likelihood of success on the merits of this claim.11
22
23
24 11 In Freeman, Judge Bryan noted that the State sought retroactive approval of the 2009 reductions from CMS after the plaintiffs filed suit in that case. 2010 WL 3720285 at *10. Here, plaintiffs
25 contend that the State’s retroactive request for approval in Freeman constitutes an admission that any reduction in personal care services requires federal approval. Reply at 12 (docket no. 69). The Court
26 is not persuaded by this argument. The State’s decision to make a retroactive request for approval of the 2009 reductions can also be viewed as a reasonable response to the lawsuit filed by the plaintiffs in
ORDER - 20

1

2. Americans with Disabilities Act Claims

2
The Americans with Disabilities Act (“ADA”) precludes public entities from
3
administering programs in ways that have the effect of segregating disabled
4

5 individuals from the general community. Olmstead v. L.C. ex rel Zimring, 527 U.S.

6 581 (1999). The ADA’s “integration mandate” requires that persons with disabilities

7 receive services in the most integrated setting appropriate to their needs. Cota v.
8
Maxwell-Jolly, 688 F. Supp. 2d 980, 994 (N.D. Cal. 2010) (citing Olmstead, 527 U.S.
9
at 597). To analyze whether a State’s actions violate the ADA’s integration mandate,
10
11 the Court must apply the following three-prong test: (1) whether the State’s treatment

12 professionals have determined that community placement is appropriate; (2) whether

13 the affected persons do not oppose such treatment; and (3) whether the placement can
14
be reasonably accommodated, “taking into account the resources available to the State
15
and the needs of others with . . . disabilities.” Olmstead, 527 U.S. at 607 (emphasis
16
17 added).

18

The Ninth Circuit clarified the scope of the ADA’s integration mandate in Arc

19 of Wash. State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005). In that case, the
20
plaintiffs alleged that the State of Washington’s cap on the number of individuals who
21
could participate in its community care programs violated the ADA. Id. at 617. The
22
23 Ninth Circuit rejected the plaintiffs’ contention, holding that so long as a State is

24
25 Freeman, who alleged that the State had failed to obtain required federal approval. Moreover, if the Court accepted plaintiffs’ argument, it would create a disincentive for the State to seek approval in the
26 future out of fear that the request for approval would be deemed an admission that federal approval was necessary. Cf. Fed. R. Evid. 407.

ORDER - 21

1 genuinely and effectively in the process of deinstitutionalizing disabled persons with
2
an even hand, the court would not interfere. Id. at 620. Based on the record in that
3
case, the Ninth Circuit found that Washington had a genuine commitment to
4
5 deinstitutionalization, and declined to find an ADA violation. Id. at 621.

6

In contrast, in a prior case, the Ninth Circuit concluded that a State violates the

7 ADA’s integration mandate when the State categorically refuses to provide a process
8
for deinstitutionalization for an entire class of individuals. Townsend v. Quasim, 328
9
F.3d 511 (9th Cir. 2003). In Townsend, the Ninth Circuit held that a State program
10
11 that provided community-based care for persons falling below a certain income level

12 but not for disabled individuals with higher incomes, violated the ADA’s integration

13 mandate by discriminating against a category of disabled persons. Id. at 514. Unlike

14
in Arc of Washington, in Townsend, all Medicaid-eligible disabled persons did not
15
have the opportunity to participate in the program once space became available. Id.
16

17

In the present case, plaintiffs contend that DSHS’s proposed 2011 reductions

18 will violate the ADA’s integration mandate by forcing individuals to either forego

19 needed care or move to a nursing home. The ADA, however, does not require the
20
“immediate, state-wide deinstitutionalization of all eligible . . . disabled persons, nor
21
that a State’s plan be always and in all cases successful.” Sanchez v. Johnson, 416
22
23 F.3d 1051, 1067-68 (9th Cir. 2005). Plaintiffs have failed to present facts that support

24 their contention that DSHS’s proposed reductions pose a real and immediate threat of

25 mass institutionalization. Moreover, this case does not involve the type of wholesale
26

ORDER - 22

1 denial of benefits to an entire class of disabled individuals that was at issue in
2
Townsend. To the contrary, the evidence produced by DSHS demonstrates that
3
Washington has a genuine and effective commitment to deinstitutionalization. See Arc
4
5 of Washington, 427 F.3d at 621. Over the last decade, the number of institutionalized

6 disabled individuals in Washington has steadily declined. Leitch Decl. at ¶ 2 (docket

7 no. 67); Moss Decl. at ¶ 2 (docket no. 68). As in the Arc of Washington case, the

8
Court sees no basis for intervening under these circumstances. Plaintiffs therefore
9
have not shown a likelihood of success on the merits of their ADA claim.
10

11

3. Due Process

12

Plaintiffs’ final argument is that DSHS’s arbitrary, budget-driven service

13 reductions violate the Due Process Clause of the Fourteenth Amendment to the United
14
States Constitution. Plaintiffs contend that the Due Process Clause entitles them to
15
notice and an opportunity for a hearing prior to the reduction of any benefits.
16
17 Plaintiffs have not, however, analyzed the issue under constitutional standards, but

18 rather rely solely on regulatory notice requirements. Under Medicaid regulations,

19 certain actions require notice and an opportunity to be heard, see, e.g., 42 C.F.R.
20
§ 431.200, but recipients are not entitled to a hearing if the sole issue is a state law
21
requiring an automatic change affecting some or all recipients.12 42 C.F.R.
22

23
24 12 Plaintiffs cite Ryan v. Dreyfus, 2009 WL 2914139 (W.D. Wash.) for the proposition that failure to provide notice and hearing rights upon termination of Medicaid benefits is a violation of the Due
25 Process Clause. In Ryan, DSHS terminated a number of Medicaid beneficiaries’ rights to receive skilled nursing services through the Adult Day Health (“ADH”) program. Id. at * 1. DSHS conceded
26 that the plaintiffs were entitled to notice and hearing rights because it had already determined that the beneficiaries required ADH services as a medical necessity. Id. at *2-3; see also 42 C.F.R.

ORDER - 23

1 § 431.220(b). The limitation on the hearing requirement arises out of the practical
2
consideration that, absent some factual dispute about an individual’s right to benefits, a
3
hearing would serve little, if any purpose. See Rosen v. Goetz, 410 F.3d 919, 926 (6th
4
5 Cir. 2005); Benton v. Rhodes, 586 F.2d 1, 3 (6th Cir. 1978) (“[M]atters of law and
6 policy are not subject to any hearing requirements under the applicable regulations,
7 whether the hearing be pre- or post-termination.”).
8
Plaintiffs contend that 42 C.F.R. § 431.220(b) does not apply to eliminate their
9
right to a hearing, relying heavily on Claus v. Smith, 519 F. Supp. 829 (N.D. Ind.
10
11 1981), for the proposition that when an agency has discretion on how to implement a
12 budget cut under Medicaid, the blanket elimination of hearing rights does not apply.
13 In Claus, the court considered an Indiana statute that imposed a co-payment
14
requirement on all Medicaid beneficiaries. 519 F. Supp. at 831. The statute also
15
granted the Indiana Department of Public Welfare the sole discretion to exempt
16
17 individuals from the co-payment requirement for hardship. Id. The court concluded
18 that since the statute vested the State agency with the sole discretion to exempt
19 individuals from compliance with the co-payment requirement, beneficiaries were
20
entitled to notice and hearing rights. Id. at 833. In Claus, the right to an exemption for
21
hardship necessarily raised a factual dispute that gave rise to a hearing requirement.
22
23 Conversely, in this case, DSHS has proposed an across-the-board reduction in personal
24
§ 435.930(b) (requiring State agencies to continue to provide Medicaid services regularly to all 25 eligible individuals until they are found to be ineligible). Ryan is inapposite because the present case
does not involve a termination, without notice, of services for which plaintiffs were eligible. Instead, 26 DSHS merely reduced the level of personal care services in an equivalent fashion as to similarly-
situated beneficiaries.
ORDER - 24

1 care services – purely a question of policy that would not be proper for consideration
2
in a hearing. Moreover, DSHS did not have discretion on how to impose the 2011
3
reductions in personal care services; by statute, DSHS is obligated to give preference
4
5 to beneficiaries with the greatest need when implementing budget reductions. See

6 RCW 74.09.520(4). Accordingly, plaintiffs have not shown a likelihood of success on

7 the merits of their due process claim.

8
D.
9
10

Balance of Equities and Public Interest Given, on the one hand, the speculative nature of the harm that plaintiffs allege

11 will result in the absence of a temporary restraining order and, on the other hand, the

12 fiscal consequences of an injunction to the State, the balance of equities weighs against

13 granting the relief that plaintiffs seek. Because spending must be curbed before the
14
end of the current fiscal year, any delay in implementing the reductions at issue will
15
result in either greater decreases at a later time to reach the same financial goals or cuts
16
17 to other programs. Moss Decl. at ¶ 10 (docket no. 68). DSHS has conducted a

18 comprehensive review to determine how best to accomplish the fiscal goals, and it has

19 applied its expertise in weighing the competing interests of the various clients it
20
serves. The Court is in no position to substitute its judgment for that of DSHS
21
concerning which programs will be least affected by budget curtailments. The Court,
22
23 however, observes that the personal care services at issue do not encompass the types

24 of skilled or clinical services generally associated with acute or critical medical

25 attention and do not appear to warrant being treated as somehow sacred or untouchable
26

ORDER - 25

1 in connection with the difficult choices DSHS must make. The Court concludes that
2
the public interest would not be served by forcing DSHS to target perhaps more
3
vulnerable individuals or programs while the merits of plaintiffs’ claims in this matter
4
5 are resolved.

6 Conclusion

7

For the foregoing reasons, the Court has denied plaintiffs’ motion for a

8
temporary restraining order, docket no. 11.
9
IT IS SO ORDERED.
10

11

The Clerk is directed to send a copy of this Order to all counsel of record.

12

DATED this 5th day of January, 2011.

13

14

A

15
Thomas S. Zilly

16

United States District Judge

17

18

19

20

21

22

23

24

25

26

ORDER - 26

 
 Case 2:10-cv-02052-TSZ Document 11 Filed 12/23/10 Page 1 of 25

1

Honorable Thomas S. Zilly

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8

M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., No. 2:10-cv-02052-TSZ

9 K.S., T.M., A.R., M.J.B., J.H., H.C., THE ARC

OF WASHINGTON, SERVICE EMPLOYEES MOTION FOR TEMPORARY

10 INTERNATIONAL UNION HEALTHCARE RESTRAINING ORDER AND

775NW and PUGET SOUND ALLIANCE

PRELIMINARY INJUNCTION

11 FOR RETIRED AMERICANS,

Noted on Motion Calendar for TRO:

12

Plaintiffs,

To be set by Court

13

v.

14 SUSAN DREYFUS, in her professional capacity as Secretary of Washington State
15 Department of Social and Health Services and WASHINGTON STATE DEPARTMENT OF
16 SOCIAL AND HEALTH SERVICES, a Department of the State of Washington,
17 Defendants.
18

Preliminary Injunction: Friday, January 14, 2011
ORAL ARGUMENT REQUESTED

19

20

21

22

23

24

25

26

27

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) -
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1

I. INTRODUCTION

2

On January 1, 2011, the State of Washington plans to reduce the in-home personal care

3 hours of 40,000 severely disabled and low-income Medicaid recipients by an average of 10%

4 below the level the State’s own individualized assessment process has deemed necessary for

5 them to remain safely at home. This budget-driven cut follows the 2009/2010 reduction of their

6 personal care hours to an average of 4% below assessed needs. With the 1/1/2011 cut, the State

7 acknowledges “some needed tasks may not be completed on a regular basis” and “[i]n some

8 cases, a safe in-home plan of care will not be possible and clients may need to go to community

9 residential or nursing facility settings,” more expensive care for which they are eligible.

10

Beneficiaries will be deprived of necessary care resulting in serious health risks and the

11 displacement from their families and their homes. Plaintiffs’ health and freedom to live at home

12 depend upon their continued access to personal care hours at the level the State assessed them to

13 need. Unless enjoined, these reductions will cause immediate and irreparable harm to the very

14 Medicaid beneficiaries the in-home care programs were designed to serve. They will lose

15 providers who can’t afford to work for free, have gaps in care, and do without essential services

16 such as eating, transferring position, using the toilet, and bathing that will create an imminent

17 and serious risk of harm to their health and safety.

18

Plaintiffs are likely to prevail on their legal claims. The reductions place Plaintiffs at risk

19 of having to move to nursing homes or other institutional facilities just to get the Medicaid long-

20 term care services to which they are entitled. This violates the Americans with Disabilities Act

21 of 1990, 42 U.S.C. § 12312 (“ADA”), and Section 504 of the Rehabilitation Act of 1973, 29

22 U.S.C. § 794 (“Section 504”). The deprivation of needed services without adequate notice,

23 individual reassessments, transition to replacement services, or an opportunity to be heard, 24 deprives Plaintiffs of Medicaid benefits without Due Process afforded by the 14th Amendment to

25 the United States Constitution. In addition, the reduction of necessary health care services on

26 arbitrary, budget-drive grounds violates the requirements of Title XIX of the Social Security Act,

27 42 U.S.C. § 1396a (“the Medicaid Act”) that States provide (1) services according to reasonable

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) - 1
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1 standards; (2) that are sufficient in amount, duration, and scope to reasonably achieve their

2 purposes; (3) comparable to Medicaid services to individuals with similar needs; and (4) the right

3 to choose non-institutional care options. Defendants’ implementation of these changes without

4 federal approval also violates the Medicaid Act.

5

II. ISSUE PRESENTED

6

Should this Court issue a Temporary Restraining Order preserving the status quo and

7 prohibiting Defendants from implementing reductions of Medicaid in home personal care hours

8 below assessed need, until a preliminary injunction hearing can be held?

9

III. EVIDENCE RELIED UPON

10

Plaintiffs rely upon their detailed Complaint, incorporated here by reference, the

11 Declaration of Andrea Brenneke (Brenneke Dec.) and its exhibits, as well as the 42 declarations

12 of experts, providers, guardians, Plaintiffs and others listed on Ex. A to this Motion.

13

IV. SUMMARY OF FACTS

14

A. Background on Washington State System

15

Defendants administer multiple Medicaid programs to provide in-home personal care

16 services for elderly and other disabled people. The beneficiaries have severe disabilities

17 including cognitive impairments such as dementia or Alzheimer’s; chronic conditions arising out

18 of traumatic brain or spinal cord injuries, Multiple Sclerosis, Muscular Dystrophy, or Diabetes;

19 developmental disabilities; and various forms of physical disabilities. Reed Dec. ¶11.

20

Approximately 15,000 individuals receive such in-home personal care services under the

21 State Medicaid Plan’s Medicaid Personal Care (MPC) program, and almost 30,000 obtain them

22 through various Medicaid waiver programs. RCW 74.39A.030; Reed Dec. ¶¶19-20. These

23 programs enable the beneficiaries to remain in their homes with assistance in basic activities of

24 daily living: eating, bathing, toileting, mobility, catheter and bowel care, turning and

25 repositioning, passive range of motion, dressing, medication management, essential shopping,

26 and housework. WAC 388-106-0075, 388-106-0105, 388-106-0210.

27

Without in-home personal care services, the beneficiaries would be at serious and

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1 imminent risk of institutionalization. DSHS individually assessed and certified that all of the

2 individuals receiving in-home personal care services under waiver programs qualify for nursing

3 facility or intermediate care facility for the mentally retarded (ICFMR) levels of care without in-

4 home services; the vast majority of the MPC beneficiaries are so disabled that they, too, meet the

5 functional eligibility criteria entitling them to nursing facility level of care. See WAC 388-106-

6 0310(4), 388-106-0510 (4); 388-405-0030(2). See, also, Reed Dec. ¶19.

7

Washington prioritizes in-home over institutional care, based on consumer preferences,

8 the integration mandate of federal law, and cost effectiveness. Reed Dec. ¶¶21-23, 35-36.

9 Home-based care respects individual autonomy, preserves integration in the community and it

10 saves the State enormous resources. Reed Dec. ¶¶10, 20, 23, Exs. 1-2; Black Dec. ¶34; LaPlante

11 Dec. ¶¶18-20. It costs the State an average of $1,443 per month, as compared to monthly

12 nursing home costs of $4,100. Reed Dec. ¶20.

13

Since approximately 2003, DSHS has utilized the centralized, automated Comprehensive

14 Assessment Reporting Evaluation (CARE) system in order to assess individual needs and assign

15 in-home personal care hours to meet those individually assessed needs. Reed Dec. ¶¶26-28, 32;

16 Black Dec. ¶¶6-9. The CARE assessment relies upon in-person evaluations and information 17 from all sources; it is based upon standardized screening tools1 that have been proved to increase

18 the accuracy and reliability of clinical assessments. Black Dec. ¶¶8-12, 18, 20-21, 25. DSHS

19 determines unmet needs, and classifies beneficiaries into acuity and need-based categories based

20 upon the individualized CARE assessments of cognitive performance, clinical complexity,

21 mood/behaviors symptoms, and Activities of Daily Living (ADL)s. WAC 388-106-0085.

22

DSHS authorizes each beneficiary to receive Medicaid in-home personal care service

23 hours based on the acuity and need-based categories2 following individualized: CARE

24
1 For the DDD programs, DSHS has incorporated the Supports Intensity Scale (“SIS”) into the CARE assessment
25 process. WAC 388-828-4000. The SIS is a nationally normed instrument that applies specific and uniform
standards to determine the level of care needed for developmentally disabled individuals. Black Dec., ¶12;
26 Brenneke Dec., Ex. 10 (Basic Plus Waiver, Appendix B-6: 4). Hereinafter, we use the term “CARE tool” to refer to
all individualized assessments made using the CARE tool, including those that incorporate the SIS tool.
27 2 On the basis of those CARE assessments, DSHS determines the amount of medically necessary covered services
through assignment of beneficiaries to acuity and need-based categories, with allocation of base personal care hours

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1 assessment; finding of financial and functional eligibility for services; consent for services and

2 approval of the plan of care; and selection of an Individual or Agency provider qualified for

3 payment by DSHS, as required by WAC 388-106-0045; Black Dec. ¶¶9-10. The hours

4 authorized represent the minimum number that is essential to permit each individual to remain

5 safely in his or her home, based on scientific time studies that connect tasks with hours of service 6 and resource allocation algorithms. Reed Dec. ¶¶29-30; Black Dec. ¶¶14, 26, 28.3 “The State

7 has never provided benefits or authorized hours above those necessary to meet an individual’s

8 minimum health and safety needs. The benefit level is, by definition, the minimum; there simply

9 is no fat to cut in the hours authorized by the CARE tool.” Reed Dec. ¶¶3-4, 9, 30.

10

The CARE assessment results and Medicaid authorizations are summarized in a “care

11 plan” or Individual Service Plan (ISP). Black Dec. ¶14. DSHS provides beneficiaries (and/or

12 their guardians) with a copy of the CARE assessment, care plan/ISP, and a Planned Action

13 Notice (PAN) that summarizes the authorized hours of monthly in-home personal care and may

14 be appealed. Black Dec. ¶¶15. The approved provider also receives these notices and directives

15 as to the tasks to perform and the number of hours awarded to perform them. Id. Through the

16 CARE assessment, the care plan/IP, and PAN, the amount, duration, and scope of the medically

17 necessary in-home personal care services are awarded to meet individual needs.

18

Through the CARE assessment process, beneficiaries are afforded choice among types of

19 long term care (in-home, community residential settings, or institutional settings) as well as the

20 selection of qualified providers, and must agree to the Care Plan or ISP that sets the number of

21 personal care hours they can rely upon for the year. Reed Dec. ¶¶12, 14, 33, 38-40; Black Dec. 22 ¶¶14, 16.4 See also Brenneke Dec., Ex. 16 (choice form).

23
to meet the assessed needs in each category, with additional individual adjustments and possible, but infrequent,
24 exceptions to rules. Reed Dec. ¶29; WAC 388-106-0055; WAC 388-106-0125.
3 Although Defendants may argue otherwise, “It is not true that the CARE assessment tool simply measures client
25 need relative to other clients in order to allocate fairly the limited resources available for personal care services.
Rather, [it] is designed to, has proven effective to, and is used by the Department to measure the unmet needs that
26 must minimally be met in order to support a client in his or her home without compromising health or safety.”
Black Dec. ¶28.
27 4 In addition to in-home personal care services, Defendants provide long-term care and personal care services in
nursing facilities, intermediate care facilities for developmentally disabled individuals, and community based

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1

The CARE assessment occurs annually, or when there is a change in the condition of the

2 beneficiary, provider, or services. Black Dec. ¶¶10, 17; WAC 388-106-0050(1). Changes to the

3 care plan/ISP, including the amount of benefits awarded, are only made for individually changed

4 circumstances, requiring reassessment. WAC 388-106-0140; 388-106-0050(2).

5

B. Plaintiffs and Other Class Members Are Disabled Beneficiaries of In-Home Care Services Who Require Services to Remain In Their Homes

6

Plaintiffs are severely disabled and the in-home personal care services permit them to

7 continue to live safely and independently in their homes. For example, 55-year-old Plaintiff

8 C.B.’s history of heart attacks and strokes left her with limited mobility and she suffers from

9 chronic illnesses including Hepatitis B and C. C.B. Dec. ¶¶4-8. DSHS determined that she is so

10 disabled she is eligible for nursing facility level care, but she chooses to live in her own home

11 with her provider’s assistance with personal hygiene, cooking, and trips to the doctor. Id. at

12 ¶¶11, 16. These services permit her to live independently, enjoy her “relationship with friends

13 and neighbors,” and “easily interact with other non-disabled people.” Id. at ¶13.

14

Jane B. is the guardian of four adopted adult children: A.B., M.B., An.B. and J.B. They

15 suffer from physical, cognitive, and psychiatric disabilities, including Down Syndrome, Multiple

16 Sclerosis (MS), autism, Cerebral Palsy, epilepsy, depression and anxiety disorders. J.B. Dec.

17 ¶10a-d. J.B. is physically disabled and cannot meet all their needs. Id. at ¶22. The monthly 495

18 hours of in-home care services allow them to live together as family. Id. at ¶¶4a-d, 15a-d.

19

Plaintiffs require assistance with a variety of fundamental and often very personal tasks,

20 including bathing, dressing, and using the toilet.5 A.R. is paralyzed on her right side; her care

21 provider helps her move to the toilet without injury. Frederick Dec. ¶11. She uses an ileostomy

22 bag for her bowel movements that her provider must clean every two hours, round-the-clock. Id.

23 Many Plaintiffs are unable to use the toilet reliably or at all, require provider help with frequent

24
residential settings such as Adult Family Homes, Boarding Homes, and Assisted Living Facilities. RCW 74.09.520,
25 74.09.700, 74.39A.005; Reed Dec. ¶¶10, 12, 39; Black Dec. ¶6.
5 E.g., A.H. Dec. ¶6c; C.B. Dec. ¶11c; D.V.S. Dec. ¶7a, c-d; D.W. Dec. ¶13h; J.B. Dec. ¶10a-d; K.S. Dec. ¶8; M.J.B
26 Dec. ¶3; N.N.A Dec. ¶3; S.J. Dec. ¶8b, d; Albott Dec. ¶10; Allington Dec. ¶13c, e-g; Braddock Dec. ¶18a-c;
Chatwin Dec. ¶14b-c; Davis Dec. ¶16e; Dockstader Dec. ¶10c-d, f; Faatoafe Dec. ¶9, 12b-c, g; Flint Dec. ¶10, 12a-
27 c; Frederick Dec. ¶11b-e; Guin Dec. ¶13d-e, 18 a, c, e; Hayes Dec. ¶13g-h, n, p; Hays Dec. ¶15a, c; Ivonav Dec. ¶13
b, d-e; Maxson Dec. ¶8d-e; McIntosh Dec. ¶9b; Paolino Dec. ¶14 c-d, f, n; Partridge Dec. ¶5a-d; Starr Dec. ¶¶7, 21.

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) - 5
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Case 2:10-cv-02052-TSZ Document 11 Filed 12/23/10 Page 7 of 25

1 episodes of incontinence,6 and regular perineal care.7

2

Many Plaintiffs need assistance with meal preparation, because their physical

3 disabilities,8 dementia or other cognitive impairments9 prevent them from cooking. Providers

4 ensure continued health and nutrition, particularly for beneficiaries in need of special diets,10 and

5 assistance to eat, such as spoon feeding or help swallowing.11 Providers clean and do laundry.12

6

Many Plaintiffs rely on provider assistance to move around within their own homes, get

7 out of bed, or turn and reposition themselves.13 Mobility limitations make it impossible for

8 many to go out into the community on their own,14 so providers accompany them to medical

9 appointments,15 and assist with essential shopping and errands.16

10

Providers also ensure that Plaintiffs take prescription medication at the right time and in

11 the right amounts,17 monitor their clients’ physical state (for seizures or blood glucose levels),18

12
13 6 E.g., A.H. Dec. ¶6c; K.S. Dec. ¶8; S.J. Dec. ¶8d; Albott Dec. ¶10; Allington Dec. ¶13l; Braddock Dec. ¶10a-c;
Faatoafe Dec. ¶12b; Guin Dec. ¶13d; Maxson Dec. ¶8d; Paolino Dec. ¶14c; Partridge Dec. ¶9d.
14 7 J.B. Dec. ¶10a, d; Maxson Dec. ¶8d; Starr Dec. ¶21.
8 E.g., A.H. Dec. 6d; C.B. Dec. 11b; D.V.S. Dec. 7b; D.W. Dec. 13e-f; J.B. Dec. 10a; K.S. Dec. 9; N.N.A Dec. 3;
15 S.J. Dec. 8e; Albott Dec. 9; Chatwin Dec. 14a; Davis Dec. 16b-c; Docstader Dec. 10b; Faatoafe Dec. 12a; Flint Dec.
12e; Frederick Dec. 11g; Guin Dec. 13c; Hayes 13a-b; Ivonav Dec. 13j; McIntosh Dec. 9c-d; Paolino Dec. 14b, f.
16 9 E.g., D.V.S. Dec. 7b; N.N.A. Dec. 3; Allington Dec. 13d, m; Chatwin Dec. 14a; Guin Dec. 17, 18d; Hays Dec.
15b; Ivonav Dec. 13c, j; Maxson Dec. 8a; Partridge Dec. ¶9c.
17 10 E.g., A.H. Dec. 6d; C.B. Dec. 11b; D.W. Dec. 13e; K.S. Dec. 9; Albott Dec. 8; Davis Dec. 16b-c; Guin Dec. 13c;
Hayes Dec. 13a; Maxson Dec. 8b.
18 11 E.g., D.W. Dec. ¶13f; J.B. Dec. ¶10a; S.J. Dec. ¶8e; Dockstader Dec. ¶10b; Hayes Dec. ¶13b; Paolino Dec. ¶14g;
Partridge Dec. ¶5a; Starr Dec. ¶7.
19 12 E.g., C.B. Dec. ¶11b; D.V.S. Dec. ¶7g; D.W. Dec. ¶13a; K.S. Dec. ¶11; N.N.A. Dec. ¶3; Albott Dec. ¶9;
Allington Dec. ¶13l; Davis Dec. ¶16d; Dockstader Dec. ¶10j; Flint Dec. ¶12g; Guin Dec. ¶13f; Hayes Dec. ¶13d;
20 Hays Dec. ¶15h; Ivonav Dec. ¶13k; Maxson Dec. ¶8f; Paolino Dec. ¶14h. Many care beneficiaries risk injuries if
they attempt to clean their homes themselves. For those with suppressed immune systems, a clean home is
21 particularly important. C.B. Dec. ¶11b; Davis Dec. ¶16d.
13 E.g., C.B. Dec. ¶11a; D.V.S. Dec. ¶7a; N.N.A. Dec. ¶3; Davis Dec. ¶16a-b; Dockstader Dec. ¶10a; Faatoafe Dec.
22 ¶12d; Flint Dec. ¶12d; Guin Dec. ¶13b; Hayes Dec. ¶13i-l; Ivonav Dec. ¶13a, f; Maxson Dec. ¶8g-h; Paolino Dec.
¶14e, m; Partridge Dec. ¶9a.
23 14 E.g., J.B. Dec. 10c-d; Allington Dec. 13j; Guin Dec. 18f; Hays Dec. 15f; Ivonav Dec. 13h; Paolino Dec. 14l
15 E.g., C.B. Dec. ¶11d-e; D.W. Dec. ¶13c; K.S. Dec. ¶11; Allington Dec. ¶13i; Davis Dec. ¶16f; Flint Dec. ¶12h;
24 Guin Dec. ¶13g; Hayes Dec. ¶13c; Hays Dec. ¶15f; Ivonav Dec. ¶13h; McIntosh Dec. ¶9f, 16d; Paolino Dec. ¶14c.
16 E.g., A.H. Dec. ¶6b; C.B. Dec. ¶11; K.S. Dec. ¶9, 12; N.N.A. Dec. ¶3; Albott Dec. ¶9; Allington Dec. ¶13k; Davis
25 Dec. ¶16b; Guin Dec. ¶13f; Hayes Dec. ¶13o; Hays Dec. ¶15g; Ivonav Dec. ¶13h-i; McIntosh Dec. ¶8d; Paolino
Dec. ¶14j.
26 17 E.g., A.H. Dec. ¶6e; C.B. Dec. ¶11g; D.V.S. Dec. ¶7d; D.W. Dec. ¶11; K.S. Dec. ¶10; N.N.A. Dec. ¶3; S.J. Dec.
¶8a; Albott Dec. ¶8; Allington Dec. ¶13h; Braddock Dec. ¶18e; Dockstader Dec. ¶10h; Faatoafe Dec. ¶12e; Flint
27 Dec. ¶12f; Guin Dec. ¶13a, 18g; Hayes Dec. ¶13 e-f; Hays Dec. ¶15e; Ivonav Dec. ¶13g; Maxson Dec. ¶8b;
McIntosh Dec. ¶9e; Paolino Dec. ¶14a; Partridge Dec. ¶9i.

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) - 6
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Case 2:10-cv-02052-TSZ Document 11 Filed 12/23/10 Page 8 of 25

1 and directly administer medication through subcutaneous injections or feeding tubes.19 Clients’ 2 behavioral and mood disorders make personal care considerably more challenging.20

3

Personal care services providers work as Independent Providers (IP)s, who are chosen by

4 the beneficiaries themselves, or Agency Providers (AP)s, who are hired through agencies. WAC 5 388-106-0040.21 Some IPs became providers because a loved one needed care.22

6

C. Reduction in In-Home Personal Care Services

7

In September 2010, Governor Christine O. Gregoire issued Executive Order 10-04, which

8 ordered the reduction of general funds appropriations by 6.287 percent, the shortfall in the

9 current fiscal period. Brenneke Dec., Exs. 2, 3. In response, Defendants submitted a plan that

10 provided for a ten percent reduction in personal care hours for Medicaid in-home care

11 beneficiaries – a reduction far higher than the average reduction in spending required of the

12 agency. Id., Ex. 4 at 5-6, Ex. 5 at 1-2. That plan explained that “[t]he actual reduction will vary

13 from 6 percent to 18.4 percent based upon acuity,” with lower acuity clients receiving higher

14 percentage reductions, and acknowledged that this reduction would be on top of an average four

15 percent decrease that took place in FY 2010 and some additional targeted reductions in FY 2011.

16 Ibid.; see also Black Dec. ¶29 (discussing FY 2010 cuts implemented in 2009).

17

That DSHS plan states: “With reduced hours, in-home clients will need to choose which

18 tasks their employees spend their time on and there may not be enough time to complete all

19 tasks”; at the higher percentage reductions dome needed tasks might not be completed on a

20 regular basis; clients will have longer times without paid care; and “[i]n some cases, a safe in-

21
18 Leamy Dec. ¶6; D.V.S. Dec. ¶7e; J.B. Dec. ¶10b; .S.J. Dec. ¶8; Chatwin Dec. ¶14e; Faatoafe Dec. ¶10, 12e; Guin
22 Dec. ¶18a; Hayes Dec. ¶5, 12, 13f, n; Maxson Dec. ¶7; Paolino Dec. ¶14n.
19 Faatoafe Dec. ¶12a; Hayes Dec. ¶13f; Maxson Dec. ¶8b; Partridge Dec. ¶9i.
23 20 D.W. Dec. ¶9a-b, 22e; Maxson Dec. ¶3, 8i-e (pg. 4); C.B. Dec. ¶11g, 13; J.B. Dec. ¶10a-d; Albott Dec. ¶5;
Allington Dec. ¶11-12; Braddock Dec. ¶17; Chatwin Dec. ¶13; Davis Dec. ¶15, 16g, 26d; Flint Dec. ¶11; Guin Dec.
24 ¶12, 31; Hays Dec. ¶5, 14; Ivonav Dec. ¶12; McIntosh Dec. ¶9g, 16g; Paolino Dec. ¶13, 26; Partridge Dec. ¶¶5a-d,
9f; Starr Dec. ¶¶3, 9, 16.
25 21 Glickman Dec. ¶8; Elliott Dec. ¶6.
22 Ibid.; see also, e.g., A.H. Dec. 4; DVS Dec. 4; JB Dec. 2; MJB Dec. 2; NNA Dec. 4; Albott Dec. 3; Allington
26 Dec. 3-4; Braddock Dec. 2-3; Chatwin Dec. 2; Flint Dec. 2; Guin Dec. 3; Hays Dec. 3; Ivonav Decl 3; Maxson Dec.
2; Paolino Dec. 2-3. But many beneficiaries employ unrelated providers. C.B. Dec. 3; D.W. Dec. 3; K.S. Dec. 6; S.J.
27 Dec. 3; Davis Dec. 4; Dockstader Dec. 2-3; Faatoafe Dec. 2, 4; Frederick Dec. 3; Hayes Dec. 4; McIntosh Dec. 4;
Morrow Dec. 3.

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) - 7
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Case 2:10-cv-02052-TSZ Document 11 Filed 12/23/10 Page 9 of 25

1 home plan of care will not be possible and clients may need to go to community residential or

2 nursing facility settings.” Brenneke Dec., Ex. 4 at 6.

3

On November 30, 2010, DSHS issued an HCS Management Bulletin outlining the

4 agency’s plan to implement the 10% personal care services cut and the specific cuts to base

5 monthly hours for the various classification groups, ranging from 6.4 percent to 25 percent and

6 including reductions of up to 27 hours per month. Id., Ex. 1. The Bulletin directs client letters

7 be mailed the week of December 6, 2010. Id. at 2-3. The letter notifies clients of the hours cuts,

8 but does not provide for individual reassessments or inform them of alternative Medicaid

9 services for which they qualify. It states: “There are no appeal rights for this change . . . because

10 this is a service change directed by the Governor and applies to the entire program.” Id., Ex. 1A.

11

D. The Reduction in In-Home Care Services Will Injure Plaintiffs.

12

The reduction in services effective January 1, 2011, will put Plaintiffs and other

13 beneficiaries at serious risk of injury, deterioration in health, and institutionalization.

14

1. Injury and Effect on Health

15

Plaintiffs will receive fewer essential services,23 have providers less frequently,24 and be

16 left alone.25 Some providers will stop providing services, leaving their clients without care.26

17

Experts agree that unmet needs in activities of daily living “cannot be tolerated for long”

18 and have “immediate and serious consequences” such as injury, worsening health, and even

19 death. Gardner Dec. ¶¶11-18. Unmet need for in-home care services puts beneficiaries in

20 danger of injury and serious deterioration in their mental and physical health. LaPlante Dec. ¶7

21 (higher rates of “discomfort . . ., wasting . . . , injuries due to falls, burns, bedsores” and

22 “contractures”); ¶10. The specific cuts at issue here will reduce services to a level below that

23 23 E.g., C.B. Dec. ¶26; D.W. Dec. ¶22; J.B. Dec. ¶22; K.S. Dec. ¶15; Frederick Dec. ¶18; Dockstader Dec. ¶15;
McIntosh Dec. ¶16; Morrow Dec. ¶6; Partridge Dec. ¶13; Starr Dec. ¶¶25a-b, 26.
24 24 E.g., A.H. Dec. ¶12; C.B. Dec. ¶26; D.V.S. Dec. ¶16; D.W. Dec. ¶22b; K.S. Dec. ¶15; N.N.A. Dec. ¶6; Albott
Dec. ¶12; Davis Dec. ¶26d; Frederick Dec. ¶18; Flint Dec. ¶16; Guin Dec. ¶29; Hays Dec. ¶25; Ivonav Dec. ¶24;
25 McIntosh Dec. ¶16; Morrow Dec. ¶6.
25 E.g., K.S. Dec. ¶15; A.H. Dec. ¶12; C.B. Dec. ¶26; D.V.S. Dec. ¶16; D.W. Dec. ¶22b; N.N.A. Dec. ¶6; Davis
26 Dec. ¶26; Flint Dec. ¶16; Guin Dec. ¶29; Hays Dec. ¶29; Ivonav Dec. ¶24; McIntosh Dec. ¶16; Paolino Dec. ¶24;
Starr Dec. ¶24.
27 26 E.g., S.J. Dec. ¶25, 29; Braddock Dec. ¶27, 32; Faatoafe Dec. ¶23; Frederick Dec. ¶19; Hayes Dec. ¶8; Paolino
Dec. ¶24; see, also, Walsh Dec.

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1 required for beneficiaries “to live safely and healthily.” Id. ¶22. The reductions “will place

2 many people receiving in-home personal care services at immediate risk of serious health

3 deterioration and even death.” Reed Dec. ¶44. “Many consumers will experience immediate

4 and substantial harm from these hours cuts, are likely to have more medical emergencies and

5 hospitalizations, and will experience serious and irreparable harm to their physical and mental

6 health condition.” Black Dec. ¶33. See also, Dapper Dec. ¶¶14-17; Walsh Dec. ¶12 (“the 10%

7 or more reduction of in-home Personal Care Hours will result in hundreds or thousands of cases

8 of . . . hospitalizations, as well as increases in preventable injury and death.”

9

The consequences will be severe and immediate. Without adequate toileting help or care

10 for incontinence, beneficiaries are at risk of skin tearing, infections and bowel obstructions.27

11 Without medication assistance, beneficiaries risk missing necessary medication or taking 12 improper doses.28 With fewer hours of provider assistance, beneficiaries may miss essential 13 medical appointments.29 Those with mobility impairments risk falling when unattended, which 14 can lead to serious injuries, hospitalization, and rapid deterioration.30 Those who cannot be 15 turned or physically adjusted as often as needed will suffer bed sores and muscle problems.31

16 For example, Z.J., a quadriplegic man, requires a two-hour bowel program every morning. If it

17 is delayed, he risks bowel obstruction and possible hospitalization. Faatoafe Dec. ¶20. He must

18 also be turned in bed every two hours to prevent bedsores, which have led to hospitalization in

19 the past. Id. ¶12d. With the reduced hours, his providers will begin his bowel program later in

20 the day, reduce showering if necessary to prevent infections, and be unable to monitor his

21
27 E.g., A.H. Dec. ¶12; Flint Dec. ¶16 (going to the bathroom without assistance will lead to sitting in “her own
22 mess” and potentially “another bladder infection” at which point they may have to remove her kidney); Guin Dec.
¶30 (not changing pull-ups regularly will cause infections.); Hays Dec. ¶15d (diarrhea can lead to needing assistance
23 with cleaning mess, self, and clothes); Leamy Dec. ¶4 (improper incontinence care can lead to skin infections);
Maxson Dec. ¶8d (frequent bathroom accidents and cannot use toilet alone); Partridge Dec. ¶13a.
24 28 E.g., McIntosh Dec. ¶16, 16d; D.V.S. Dec. ¶7d, 16b; D.W. Dec. ¶22a, 22c; N.N.A. Dec. ¶6; Guin Dec. ¶31;
Partridge Dec. ¶13d.
25 29 E.g., D.W. Dec. ¶22a; Davis Dec. ¶26b; McIntosh Dec. ¶16; C.B. Dec. ¶26b.
30 E.g., Leamy Dec. ¶5 (“I have often seen this situation before: when elderly people are left alone, they fall, break a
26 bone, catch pneumonia and die.”); KS Dec. ¶ 15; McIntosh Dec. ¶¶16a-b; AH Dec. ¶11; DVS Dec. ¶¶16a, 18; NNA
Dec. ¶6; Chatwin Dec. ¶¶4d, 23; Davis Dec. ¶26a; Guin Dec. ¶¶30-31; Ivanov Dec. ¶24; Jensen Dec. ¶8c; Maxson
27 Dec. ¶¶8g, 26; Portelance Dec. ¶6.
31 E.g., Portelance Dec. ¶5; J.B. Dec. ¶23a; Faatoafe Dec. ¶19; Maxson Dec. ¶26.

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) - 9
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Case 2:10-cv-02052-TSZ Document 11 Filed 12/23/10 Page 11 of 25

1 bladder drainage or reposition him when needed. Id. ¶¶17-21.

2

Compromising domestic support will also cause injury. Beneficiaries with suppressed

3 immune systems become sick in unsanitary conditions.32 Some will try to clean or cook food

4 and injure themselves.33 Others will be unable to maintain the healthy or special diet they need

5 to avoid exacerbating their medical conditions.34 Some cannot eat safely without assistance, and

6 will risk choking or will go hungry at times without care.35

7

Beneficiaries with family member providers will experience a reduced standard of living

8 from the reduction in family income,36 leading some beneficiaries to go without medical

9 assistance and medications.37 Some will lose caregivers and have difficulty finding new

10 providers.38 For individuals with cognitive and psychiatric disabilities, the harm and fear of

11 losing services may be particularly harsh. Dapper Dec. ¶5. Beneficiaries rely on providers for

12 essential physical care and psychological and emotional support, and the stress of losing services 13 will trigger fear and symptomatic behaviors such as hurting themselves or damaging property.39

14

2. Risk of Institutionalization

15

If the reductions in in-home care services are implemented, class members risk of

16 unnecessary institutionalization. Most class members already have been assessed to need 17 institutional care in the absence of in-home services.40 The magnitude of these hours reductions

18 have substantially increased their risk of institutionalization. LaPlante Dec.¶9, 12, 17, 23; Reed

19 Dec. ¶44; Black Dec. ¶33; Walsh Dec. ¶12; Dapper Dec. ¶17.

20
32 E.g., C.B. Dec. ¶26d.
21 33 E.g., Albott Dec. ¶13; Chatwin Dec. ¶14a; Hays Dec. ¶15b; Ivonav Dec. ¶24.
34 E.g., C.B. Dec. ¶26; Davis Dec. ¶26a; Guin Dec. ¶30.
22 35 E.g., D.W. Dec. ¶13f; S.J. Dec. ¶8e; Braddock Dec. ¶18b; Brown Dec. ¶24a; Dockstader Dec. ¶10b; McIntosh
Dec. ¶9c.
23 36 E.g., Allington Dec. ¶17; A.H. Dec. ¶12; D.V.S. Dec. ¶18; Chatwin Dec. ¶21; Flint Dec. ¶16; Guin Dec. ¶29;
Hays Dec. ¶29; Maxson Dec. ¶22; Paolino Dec. ¶24.
24 37 E.g., Allington Dec. ¶17; Chatwin Dec. ¶23.
38 E.g., C.B. Dec. ¶27-28; Faatoafe Dec. ¶23; Guin Dec. ¶33; Maxson Dec. ¶24; Paolino Dec. ¶13, 24; Partridge
25 Dec. ¶25.
39 E.g., C.B. Dec. ¶11g, 26e; K.S. Dec. ¶13; Davis Dec. ¶16g, 26d; D.W. Dec. ¶22e; N.N.A Dec. ¶6; Albott Dec.
26 ¶13; Brown Dec. ¶22d, 23c, 24b; Chatwin Dec. ¶13, 19, 26; Faatoafe Dec. ¶21; Hays Dec. ¶25-27; Ivonav Dec. ¶12,
25; Maxson Dec. ¶8i-j, 27; McIntosh Dec. ¶9g, 16e; Gardner Dec. ¶¶ 17, 19.
27 40 E.g., CB Dec. ¶16; Allington Dec. ¶8; Brown Dec. ¶7; Chatwin Dec. ¶8; Davis Dec. ¶10; Flint Dec. ¶7; Frederick
Dec. ¶6; Guin Dec. ¶9; Hays Dec. ¶8; Ivanov Dec. ¶8; Maxson Dec. ¶12; Paolino Dec. ¶8.

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) - 10
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1

J.H. wishes to remain in his home, but has already been moved into a nursing home in

2 anticipation of the reduction in hours; his paralysis and inability to breathe on his own require

3 more care than the reduced care hours would provide. D. Hayes Dec. ¶5, 8. S.J.’s provider will

4 no longer be able to care for her with the reduced hours and is arranging for her to move into a

5 nursing home in January. S.J. Dec. ¶25, 31, 33; Braddock Dec. ¶24-31. J.B. is herself disabled

6 physically, cannot get to the bedrooms of her four severely physically and mentally disabled

7 adult children, and is and unable to replace the lost hours of care; a nursing home may be A.B.,

8 M.B., An.B. and J.B.’s only option. Jane B. Dec. ¶22a-d; Partridge Dec. ¶27. Others are likely

9 to move to nursing homes or group residential settings because the reduced hours will not 10 provide for their needs, and their condition is likely to deteriorate.41 Many family member 11 providers forced to seek outside employment will have to place relatives in institutions.42

12

Institutionalization will be detrimental to beneficiaries’ quality of life and care.

13 Placement in an institution can destabilize already compromised mental or physical functioning

14 and it is extremely difficult to move back into the community. Gardner Dec. ¶¶19-20.

15 Institutionalized individuals may be subjected to inadequate care due to chronic understaffing. 16 Schnelle Dec. ¶7. Many Plaintiffs previously experienced poor institutional care.43 These

17 individuals currently live independent lives in their homes and communities, with family, pets, 18 and neighbors, the loss of which would be devastating.44

19
41 E.g., D.W. Dec. ¶22b, 25; C.B. Dec. ¶35; K.S. Dec. ¶17, 21; Albott Dec. ¶13; Braddock Dec. ¶27-29; J.B. Dec.
20 ¶22 at p. 9-10; Davis Dec. ¶32; Dockstader Dec. ¶19; Faatoafe Dec. ¶24; Frederick Dec. ¶22; Hayes Dec. ¶8;
McIntosh Dec. ¶20-21; Morrow Dec. ¶6; Paolino Dec. ¶24; Partridge Dec. ¶27; Starr Dec. ¶¶16, 24, 26.
21 42 Glickman Dec. ¶21; Elliott Dec. ¶6.; see also, e.g., Allington Dec. ¶20; Chatwin Dec. ¶21, 25; Guin Dec. ¶¶29-33;
Hays Dec. ¶29; Maxson Dec. ¶¶25, 31; Paolino Dec. ¶24.
22 43 E.g., C.B. Dec. ¶32 (hygiene needs were not cared for, frequently missed meals and was undermedicated, MRSA
Septicemia spread to her kidneys and brain); K.S. Dec. ¶18 (felt she lost her “independence and dignity”); D.W.
23 Dec. ¶27 (lost 135 pounds and lack of privacy stressful); Allington Dec. ¶15 (became so “upset and disruptive” that
had to be sent home the same day); Flint Dec. ¶20 (not kept clean or attended to in timely manner); Maxson Dec.
24 ¶¶10, 28 (received unskilled care and rate of seizures increased); Albott Dec. ¶13.
44 E.g., Brown Dec. ¶15a-d (would lose relationships with siblings and pets, active church life, swimming, and art
25 hobbies); Hays Dec. ¶20 (would lose family time, church life, participation in an association for developmentally
disabled); A.H. Dec. ¶8 (will miss family and grandson); C.B. Dec. ¶13, 34a-b (living independently allows for
26 relationships with friends, neighbors, and companion animals); D.V.S. Dec. ¶9 (has been hospitalized and
institutionalized before; will lose companion dog and ability to make choices and daily routines); D.W. Dec. ¶15,
27 28a (would lose companion dog); K.S. Dec. ¶17 (living at home is good for mental health); M.J.B. Dec. ¶4; S.J.
Dec. ¶10 (would lose ability to arrange own schedule, social life, and privacy); Frederick Dec. ¶14 (would be unable

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1

E. The Cuts In In-Home Care Services Are Not Cost-Effective

2

While beneficiaries of in-home care services will suffer irreparable harm, the State will

3 enjoy fewer cost savings than its budget anticipates from reduction in service hours. The state

4 will incur millions of dollars in increased institutionalization costs. Reed Dec. ¶¶20, 23;

5 LaPlante Dec. ¶20. Reduced spending will cause a loss of nearly $50 million to the Washington

6 economy, and millions of dollars in tax revenue. Lucia Dec. ¶¶5, 13.

7

V. ARGUMENT

8

A. Plaintiffs Meet the Legal Standard for a Preliminary Injunction.

9

“A plaintiff seeking a preliminary injunction must establish that he is [1] likely to

10 succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

11 preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in

12 the public interest.” Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.

13 2009) (quoting Winter v. Natural Res. Def. Council Inc., 129 U.S. 365, 374 (2008)). Where

14 plaintiffs make a strong showing of irreparable harm and that the injunction is in the public

15 interests, they need not make as great a showing with respect to likelihood of success on the

16 merits, and vice versa. See Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-53 (9th 17 Cir. 2010). Plaintiffs meet this test and class-wide injunctive relief is proper.45

18

B. The Reduction in Personal Care Services Will Cause Irreparable Injury.

19

The reduction or loss of needed medical benefits for low-income disabled or elderly

20 individuals per se constitutes an irreparable injury justifying prospective equitable relief. See

21 Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982) (“needed medical care”); Independent

22 Living Ctr. of S. Cal., Inc. v. Maxwell-Jolley, 572 F.3d 644, 658 (9th Cir. 2009) (hereinafter “ILC

23
to spend time with family or people her age); Guin Dec. ¶23-24 (would lose family life and visits from sister);
24 Braddock Dec. ¶23; Chatwin Dec. ¶19; Davis Dec. ¶32; Dockstader Dec. ¶21; Hayes Dec. ¶14; Maxson Dec. ¶10;
Paolino Dec. ¶19; Partridge Dec. ¶11, 28 (institutionalization will be traumatic for B. siblings who have never been
25 separated from mother or siblings).
45 Although Plaintiffs will be filing a motion for class certification shortly in an abundance of caution, “[d]istrict
26 courts are empowered to grant preliminary injunctions regardless of whether the class has been certified.” Brantley
v. Maxwell-Jolly, 656 F.Supp.2d 1161, 1178 n.14 (N.D. Cal. 2009) (quotation marks omitted); accord V.L. v.
27 Wagner, 669 F.Supp.2d 1106, 1114 n.6 (N.D. Cal. 2009). However, if this Court disagrees, it should certify the
classes for the reasons set forth in Plaintiffs’ Motion for Class Certification.

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1 II”) (“needed medical care”); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (disability

2 benefits); cf. LaForest v. Former Clean Air Holding Co., 376 F.3d 48, 55-56 (2nd Cir. 2004)

3 (retiree health benefits); Beno v. Shalala, 30 F.3d 1057, 1064 & n.10 (9th Cir. 1994).

4

Individuals would suffer irreparable harm from loss of home care services. See, supra;

5 see, also, V.L. v. Wagner, 669 F.Supp.2d 1106, 1121-22 (N.D. Cal. 2009), (deprivation of home

6 care services would cause irreparable injury and risk unnecessary institutionalization). See also

7 Martinez v. Schwarzenegger, 2009 WL 1844989, at *5 (N.D. Cal. Jun. 26, 2009) (reduction in

8 provider wage would lead some providers to leave jobs causing irreparable injuries); cf. also

9 Mayer v. Wing, 922 F.Supp. 902, 905, 909 (S.D.N.Y. 1996) (“reduc[tion] or terminati[on of]

10 home care services”); Crabtree, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008)

11 (“institutionalization will cause Plaintiffs to suffer injury to their mental and physical health,

12 including a shortened life, and even death for some Plaintiffs”); Long v. Benson, 2008 WL

13 4571903, at *2 (N.D. Fla. Oct. 14, 2008) (similar).

14

The injury to providers in the form of reduced wages also establishes irreparable injury to

15 justify a preliminary injunction because of the harm that results and because the loss of income

16 to providers could not be recovered. See Dominguez v. Schwarzenegger, 596 F.3d 1087, 1097-

17 98 (9th Cir. 2010) (Eleventh Amendment immunity); California Pharmacists Ass’n v. Maxwell-

18 Joley, 563 F.3d 847, 850-52 (9th Cir. 2009) (hereinafter “California Pharmacists I”).

19

C. The Balance of Equities and Public Interest Favor Plaintiffs.

20

The risk of illness and injury to low-income individuals deprived of home care services

21 outweighs Defendants’ purely fiscal interest in making the reductions – even at times of budget

22 crisis – particularly when there are no adequate remedies other than an injunction. See

23 Dominguez, 596 F.3d at 1098 (enjoining CA home-care cuts: “individuals’ interests in sufficient

24 access to health care trump the State’s interest in balancing its budget”); Independent Living Ctr.

25 II, 572 F.3d at 659 (“A budget crisis does not excuse ongoing violations of federal law”;

26 California Pharmacists I, 563 F.3d at 852-53; see also V.L., 669 F.Supp.2d at 1122. Washington

27 State’s immediate budgetary needs do not trump the harms that will befall Plaintiffs if the

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1 reductions in service take effect on January 1, 2011.

2

An injunction to safeguard essential Medicaid benefits serves the public interest. See

3 California Pharmacists Ass’n v. Maxwell-Jolley, 596 F.3d 1098, 1114-15 (9th Cir. 2010)

4 (hereinafter “California Pharmacists II”) (health care supports preserved despite state fiscal

5 crisis); Dominguez, 596 F.3d at 1098 (public interest favors injunction of cuts to home care

6 payments). In a case involving home care cuts, “the public interest weighs heavily in favor of

7 granting relief. ‘It would be tragic, not only from the standpoint of the individuals involved but

8 also from the standpoint of society, were poor, elderly, disabled people to be wrongfully

9 deprived of essential benefits for any period of time.’” V.L., 669 F.Supp.2d at 1122, quoting

10 Lopez, 713 F.2d at 1437. The equities weigh in favor of a TRO and preliminary injunction.

11

D. Plaintiffs Are Likely to Succeed on the Merits of their Claims.

12

1. The Personal Care Services Reduction Violates the Medicaid Act’s Reasonable Standards, Sufficiency, Comparability, Free Choice, and

13

Amendment Requirements.

14

Medicaid is a cooperative federal-state program that allows states to receive federal

15 financial assistance for medical assistance to low-income individuals. 42 U.S.C. § 1396 et seq.

16 Participation is voluntary, but when a state chooses to participate, it must comply with the

17 Medicaid Act and its implementing regulations. 42 U.S.C. § 1396; Alexander v. Choate, 469

18 U.S. 287, 289 n.1 (1985); see also Lankford v. Sherman, 451 F.3d 496, 510 (8th Cir. 2006).46

a. Reduction of Services Below Assessed Need, by an Arbitrary,

19

Budget-Driven Number, Violates Medicaid’s Reasonable

Standards Requirement.

20

The Medicaid Act requires that all participating states employ “reasonable standards …

21 for determining … the extent of medical assistance under the plan which … are consistent with

22 the objectives of this subchapter.” 42 U.S.C. § 1396a(a)(17); see also Wisconsin Dep't of Health

23 & Fam. Serv. v. Blumer, 534 U.S. 473, 479 (2002); Schweiker v. Gray Panthers, 453 U.S. 34,

24

25
46 As set forth in the Complaint, many of plaintiffs’ Medicaid claims are brought pursuant to 42 U.S.C. § 1983. As
26 the Ninth Circuit held in Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d 1050 (9th Cir.
2008), cert. denied sub nom. Maxwell-Jolly v. Independent Living Center of S. California, 129 S.Ct. 2828 (2009)
27 (hereinafter “Independent Living Center I”), all of the Medicaid provisions at issue are also enforceable directly
under the Supremacy Clause.

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1 36-37 (1981).47 The primary objectives of the Medicaid program are to provide medical

2 assistance to individuals whose income and resources are insufficient to meet the costs of

3 necessary medical services and to furnish “rehabilitation and other services to help such …

4 individuals attain and retain capability for independence or self care.” 42 U.S.C. § 1396-1.

5

When state Medicaid rules deny coverage of services on an arbitrary or irrational basis,

6 courts have enjoined or invalidated them as contrary to the reasonable standards requirement.

7 See Lankford v. Sherman, 451 F.3d 496, 511-13 (8th Cir. 2006) (optional medical equipment

8 benefit); Weaver v. Reagan, 886 F.2d 194, 196-200 (8th Cir. 1989) (AZT coverage based on

9 FDA approved uses); Allen v. Mansour, 681 F.Supp. 1232, 1233-34, 1238 (E.D. Mich. 1986)

10 (state medical necessity criteria arbitrary when unsupported by expert opinion or scientific data);

11 see also Hern v. Beye, 57 F.3d 906, 910-11 (10th Cir. 1995); Preterm, Inc., v. Dukakis, 591 F.2d

12 121, 131 (1st Cir. 1979); White v. Beal, 555 F.2d at 1150-51 & n.3.

13

Courts enjoined similar budget-driven cuts as a violation of reasonable standards.

14 Reduction of Medicaid home care services based on beneficiaries’ numerical scores, that “were

15 not designed as a measure of eligibility or need for [home care] services “cannot reasonably be

16 used for this purpose.” V.L., 669 F.Supp.2d at 1117. Modification of qualifying impairments for

17 adult day services, without explanation of “how these changes are linked to the individual’s

18 circumstances, particular need for ADHC services or their risk of institutionalization” are not

19 permitted. Cota v. Maxwell-Jolly, 688 F.Supp.2d 980, 992 (N.D. Cal. 2010).

20

Here, Washington’s budget-based reduction of home care hours violates the reasonable

21 standards mandate. The hours reduction is based on budgetary objectives. That undercuts the

22 integrity of the CARE system’s scientific, individualized assessments, care plans and hours

23 authorization that are minimally adequate to meet the essential needs of home care recipients.

24 See supra. Defendants are seeking to reduce beneficiaries’ hours below assessed need, without

25

26 47 This requirement applies to waiver programs as well as those under a state plan. As the federal Centers for
Medicare and Medicaid Services (“CMS”) has recognized in a related context, “[o]nce in [a 1915(c)] waiver, an
27 enrolled individual enjoys protection against arbitrary acts or inappropriate restrictions . . . .”. Brenneke Dec., Ex.
14 (CMS Olmsted Update).

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1 change of their circumstances, and without any reassessment. The resulting hours allocations

2 will be “arbitrary,” and without “any logic or reasoning.” Reed Dec. ¶42; see also Black Dec.

3 ¶¶30-31 (guarantee gap between need and services); Dapper Dec. ¶13 (separate hours

4 authorization from needs assessment). This reduction employs an unreasonable standard to

5 determine the extent of medical assistance in violation of § 1396a(a)(17).

6

b. The Reduction in Personal Care Service Hours Below Levels Adequate to Accomplish the Purpose of the Program Violates

7

the Sufficiency Requirement.

8

Medicaid’s “sufficiency” requirement mandates that “[e]ach service must be sufficient in

9 amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b). When

10 a state has committed to provide a Medicaid service, the sufficiency requirement ensures that it

11 adequately fulfills that obligation. To determine whether the service is sufficient, courts consider

12 whether the level of service achieves the specific program’s purposes. Curtis v. Taylor, 625 F.2d

13 645, 651 (5th Cir. 1980). Where it does not, it is invalid. Mitchell v. Johnson, 701 F.2d 337,

14 347-51 (5th Cir. 1983) (reduction of services and annual dental checkups to every three years;

15 Lankford, 451 F.3d at 511-13 (equipment, but not other equipment necessary to assist in 16 breathing); see also Weaver v. Reagen, 886 F.2d 194, 197-200 (8th Cir. 1989) (failure to cover 17 AZT prescription); Charpentier v. Belshe, 1994 WL 792591, at *5 (E.D. Cal. Dec. 21, 1994)

18 (limiting reimbursement to no more than 20% of Medicare’s reasonable charge).

19

Here, the reduced in-home hours will no longer be sufficient to fulfill the purpose of the

20 State’s in-home personal care services programs to enable individuals to remain safely in their 21 homes, rather than be forced into less integrated settings. See, e.g., RCW 74.39.005(3), (4).48

22 48 See also, RCW 74.39A.007 (expressing legislative intent that “[l]ong-term care services administered by the
department of social and health services include a balanced array of health, social, and supportive services that
23 promote individual choice, dignity, and the highest practicable level of independence”); id., 74.39.005(2) (purpose
to “[e]nsure that functional ability shall be the determining factor in defining long-term care service needs and that
24 these needs will be determined by a uniform system for comprehensively assessing functional disability”). As CMS
has recognized, the purpose of a 1915(c) waiver is “to serve as a community alternative to institutionalization and
25 ensure the health and welfare of the individuals who enroll.” Brenneke Dec., Ex. 14 (CMS Olmstead Update No. 4);
Brenneke Dec., Ex. 7 (Washington HBCS Waiver Application). “The goal of this waiver is to support participants
26 in their own homes or in residential facilities rather than in a nursing facility or other more restrictive settings. The
objective of the waiver is to develop and implement supports and services to successfully maintain individuals in
27 their homes and communities.”); 42 U.S.C. §1396 (purposes of Medicaid program include providing rehabilitation
and other services to help individuals attain and retain capability for independence and self care).

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1

The CARE Tool authorizes the hours that individuals need in order to fulfill the purposes

2 of that program and remain safely at home. See supra. Reduction of hours to “well below” the

3 “minimum number of hours identified by the CARE tool as essential to maintain a safe living

4 situation . . . will mean that the Washington in-home personal care services program will no

5 longer fulfill the fundamental purpose of home and community-based care, because the

6 authorized hours will not be sufficient to permit consumers to remain safely in their homes.”

7 Reed Dec. ¶¶44-45; see also Black Dec. ¶32 (reduction will “undercut[] the very purpose of the

8 system”). The sufficiency claims are likely to succeed: “The services currently provided through

9 [California’s home care program] have already been determined by social workers to be

10 necessary to permit elderly and disabled individuals to remain safely in their homes. Thus, the

11 elimination of these services will likely leave affected individuals without a level of service

12 sufficient to achieve the purpose of the program.” V.L., 669 F.Supp.2d at 1118.

13

c. An Across-the-Board Reduction in Services without Individual Need Redeterminations Violates the Comparability

14

Requirement of the Medicaid Act.

15

The “comparability” provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(10)(B),

16 mandates “comparable services when individuals have comparable needs,” and it is violated

17 “when some recipients are treated differently from other recipients where each has the same level

18 of need.” Jenkins v. Washington State DSHS, 157 P.3d 388, 392 (Wash. 2007); see also

19 Hodgson v. Bd. of Comm’rs, Hennepin, 614 F.2d 601, 608 (8th Cir. 1980); 42 C.F.R. § 440.240.

20

In Jenkins, the State imposed an across-the-board reduction upon the hours of in-home

21 care beneficiaries whose caregivers lived with them. 157 P.3d at 392. This violated the

22 comparability requirement because it “reduce[d] a recipient’s benefits based on a consideration

23 other than the recipient’s actual need.” Id. at 401; see also White v. Beal, 555 F.2d 1146, 1148-

24 49 (3d Cir. 1977) (eyeglasses for disease but not refractive error); Conlan v. Bonta, 102

25 Cal.App.4th 745, 753-54 (2002) (some beneficiaries incurring unreimbursed expenses); Jeneski

26 v. Myers, 163 Cal.App.3d 18, 33-34 (1984) (restrictions of drugs palliative for some but

27 medically necessary for others).

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1

Courts have enjoined benefit reductions based on factors other than individual needs to

2 avoid comparability violations . See V.L., 669 F.Supp.2d at 1115 (personal care services); see

3 also Cota, 688 F.Supp.2d at 993 (adult day services). Here, there is no dispute that the reduction

4 is based on a budgetary figure, not an individualized assessment of needs. Jenkins is directly on

5 point, and the reduction violates the comparability requirement.

6

d. The Reduction in Personal Care Services Will Effectively Eliminate Or Render Inadequate Home-Based Services for

7

Most Individuals, in Violation of Medicaid’s Free Choice Requirement.

8

DSHS provides personal care services through COPES and other Medicaid programs

9 pursuant to waivers under Section 1915(c) and/or Section 1915(d), 42 U.S.C. §1396n. These

10 waivers are conditioned upon DSHS assurances that individuals likely to require the level of care

11 provided in a hospital, nursing facility, or other specified institution “are informed of the feasible

12 alternatives” to institutional care and have individual choice. 42 U.S.C. §§1396n(c)(2)(C);

13 1396n(d)(2)(C); see also 42 U.S.C. §§1396n(c)(1); 1396n(d)(2)(A). Regulations require “the

14 recipient or his or her legal representative will be—(1) Informed of any feasible alternatives

15 available under the waiver; and (2) Given the choice of either institutional or home and

16 community based services.” 42 C.F.R. §441.302(d); see also 42 C.F.R. §§441.353(d), 303(d).

17

These “free choice” requirements are “constructed in such a way as to stress . . . two

18 explicitly identified rights - (a) the right to be informed of alternatives to traditional, long-term

19 institutional care, and (b) the right to choose among those alternatives.” Ball v. Rogers, 492 F.3d

20 1094, 1107 (9th Cir. 2007). They “mandat[e] that participating states keep each eligible

21 Medicaid client apprised of these non-institutional care options and afford each the opportunity

22 to choose how to live.” Id. at 1111 (emphasis omitted). “[R]ecipients must not be forced to

23 choose between adequate health care and institutionalization.” Ball v. Biedess, Ball v. Biedess,

24 2004 WL 2566262, at *6-7; (D. Ariz. Aug. 13, 2004).49

25
49 Under the free choice mandate, “the feasibility of alternatives should not be determined by budgetary constraints.
26 Feasibility must be determined by the recipient’s needs and treatment plan, and not solely by the funds available to
service that plan.” Benjamin H, 1999 WL 34783552, *14. Indeed, federal “legislators were adamant that ‘the
27 determination of which long-term care options are feasible in a particular instance should be based on an
individual’s needs, as determined by an evaluation, and not short-term costs savings.’” Ball, 492 F.3d at 1114.

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1

Defendants’ planned implementation of hours reductions violates this free choice

2 mandate in two ways. First, home-based services that are inadequate to meet recipients’ needs,

3 as they will be here, do not constitute a “feasible alternative” to institutionalization, and so

4 violate the free choice provisions. See Ball, 492 F.3d at 1100 (low wages caused provider

5 shortage, decreased quality of care, state failed to avoid service gaps); Ball v. Rodgers, 2009 WL

6 1395423, at *6 (D. Ariz. Apr. 24, 2009) (requiring specific steps to prevent gaps in service so

7 recipients would have “an actual choice between in-home and institutional care”); Cramer v.

8 Chiles, 33 F. Supp.2d 1342 (S.D. Fla. 1999) (“no real choice” when beneficiary must choose

9 between home-based option that may not meet or uncertain placement in institution).

10

Second, Defendants reduced Plaintiffs’ hours authorizations, and effectively eliminated

11 the viability of home-based care for many, but failed to inform beneficiaries of other community-

12 based long term care alternatives available under the waiver or the option to obtain the necessary

13 care in an institutional setting without gaps in service. Defendants must inform recipients of

14 their options before making such a change to afford them a meaningful and free choice.

15

e. The Reduction in Personal Care Services Without Obtaining Federal Approval of Plan and Waiver Amendments Violates

16

the Medicaid Act.

17

When a State makes material changes in its operation of the Medicaid program, it must

18 submit a plan amendment to CMS for determination as to whether the amendment complies with

19 federal requirements, and may not implement that plan amendment until CMS approves it. 42

20 CFR §§ 430.12, 430.20, 447.256. Similar obligations apply as conditions of Medicaid waiver

21 programs. Brenneke Dec., Exs. 7-13 (Medicaid waiver applications, at Section 8).

22 Implementation of a plan amendment without CMS approval is unlawful, and should be

23 enjoined. See Oregon Ass’n of Homes for the Aging, Inc. v. Oregon, 5 F.3d 1239, 1241, 1244

24 (9th Cir. 1993); Exeter Memorial Hosp. Ass’n v. Belshe, 145 F.3d 1106, 1108-09 (9th Cir. 1998);

25 California Ass’n of Rural Health Clinics v. Maxwell-Jolly, __ F.Supp.2d __, 2010 WL 4069467,

26 at *12-14 (Oct. 18, 2010). So should implementation of unapproved waiver amendments.

27

The allocation of home care hours to each recipient is not discretionary. Rather, in the

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1 State Plan and each home care waiver program, Defendants certify that Washington uses the

2 CARE tool to develop an individualized care plan, which includes the determination of the 3 number of personal care hours needed and do not reference state budget issues.50 By introducing

4 budget cuts as a basis for determining home care hours, as opposed to the individualized CARE

5 assessments, the State has made a significant change not reflected in the State Plan or waivers.

6 Defendants’ reduction of in home services to levels below assessed need also materially modify

7 the State Plan and waiver provisions that require home care hours to be based solely on 8 assessments of need.51

9

Defendants have not submitted to CMS any plan or waiver amendments regarding these

10 changes in DSHS’s processes for determining each recipient’s home care hours, or awaited CMS

11 approval before implementing them. This violates the requirement that the State and refrain

12 from implementing such changes before CMS approval.

13

2. The Reduction in Personal Care Hours Risks Unjustified Institutionalization in Violation of Title II of the ADA and Section 504

14

of the Rehabilitation Act.

15

Defendant’s actions violate the Americans with Disabilities Act (“ADA”) and Section

16 504 of the Rehabilitation Act (“Section 504”) which prohibit discrimination on the basis of

17 disability and unjustified institutionalization. Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176,

18 114 L.Ed.2d 540 (1999); Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003). See also, 42

19 U.S.C. § 12132; 29 U.S.C. § 794(a); 28 CFR § 35.130(b)(7)(“reasonable accommodation”

20 mandate) and 28 CFR § 35.130(d)(the integration mandate). In enacting the ADA in 1990,

21 50 See Brenneke Dec., Exs. 6 (State Plan, at 11), Exs. 7-13 (Waiver plans at Appx. D(d)); Ex. 7 (COPES Waiver,
Appx. I) (“CARE . . . assigns base hours”); Ex. 8 (MNIH Waiver, Appx. I) (same); Exs. 9-11 (Core Waiver, Basic
22 Waiver, and Basic Plus Waiver, at Appx. C-3) (“maximum hours of personal care received are determined by the
approved department assessment”). The functions, elements and scoring mechanisms of the CARE tool are
23 provided for with specificity, WAC 388-106-6125, 388-106-0130, 388-106-0135, 388-106-0140, 388-440-0001, and
do not permit Defendants to change a beneficiary’s home care hours for purely budgetary reasons.
24 51 E.g., Brenneke Dec., Ex. 6 (State Plan), at 11 (providing that DSHS will establish and follow “individualized plan
of care” for personal care services that is based on “independent assessment . . . developed by a person-centered
25 process in consultation with the individual” and “other appropriate individuals,” and that this plan of care
“[i]dentifies the State plan HCBS necessary for the individual, and furnishes . . . all HCBS which the individual
26 needs”); see also id., Ex. 7 (COPES Waiver, Appx. D(d)-(e)) (describing how individual care plan, including home
care hours, is determined by needs assessment); Ex. 8 (MNIH Waiver, Appx. D(d)-(e)) (same); Exs. 9-13 (Basic
27 Waiver, Basic Plus Waiver, Community Protection Waiver, Core Waiver, and New Freedom Waiver, at Appx. D(d))
(same).

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1 “Congress declared that ‘segregation’ of persons with disabilities is a ‘for[m] of discrimination’

2 and that such discrimination persists in the area of ‘institutionalization.’” Townsend v. Quasim,

3 328 F.3d 511, 516; 42 U.S.C. § 12101(a).

4

Title II of the ADA provides that “no qualified individual with a disability shall, by

5 reason of such disability, be excluded from participation in or be denied the benefits of the

6 services, programs, or activities of a public entity, or be subjected to discrimination by any such

7 entity.” 42 U.S.C. § 12132. See Weinreich v. Los Angeles County Metro. Transp. Auth., 114

8 F.3d 976, 978 (9th Cir. 1997). Here, Plaintiffs are qualified individuals with disabilities who live

9 independently in their own homes with the Medicaid personal care assistance awarded based on

10 individualized CARE assessments of their unmet needs. The reductions violate the ADA’s

11 integration mandate by requiring people who live at home to make do with less than they need or

12 move out of their homes to get full LTC services less integrated settings.

13

ADA regulations require provision of services in the most integrated setting possible52:

14 “A public entity shall administer services, programs, and activities in the most integrated setting

15 appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. § 35.130(d).

16

In Olmstead, the Court applied these integration and anti-isolation principles, holding that

17 the ADA prohibits “[u]njustified isolation of the disabled.” Olmstead, 527 U.S. at 597. The

18 Court reasoned that unnecessary institutional placement “perpetuates unwarranted assumptions

19 that persons so isolated are incapable or unworthy of participating in community life,” and

20 “severely diminishes the everyday life activities of individuals, including family relations, social

21 contacts, work options, economic independence, educational advancement, and cultural

22 enrichment.” Id. at 600-01 (citations omitted). To establish an Olmstead claim, a plaintiff must

23 show (1) the state’s treatment professionals have determined that community-based services are

24 appropriate, (2) the disabled individual does not oppose such community-based treatment, and

25
52 “The ‘most integrated setting’ is defined as ‘a setting that enables individuals with disabilities to interact with
26 non-disabled persons to the fullest extent possible.’” Brantley v. Maxwell-Jolly, 2009 WL 2941519, at *6 (N.D.Cal.
Sept. 10, 2009) (citing 28 C.F.R. pt. 35 app. A; Olmstead, 527 U.S. at 592). This mandate “serves one of the
27 principal purposes of Title II of the ADA: ending the isolation and segregation of disabled persons.” Arc of Wash.
State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005); see also Brantley, 2009 WL 2941519 at *6.

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1 (3) the provision of community-based services can be reasonably accommodated, taking into 2 account the resources available to the state and the needs of other individuals with disabilities.53

3 527 U.S. at 587. Plaintiffs meet these standards and want to stay home.

4

Plaintiffs who already reside at home or in community settings are entitled to ADA

5 integration mandate protection to prevent state actions that give rise to a risk of unnecessary

6 institutionalization. See Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181-82 (10th

7 Cir.2003) (imposition of cap on prescription medications risked premature entry to nursing

8 homes); Ball v. Rodgers, 2009 WL 1395423 at *5 (D. Ariz. Apr. 24, 2009) (failure to provide

9 needed services threatened institutionalization); Mental Disability Law Clinic v. Hogan, 2008

10 WL 4104460 at * 15 (E.D.N.Y. Aug.28, 2008) (“[E]ven the risk of unjustified segregation may

11 be sufficient under Olmstead” ); M.A.C. v. Betit, 284 F.Supp.2d 1298, 1309 (D. Utah 2003) (risk

12 of institutionalization); Makin ex rel. Russell v. Hawaii, 114 F.Supp.2d 1017 (D. Haw. 1999).

13 V.L, 669 F.Supp.2d at 1119-20; (reductions and terminations of home care services placed

14 Medicaid beneficiaries at serious risk of institutionalization) see also Cota, 688 F.Supp.2d at

15 994-95; Crabtree, 2008 WL 5330506, at *25 (M.D. Tenn. Dec. 19, 2008) (enjoining state from

16 reducing home health care services). Plaintiffs have demonstrated the same serious threat here

17 and shown a likely ADA violation.

18

E. Defendants have violated the Plaintiffs’ Procedural Due Process Rights.

19

The Due Process Clause of the Fourteenth Amendment prohibits states from denying,

20 reducing or terminating Medicaid services without providing meaningful notice prior to

21 termination or reduction of Medicaid benefits, continued benefits pending a pre-termination

22 hearing, and a fair and impartial pre-termination hearing. Goldberg v. Kelly, 397 U.S. 254, 267-

23 68, 90 S.Ct. at 1020. Specifically, the recipient must have “timely and adequate notice detailing

24 the reasons for a proposed termination…” id. See, also, Mathews v. Eldridge, 424 U.S. at 334-

25

26 53 The Ninth Circuit has also analyzed the integration mandate claim under the more general test applicable to ADA
claims brought under Title II. See Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) (citing Duvall v. County of
27 Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)); Brantley, 2009 WL 2941519 at *7. Plaintiffs prevail under either
formulation.

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1 335 (extent of due process); Perry v. Chen, 985 F.Supp. 1197, 1202 (D. Ariz. 1996)54.

2

The regulations implementing the Medicaid Act prescribe procedures for notice and an

3 opportunity for a fair hearing prior to reduction of services. See 42 C.F.R. § 431.200, 201; 42

4 C.F.R. § 431.211 (elements of “notice”). Medicaid beneficiaries have a right to continued

5 benefits until they are found ineligible. 42 C.F.R. §435.930(b), §431.230(a). Notice must be 6 adequate and complete.55 42 C.F.R. § 431.211.

7

Here, DSHS’s client notice simply lists the current hours, hours effective January 1,

8 2011, and the difference. It maintains “[t]here are no appeal rights for this change through the

9 Office of Administrative Hearings because this is a service change directed by the governor and

10 applies to the entire program.” Brenneke Dec Ex. 1A. 42 C.F.R. § 431.220(b) provides an

11 “agency need not grant a hearing if the sole issue is a Federal or State law requiring an automatic

12 change adversely affecting some or all recipients.” That provision does not apply; however,

13 because DSHS had discretion over how to implement the Governor’s directive, the budget cuts

14 to the Department, and cuts to the personal care program, and the due process violations arise 15 from those decisions.56 Timely, advance and adequate notice is required even when assistance is

16
54 Notice is required to protect claimants against proposed agency action “resting on incorrect or misleading factual
17 premises or on misapplication of rules to policies of the facts of particular cases.” Goldberg v. Kelly, 397 U.S. at
268, 90 S.Ct. at 1020. Where the recipient has a “brutal need” for the benefit at issue, courts have required agencies
18 go to greater length, incurring higher costs and accepting inconveniences, to reduce the risk of error. See Baker v.
State, 191 P.3d 1005, 1010 (Alaska 2008). Due process requires that beneficiaries be provided a meaningful
19 opportunity to understand, review, and challenge the state agency’s action. Id. at 1011.
55 Notice is defined as “a written statement that meets the requirements of § 431.210.” Id. Section 431.210 requires:
20 (a) a statement of what action the State intends to take; (b) the reasons for the intended action; (c) the specific
regulation or law that supports the change; (d) an explanation of the right to a hearing; (e) an explanation of the
21 circumstances under which Medicaid is continued pending hearing. The State must mail a notice at least ten days
before the date of the action. 42 C.F.R. § 431.211. The agency must grant an opportunity to be heard to a recipient
22 who requests it because he or she believes the agency has taken an action erroneously. 42 C.F.R. § 431.220(a)(2).
When the recipient requests a hearing, the agency may not terminate or reduce services until a decision is rendered
23 after the hearing unless the agency “promptly informs the recipient in writing that services are to be terminated or
reduced pending the hearing decision.” 42 C.F.R. § 431.232 (emphasis added). Finally, the hearing must cover
24 “[a]gency decisions regarding the type or amount of services.” 42 C.F.R. § 431.241 (emphasis added).
56 When implementation of a law entails interpretation or discretion by the state agency, the Medicaid state agency
25 must follow all notice requirements and recipients have a right to challenge the agency’s action in a fair hearing.
Claus v. Smith, 519 F. Supp. 829, 833 (N.D. Ind. 1981). Due process requires a pre-termination fair hearing when
26 recipients “have challenged proposed terminations as resting on incorrect or misleading factual premises or on
misapplication of rules or policies to the facts of particular cases.” Goldberg v. Kelly, 397 U.S. at 264. In this case,
27 DSHS misapplied its rules or policies by summarily reducing benefits below needs, as defined in individual care
assessments, failing to follow federal and state law requiring continued services unless and until the Plaintiffs were

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1 terminated by law to a class of persons. Elder v. Beal, 609 F.2d 695, 696 (3rd Cir. 1979).57

2

For a notice to be legally “adequate” it cannot be inaccurate or misleading on its face.

3 DSHS’s notice to Plaintiffs is just that. It fails to inform Plaintiffs of individual reasons for

4 reductions of benefits or provide for individual assessments, fails to explain alternative Medicaid

5 services availability, says “there are no appeal rights,” and provides no rights to continued

6 benefits pending appeal, all of which are required. 42 C.F.R. § 431.210.

7

Nothing in federal or state law permits Defendant to deprive Plaintiffs of their due

8 process rights to challenge the reduction of their Medicaid in-home personal care services.

9 Recipients’ also qualify for, and have an ongoing entitlement to, Medicaid nursing facility

10 services or service in ICF/MRs, which they waived in reliance on the CARE/ISP plans’

11 authorization of in-home personal care assistance. See, supra; see, e.g, Brenneke Dec., Ex. 16.

12 Nursing facility services are mandatory under the Medicaid Act. 42 U.S.C. § 1396d(a)(4)(A).

13 The right to ongoing and seamless long term care service benefits continue unless an

14 individualized reassessment determines Plaintiffs are no longer eligible.

15

VI. CONCLUSION

16

For all the foregoing reasons, Plaintiffs request that this Court issue a temporary

17 restraining order and order to show cause why a preliminary injunction should not issue,

18 enjoining Defendants from implementing the ten percent reduction in in-home personal care

19 service hours set to take effect on January 1, 2011.

20

DATED this 23rd day of December, 2010.

21

MacDONALD HOAGUE & BAYLESS

ALTSHULER BERZON

22

By: _/s/ Andrea Brenneke_____________

By: _/s/ Stacy Leyton_______________

23

Andrea Brenneke, WSBA # 22027

Stacey Leyton, CABA #203827

24

Attorneys for Plaintiffs

pro hac vice Attorneys for Plaintiffs

25 reassessed and found ineligible. These are not required or automatic changes, and the exception to the fair hearing
rule does not apply.
26 57 Procedural protections are required even when a state terminates an optional Medicaid program for expressly
lawful reasons. Cramer v. Chiles, 33 F.Supp.2d 1342, 1352 (S.D.Fla. 1999). Cramer involved converting
27 participants from one kind of Medicaid program into another. In that case, the court found there was a required
statutory basis for pre-termination notice and opportunity for hearing. Id. at 1352; 42 U.S.C. § 1396a(a)(3).

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 1

THE HONORABLE THOMAS S. ZILLY

2

3

4

5

6

7 8 9
M.R. et al.,
10 11

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Plaintiffs,

No. C10-2052Z

12 vs.
13 SUSAN DREYFUS, et al.,
14
Defendants.
15

ORDER

16

THIS MATTER comes before the Court on plaintiffs’ motion for a preliminary

17
injunction (docket no. 95). This action arises out of the State of Washington’s
18
decision to reduce Medicaid spending in 2011 in response to the current budget crisis.
19

20 The individual named plaintiffs are disabled and elderly individuals who currently

21 receive in-home personal care services1 through Washington’s Medicaid program,

22

23
1 This case does not involve issues relating to the provision of medical care, i.e., care 24 furnished by licensed medical practitioners; rather this case relates solely to in-home personal
care services, which consist of non-medical assistance with activities of daily living, such as 25 bathing, hygiene, and eating, and instrumental activities of daily living, such as shopping and
26 meal preparation.

ORDER - 1

1 which is administrated by defendants Susan Dreyfus2 and the Department of Social 2 and Health Services (“DSHS”). Plaintiffs3 seek to enjoin DSHS from implementing
3
an across-the-board reduction in the number of personal care service hours
4
5 beneficiaries currently receive in their own homes in lieu of treatment in an institution
6 or nursing facility.4

7

Plaintiffs’ lawsuit is predicated on a fundamental misunderstanding of the

8
manner in which personal care service hours are distributed under Washington’s
9
Comprehensive Assessment and Reporting Evaluation (“CARE”) method. Plaintiffs
10

11 attempt in various ways to characterize the hours allotted under CARE as a minimum,

12 below which individuals cannot safely reside in their homes. CARE, however,

13
2 Defendant Dreyfus is the Secretary of the Washington State Department of Social and 14 Health Services. Dreyfus Decl. at ¶ 2 (docket no. 124).
15 3 The plaintiffs in this case consist of fourteen individuals, two nonprofit associations ,and a 16 union that represents personal care service providers. Whether the organizational plaintiffs
have standing to bring the claims alleged in the amended complaint remains unclear. See RX 17 Pharmacies Plus, Inc. v. Weil, 883 F. Supp. 549, 553 (D. Colo. 1995) (holding that medical
providers only have standing under Medicaid provisions relating to reimbursement rates or 18 payment procedures). Moreover, the United States Supreme Court has granted certiorari on
the question of whether medical providers may maintain a cause of action to enforce 19 Medicaid’s reimbursement rate provision, 42 U.S.C. § 1396a(a)(30)(A). Independent Living
Ctr. of S. Cal., Inc. v. Maxwell-Jolley, 590 F.3d 725 (9th Cir. 2009) cert. granted 78 U.S.L.W. 20 3500 (U.S. Jan. 18, 2011) (09-958). This Court will address the standing issue once the 21 parties have fully briefed defendants’ pending motion to dismiss the plaintiff union for lack of
standing, (docket no. 135).
22
4 The pending motion is not the plaintiffs’ first request for injunctive relief. This case was 23 filed on December 21, 2010, and the issues currently before the Court were the subject of a
motion for a temporary restraining order (“TRO”). The Court denied the plaintiffs’ request 24 for a TRO, for the reasons set forth in its Order, on January 5, 2011. In the short time this
lawsuit has been pending, the Court has become well acquainted with the parties and the 25 issues raised by the case. The parties have filed more than 164 separate docket entries, and 26 the Court has carefully reviewed all of the pleadings and heard over five hours of oral
argument on two occasions concerning the issues now ripe for adjudication.

ORDER - 2

1 allocates hours in accordance with beneficiaries’ relative needs and State budget

2
constraints, and not on the basis of what an individual actually needs to remain in a
3
non-institutional setting.
4

5

Since the denial of their motion for a temporary restraining order, plaintiffs

6 have had additional time and opportunities to further brief the issues, supplement the

7 record,5 and present their arguments. Plaintiffs, however, have not improved their
8
showing of either likelihood of success on the merits or irreparable injury, and the
9
balancing of equities and public interest tips sharply in favor of the State. The Court
10
11 therefore DENIES plaintiffs’ motion and the “extraordinary” interlocutory remedy

12 they desire. See Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008)

13 (observing that a preliminary injunction is “an extraordinary remedy never awarded as

14
of right”).
15
BACKGROUND
16

17

Under the Medicaid Act, also known as Title XIX of the Social Security Act,

18 42 U.S.C. §§ 1396a-1396w, the federal government provides monetary assistance to

19 participating States so that they may furnish medical care and other services to
20

21 5 After completion of oral argument on January 28, 2011, the Court advised the parties that
22 the motion for preliminary injunction was deemed submitted and directed the parties not to file any additional motions or documents, except for relevant supplemental authorities, until
23 after the Court could review the enormous quantity of material submitted and render a
decision. Minute Entry (docket no. 164). Nonetheless, plaintiffs filed an offer of proof 24 requesting leave to amend their complaint to add certain individuals as plaintiffs. Offer of
Proof (docket no. 165). The material submitted by plaintiffs in connection with this request 25 are not timely for purposes of the Court’s consideration of the present motion, and have not
26 been considered, except as noted later in this Order. Likewise, the State’s Opposition and the Engels Declaration filed today, docket nos. 169 and 170, are untimely.

ORDER - 3

1 qualified individuals. If a State elects to participate in Medicaid – which all fifty do –
2
it must operate its program in conformity with applicable federal laws. Alexander v.
3
Choate, 469 U.S. 287, 289 n.1 (1985). The federal government administers Medicaid
4
5 through the Centers for Medicare and Medicaid Services (“CMS”). 42 C.F.R.

6 § 400.200. Washington’s Medicaid program is managed by DSHS. RCW 74.04.050.

7

Under the Medicaid program, each participating State must submit, and have

8
approved by CMS, a state plan for the provision of “medical assistance.” See
9
42 C.F.R. § 430.10. Only some categories of “medical assistance,” such as inpatient
10

11 and outpatient hospital care, are mandatory for participating States, while others, such

12 as in-home “personal care services,” are optional. See 42 U.S.C. §§ 1396d(a) &

13 1396a(a)(10)(A). Washington has elected to provide “personal care services,” which

14
are defined by the Medicaid Act as services that are

15

furnished to an individual who is not an inpatient or resident of a

16

hospital, nursing facility, intermediate care facility for the mentally

17

retarded, or institution for mental disease that are (A) authorized for the

individual by a physician or in accordance with a plan of treatment or

18

(at the option of the State) otherwise authorized for the individual in

accordance with a service plan approved by the State, (B) provided by an

19

individual who is qualified to provide such services and who is not a

20

member of the individual’s family, and (C) furnished in a home or other

location.

21
42 U.S.C. § 1396d(a)(24). DSHS has further divided personal care services into two
22

types of activities for which beneficiaries might require physical or verbal assistance,
23

24 namely activities of daily living (“ADLs”) and instrumental activities of daily living

25 (“IADLs”). WAC 388-106-0010. ADLs include basic personal tasks like bathing,
26

ORDER - 4

1 dressing, eating, and toilet use, while IADLs consist of functions performed around the
2
home or community, for example, shopping, meal preparation, and housekeeping. Id.
3
In administering Washington’s long-term personal care services program,
4
5 DSHS uses a system known as CARE. WAC 388-106-0065. CARE begins with an

6 individualized assessment that assesses each beneficiary’s functional capacity using

7 five criteria, namely (i) cognitive performance score; (ii) clinical complexity;
8
(iii) mood/behavior and behavior point score; (iv) ADL score; and (v) exceptional
9
care. WAC 388-106-0125. Based on the results of these examinations, the beneficiary
10
11 is placed into one of five acuity classification groups (A-E). Id. For example, if an

12 individual meets the criteria for clinical complexity, and has a cognitive performance

13 score less than four, the individual is placed into Group “C,” regardless of the
14
individual’s mood and behavior qualification or behavior points. WAC 388-106-
15
0125(3). Thereafter, beneficiaries are further classified into subgroups depending
16
17 upon their ADL scores. Id. DSHS performs annual CARE reassessments for all

18 45,000 personal care service beneficiaries to ensure that everyone is properly

19 classified. WAC 388-106-0050(1) (“[DSHS] will assess you at least annually or more

20
often when there are significant changes in your ability to care for yourself.”)
21
(emphasis added).
22

23

DSHS has assigned each acuity classification subgroup a maximum number of

24 base hours for personal care services. WAC 388-106-0125. Beneficiaries with the

25 most severe functional limitations are assigned to the group and subgroup with the
26

ORDER - 5

1 highest number of base hours. Id. By emergency rule, WAC 388-106-0125, Wash. St.

2
Reg. 11-02-041 (Dec. 30, 2010), the State identified the base hours assigned to each
3
subgroup as follows:
4

5

TABLE 1

6

Classification

2010 Base

2011 Reduced Base

7

E High

Monthly Hours

Monthly Hours

416

393

8

E Medium

D High

346

327

277

260

9

D Med-High

234

215

10

D Medium D Low

185

168

138

120

11

C High

194

176

C Med-High

12

C Medium

174

158

132

115

13

C Low

B High

87

73

147

129

14

B Med-High

101

84

B Medium

15

B Low

82

69

47

39

16

A High

71

59

A Medium

17

A Low

56

47

26

22

18

Once a beneficiary is assigned to an acuity classification subgroup and

19
allocated the base number of hours associated with that subgroup, those base hours
20
may then be adjusted, either up or down, in accordance with several factors, including:
21

22 (i) the availability of informal supports; (ii) whether there are multiple clients in the

23 same household; and (iii) the characteristics of the living environment, for example,

24 offsite laundry facilities or wood used as a sole source of heat. WAC 388-106-
25
0130(2)-(4) (2010). The result of this computation is the “maximum number of hours
26

ORDER - 6

1 that can be used to develop [a] plan of care.” Emergency Rule WAC 388-106-
2
0130(6), Wash. St. Reg. 10-22-066 (Oct. 29, 2010).
3
If a change in a beneficiary’s medical condition increases his or her need for
4
5 personal care service hours, the beneficiary may request a reassessment. WAC 388-

6 106-0140; 388-106-1303(6)(a). This request may occur at any time a beneficiary

7 concludes the allocated hours are not sufficient. Beneficiaries may also ask their case
8
managers to submit an exception to rule (“ETR”) request for additional hours.
9
WAC 388-440-0001.6 In 2010, out of the roughly 45,000 adult personal care service
10
11 beneficiaries, DSHS processed approximately 2,020 ETR requests. Rector Decl. at ¶ 9

12 (docket no. 125). DSHS approved 89% of the requests for additional hours. Id.

13

In 2009, the State reduced the base hours for each acuity subgroup by an

14
average of four percent, with the largest percentage decreases applied to the
15
classifications associated with the least acuity. See Emergency Rule 388-106-0125,
16

17 Wash. St. Reg. 09-14-046 (July 1, 2009). In mid-2010, the State restored some of

18 these base hours, using the same principle in reverse, i.e., the categories with the

19 greatest acuity were placed as closely as possible to pre-existing levels, while other
20

21 6 Of the individual named plaintiffs in this case, all have been informed about the ETR
22 process since this litigation commenced, and most have requested an ETR. At least one plaintiff (M.J.B.) has received additional hours. Mot. at 12 n.13 (docket no. 95). DSHS
23 denied five of the ETR requests after the committee reviewing the requests determined that
those plaintiffs did not require any additional hours to preserve their health and safety. 24 3d McNeill Decl. at ¶ 10 (docket no. 161). The committee determined that two of the other
ETR requests identified changed medical conditions that required reassessments in CARE, 25 and those individuals will ultimately receive more hours when their classifications change.
26 Id.

ORDER - 7

1 classifications did not regain as much ground. This methodology was consistent with

2
explicit legislative instructions:

3

The personal care services benefit shall be provided to the extent funding

4

is available according to the assessed level of functional disability. Any

5

reductions in services made necessary for funding reasons should be

accomplished in a manner that assures that priority for maintaining

6

services is given to persons with the greatest need as determined by the

assessment of functional disability.
7

RCW 74.09.520(4) (emphasis added).
8

9

At issue in this case is a new set of reductions, set in motion in September 2010,

10 when Washington Governor Christine Gregoire issued Executive Order 10-04, which

11 directed each State agency to reduce expenditures to compensate for a projected
12
budget shortfall in the 2011 fiscal period. Exs. 2-3 to Brenneke Decl. (docket no. 12).
13
In response to the Governor’s Executive Order, DSHS announced plans to reduce in-
14
15 home personal care service base hours by an average of ten percent,7 effective January

16 1, 2011. Id. at Ex. 4; see also Table 1, supra. The fourteen individual named

17 plaintiffs in this case will experience the following reductions:
18
///
19
///
20
21 ///

22
7 This figure reflects the difference in the average numbers of base hours across all acuity 23 categories for 2010 (161.2 hours) and 2011 (144.4 hours). When the decrease for each acuity
group is separately considered, the range of values is between 6.3% (Group E Medium) and 24 18.8% (Group B Low). The State has imposed a greater percentage reduction on individuals
with the least amount of need. The targeted reductions are consistent with the notion that the 25 individuals currently receiving only a handful of personal care service hours per month are the 26 most independent and therefore the least likely to require nursing home care.

ORDER - 8

1

TABLE 2

2
Plaintiff Acuity

2010 Base

2011 Reduced Base

3

Subgroup

Monthly Hours Monthly Hours

A.R.

D Med. High

3228

309

4

M.R.

D Med. High

236

215

5

A.B.

D Med.

185

1669

S.J.

C Med. High

162

145

6

M.J.B.

C Med. High

184

16610

7

J.H.

C Med. High

176

158

C.B.

C Med.

132

115

8

H.C.

C Med.

116

100

K.S.

C Med.

9

D.W.

C Med.

133

115

133

115

10

M.B.

B High

J.B.

B Med.

146

126

82

68

11

An.B.

B Med.

82

68

T.M.
12

B Med.

83

69

13 Exs. 1A-B, 3, 4 to Frederick Decl. (docket no. 40); see also id. at ¶ 3; Exs. 1-4 to Jane

14 B. Decl. (docket no. 33); see also id. at ¶¶ 4a-4d; Exs. 1-2 to S.J. Decl. (docket no. 27);

15 Ex. 2 to Paolino Decl. (docket no. 45); see also id. at ¶ 20; Ex. 1A to C.B. Decl.
16
(docket no. 29); see also id. at ¶ 22; Exs. 1-2 to Chatwin Decl. (docket no. 48); Ex. 1
17
to K.S. Decl. (docket no. 36); see also id. at ¶ 14; Ex. 1A to D.W. Decl. (docket
18

19
8 Prior to the State’s reduction, DSHS granted an ETR to A.R. that authorized an additional 20 165 hours beyond the 157 allocated to A.R. through her CARE assessment. Exs. 2-4 to 21 Frederick Decl. (docket no. 40). This adjustment via ETR has the same effect as assigning
A.R. to acuity subgroup E Medium.
22
9 The State has subsequently reduced A.B.’s hours to 146 because her previous CARE 23 assessment had not properly reduced available hours to account for the fact that A.B. resides
with three siblings who also receive personal care services. Ex. 1 to 4th Jane B. Decl. (docket 24 no. 167-8); see also WAC 388-106-0130(3)(a). A.B. retains the right to appeal this reduction.
Ex. 2 to 4th Jane B. Decl. (docket no. 167-9).
25
26 10 Plaintiff M.J.B. has been approved for an ETR that will increase her base hours. Mot. at 12 n.13 (docket no. 95).

ORDER - 9

1 no. 31); see also id. at ¶ 19; Ex. 1 to Hays Decl. (docket no. 39); see also id. at ¶ 21;
2
Maxon Decl. at ¶¶ 5, 18 (docket no. 26); Ex. 2 to Hayes Decl. (docket no. 47). None
3
of the individual named plaintiffs satisfies the criteria for “exceptional” care, a
4
5 prerequisite to placement in the highest need acuity category, Group E. Most require

6 only mild to moderate assistance with activities of daily living. DSHS sent written

7 notifications to all beneficiaries of the planned service reductions on December 6,

8
2010. See Ex. 1 to Brenneke Decl. at 2-3 (docket no. 12).
9
PROCEDURAL HISTORY
10

11

This litigation ensued shortly after DSHS sent out the service reduction notices.

12 On December 23, 2010, plaintiffs filed a motion for a temporary restraining order and

13 preliminary injunction. Mot. (docket no. 11). After extensive briefing and oral
14
argument on an expedited schedule, on December 30, 2010, the Court denied
15
plaintiffs’ motion for a temporary restraining order. Minute Order (docket no. 73);
16
17 Order (docket no. 76).

18

On January 6, 2011, plaintiffs appealed the Court’s order denying the

19 temporary restraining order, thereby creating ambiguity as to the jurisdiction of both
20
this Court, and the Ninth Circuit. Notice of Appeal (docket no. 78); see also Order at
21
3, M.R. v. Dreyfus, No. 11-35026 (9th Cir. Jan. 14, 2011) (Smith, N.R., J., dissenting).
22
23 Because of the jurisdictional ambiguity, this Court stayed the case pending review by

24 the Ninth Circuit, and struck, without prejudice, plaintiffs’ motion for a preliminary

25 injunction. Minute Order (docket no. 80).
26

ORDER - 10

1

On January 10, 2011, plaintiffs filed an emergency motion with the Ninth

2
Circuit, seeking an injunction pending the appeal. On January 14, 2011, the Ninth
3
Circuit granted relief, but not in the form of an injunction pending appeal. Order, M.R.
4

5 v. Dreyfus, No. 11-35026 (9th Cir. Jan. 14, 2011). Rather, the Ninth Circuit stayed the

6 State’s implementation of the emergency regulation pending a ruling by this Court on

7 plaintiffs’ motion for a preliminary injunction. Id.

8
DISCUSSION
9
A. Standard for a Preliminary Injunction
10

11

In order to obtain preliminary injunctive relief, a plaintiff must demonstrate

12 (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the

13 absence of preliminary relief; (3) a balance of equities tipping in favor of relief; and
14
(4) a weighing of public interest that supports an injunction. Winter, 129 S. Ct. at 376;
15
see also Alliance for the Wild Rockies v. Cottrell, 2011 WL 208360 (9th Cir. Jan. 25,
16
17 2011) (holding that the Ninth Circuit’s “sliding scale” approach continues to be valid
18 after Winter).11 A preliminary injunction is “an extraordinary remedy never awarded

19 as of right.” Winter, 129 S. Ct. at 376.
20

21

22
11 Under the sliding scale approach, “serious questions going to the merits’ and a balance of 23 hardships that tips sharply towards the plaintiff can support issuance of a preliminary
injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury 24 and that the injunction is in the public interest.” Id. at *7. In the present case, the parties do
not address whether the Court should apply the Ninth Circuit’s sliding scale approach. 25 Nonetheless, the Court concludes that application of the alternative standard would not lead to 26 a different result.

ORDER - 11

1

B. Irreparable Harm12

2
To show a likelihood of irreparable harm, plaintiffs argue they need only show
3
that the State’s proposed reduction “may deny them needed medical care.” See
4

5 Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir. 1982); see also Independent Living

6 Ctr. of S. Cal., Inc. v. Maxwell-Jolley, 572 F.3d 644, 658 (9th Cir. 2009) (hereinafter

7 Independent Living Ctr. I).13 In the alternative, plaintiffs argue they need only show a

8
“serious risk” of eventual institutionalization to show a likelihood of irreparable harm.
9
Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003).
10

11

Plaintiffs contend that they have satisfied the standards for irreparable harm

12 because (1) CARE is an individualized assessment of the minimum number of hours

13
12 In their brief, and at oral argument, plaintiffs contended that the Ninth Circuit has already 14 concluded that plaintiffs have shown irreparable harm, and consequently, this Court is bound
by that determination. But the Ninth Circuit did not analyze the substance of plaintiffs’ 15 request for injunctive relief, and declined to issue a temporary restraining order. Order, M.R. 16 v. Dreyfus, No. 11-35026 (9th Cir. Jan. 14, 2011). Instead, the Ninth Circuit issued only a
stay pending this Court’s consideration of plaintiffs’ motion for a preliminary injunction. Id. 17 Accordingly, the question of irreparable harm remains undecided for this Court’s
determination. Cf. Independent Living Ctr. of S. Cal., Inc. v. Shewry, 2008 WL 3891211 at *5 18 (C.D. Cal. 2008) (holding that Ninth Circuit’s order remanding case for a determination on
plaintiffs’ motion for a preliminary injunction was binding as to issue of irreparable harm 19 where Ninth Circuit issued an injunction pending further review by the district court).
20 13 The standard articulated in Beltran and Independent Living Ctr. I is not applicable in this 21 case because personal care services are not included within Medicaid’s definition of “medical
care.” Compare 42 U.S.C. § 1396d(a)(6) (definition of medical care) with 42 U.S.C. 22 § 1396d(a)(24) (definition of personal care services). For example, in Beltran, the State
imposed a rule that completely eliminated eligibility to a class of individuals for Medicaid 23 services. 677 F.2d at 1318 (denying eligibility for medical care to individuals who transferred
assets in order to become eligible for assistance). Similarly, in Independent Living Ctr. I, the 24 evidence demonstrated that medical providers would cease providing services to Medicaid
beneficiaries if the State went forward with its proposed ten percent reduction in 25 reimbursement rates. 572 F.3d at 658. In the present case, plaintiffs do not face a similar 26 reduction or elimination of medical services.

ORDER - 12

1 beneficiaries actually require to remain safely in their homes, and therefore, any
2
reduction of the hours assessed by CARE will necessarily deny the plaintiffs needed
3
services and will pose a serious risk of institutionalization; or (2) even if CARE does
4
5 not assess beneficiaries’ minimum needs, the individual declarations of the named and

6 unnamed plaintiffs demonstrate that, at least as to them, the budget reduction will deny

7 them needed services and pose a serious risk of institutionalization. The Court
8
concludes that plaintiffs have failed to submit evidence that the reduction will deny
9
beneficiaries needed services, or that it will create a serious risk of institutionalization,
10
11 and therefore, plaintiffs cannot show likelihood of irreparable harm under either
12 standard.14

13

1. CARE Does Not Assess Beneficiaries’ Actual Minimum Needs

14

for Personal Care Services

15

Plaintiffs take the position that DSHS uses CARE to individually assess the

16 minimum number of hours that each beneficiary actually requires, and that any cuts in

17 base hours will necessarily provide beneficiaries with less assistance than they
18
absolutely need to preserve health and safety. Plaintiffs contention that CARE
19

20

21 14 In addition, to establish standing necessary to obtain injunctive relief, a plaintiff must show
22 that the likely irreparable harm relates to harm that the plaintiff “has sustained or is immediately in danger of sustaining.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02
23 (1983). The threat of injury must be “real and immediate.” Id. “Abstract injury is not
enough.” Id. The Supreme Court’s heightened requirement for injury in cases involving 24 injunctive relief is particularly relevant here, where plaintiffs seek an order from a federal
court enjoining the State from implementing a State policy. Lyons, 461 U.S. at 112 (noting 25 that respect for principles of federalism require heightened showing of potential harm for
26 plaintiffs to obtain federal injunctive relief of official state action).

ORDER - 13

1 assesses the “minimum” hours each beneficiary needs is misplaced. CARE does not
2
assess beneficiaries’ minimum needs for personal care services.
3
Although the Court agrees that CARE involves an individualized assessment,
4
5 the number of base hours allotted to each of the seventeen acuity subgroups is not
6 linked to individual need.15 Rather, the subgroups reflect the relative acuity of
7 individuals, with beneficiaries in classifications that receive more base hours having
8
more need for personal care services relative to those in categories associated with
9
lower numbers of base hours.16 See Moss Decl. at ¶ 4 (docket no. 68) (“CARE does
10
11 15 The base hours outlined in WAC 388-106-0125 are based on the time study performed prior 12 to the adoption of CARE. In that study, the department measured the amount of time
providers spent assisting beneficiaries with their personal care needs. Moss Decl. at ¶ 3 13 (docket no. 68). DSHS then correlated the time spent by providers with the clinical
characteristics of the beneficiaries involved in the study to determine the relative resource 14 usage of beneficiaries with similar characteristics. Id. The study did not, and indeed could
not, describe or predict the actual number of hours any specific beneficiary might need to 15 perform specific tasks. Rector Decl. at ¶ 6 (docket no. 125); Mahar Decl. at ¶ 6 (docket 16 no. 130). To the contrary, the study merely showed that individuals with certain clinical
characteristics require more (or less) personal care service hours than individuals with 17 different clinical characteristics.
18 16 Construing CARE as assessing only relative need is consistent with the history of CARE, which DSHS implemented in 2004 in response to the legislature’s direction to create a
19 uniform system for comprehensively assessing functional disability. RCW 74.39.005(2). Prior to 2004, the department used an assessment tool (“Legacy”) that was subjective and
20 unreliable. Moss Decl. at ¶ 5 (docket no. 68); Rector Decl. at ¶ 7 (docket no. 125). The 21 legislature directed DSHS to create a more uniform assessment tool based on objective
criteria that would allocate resources more consistently and thereby ensure that individuals 22 with similar clinical characteristics would be awarded a similar number of personal care
service hours. Leitch Decl. at ¶ 7 (docket no. 67); Mahar Decl. at ¶ 5 (docket no. 130) (“A 23 primary goal for the redesign of the assessment tool was to develop classification levels that
would ensure that clients who had the same clinical characteristics would fall within the same 24 classification system and receive the same level of services.”). DSHS made the transition
from Legacy to CARE in a “budget-neutral” manner, dividing the then-available resources 25 between the various categories of recipients. See Leitch Decl. at ¶ 7 (docket no. 67). One of 26 the negative consequences of a shift from a subjective assessment to an objective assessment
is the loss of flexibility in dealing with individuals’ unique circumstances. Jenkins v. Dep’t of
ORDER - 14

1 not measure how many hours a person ‘needs,’ but instead determines what a person’s

2
share of available resources should be based upon the individual’s level of acuity
3
compared to other recipients.”).17
4

5

Similarly, the subsequent evaluation of other factors, performed after the CARE

6 assessment assigns a beneficiary to an acuity classification subgroup, see WAC 388-

7

8

9

10
11 Soc. & Health Servs., 160 Wn.2d 287, 310, 157 P.3d 388 (2007) (Fairhurst, J., dissenting) (“The price of uniformity is that fit may be imprecise in a particular individual’s
12 circumstances.”).
13 17 The Court has carefully reviewed the contrary assertions in the declarations of Charles Reed and Penny Black, filed by plaintiffs in support of their motion. Mr. Reed, however, has
14 no personal knowledge about DSHS’s development and implementation of CARE because he retired from DSHS in 2000, before CARE was developed. Reed Decl. at ¶ 6 (docket no. 18).
15 In contrast, Ms. Black was employed by DSHS in 2004, when it transitioned to CARE. Black 16 Decl. at ¶ 4 (docket no. 19). In her current declaration, Ms. Black states that “[t]he CARE
assessment tool produces an accurate measure of essential need. . . . [It] is designed to, has 17 proven effective to, and is used by [DSHS] to measure the unmet needs that must minimally
be met in order to support a client in his or her home without compromising health or safety.” 18 Id. at ¶ 28. While she was still employed by DSHS, however, Ms. Black provided a
declaration to the Washington State Court of Appeals in connection with an unrelated case. 19 See Black Decl. (Apr. 11, 2005), attached to Work Decl. (docket no. 71). In Ms. Black’s
earlier declaration, she averred that, “[f]ollowing the assessment, eligible individuals are 20 classified into fourteen groups that reflect the intensity of care that is needed. This 21 classification results in a baseline determination of the number of hours of in-home care
[DSHS] may be able to fund.” Id. at ¶ 10 (emphasis added). Thus, Ms. Black’s current 22 testimony, that CARE is an individualized determination of actual need, appears to be
inconsistent with her testimony when she was employed by DSHS, which suggested that the 23 base hour classification is not based on need, but rather on the number of “hours of in-home
care that the Department may be able to fund.” In any event, on balance, the Court gives 24 more weight to the testimony of current DSHS officials, and a plain reading of the
Washington statute and regulations, than to the declarations of Mr. Reed and Ms. Black, and 25 concludes that plaintiffs have not met their burden of producing evidence that CARE 26 evaluates beneficiaries’ minimum needs for personal care services.

ORDER - 15

1 106-0130 (2010), does not take into consideration a beneficiary’s actual individual
2 needs when arriving at a final number of authorized personal care service hours.18
3
Moreover, construing CARE as an individualized assessment of a beneficiary’s
4
5 actual minimum needs cannot be squared with other facts. For example, the parties do
6 not dispute that the ETR process provides beneficiaries with a process for requesting,
7 through their case manager, an increase in the number of personal care service hours
8
over the amount authorized under CARE. See Moss Decl. at ¶ 9 (docket no. 68);
9
Rector Decl. at ¶ 9 (docket no. 125). If plaintiffs were correct in their contention that
10
11 CARE assesses each beneficiary’s actual needs, the ETR process would be superfluous
12 because beneficiaries would never require more hours than the amount they have been
13 assessed by CARE.19
14
15 18 For example, if a beneficiary’s residence does not have on-site laundry facilities, the 16 beneficiary automatically receives an additional eight hours of personal care services, without
regard to whether the nearest laundry facilities are across the street or across town. See WAC 17 388-106-130(6) (2010) (noting that client is entitled to eight hours of additional personal care
services so long as laundry facilities are located offsite, i.e., where the client does not have 18 facilities in his or her own home, and as a consequence, the caregiver is not available to
perform other services while laundry is done). Similarly, CARE provides for an additional 19 eight hours of personal care services per month when a beneficiary uses wood as his or her
sole source of heat. Id. The additional eight hours per month amounts to sixteen minutes per 20 day in a typical month, more than enough in June, but likely insufficient in November. 21 Moreover, the Court notes that a beneficiary located in Spokane will almost certainly require
more assistance with stoking a fire through the winter than will a beneficiary located in more 22 temperate Seattle. Nonetheless, the regulations would automatically award both such
beneficiaries eight additional personal care service hours per month.
23
19 Other structural components of CARE make it illogical to conclude that it determines 24 beneficiaries’ minimum needs. For example, plaintiffs do not dispute the State’s assertion
that CARE’s acuity classification subgroups are comprised of individuals with a wide range 25 of ADL limitations. Thus, for example, all individuals who meet the clinical complexity and 26 cognitive performance requisites to warrant placement in Group C, and who also have an
ADL score of between nine and seventeen, are placed into subgroup C-Medium. WAC 388-
ORDER - 16

1

Also relevant is the State’s four percent reduction in personal care service hours

2
in 2009. Plaintiffs dismiss the 2009 reduction as incomparable to the present case
3
because it was smaller. But logic fundamentally dictates that, plaintiffs’ contention,
4

5 that CARE determines minimum individual need is true, the 2009 reduction,

6 regardless of size, must have necessarily resulted in institutionalization or injury to

7 every single personal care service beneficiary in the State of Washington. Not only
8 have the plaintiffs failed to present any such evidence,20 at oral argument, plaintiffs
9
conceded that the admittedly larger 2011 reduction will not lead to injury or
10
11 institutionalization for every beneficiary in Washington.

12

13

14 106-0125(3)(c). Consequently, two individuals that have the exact same clinical complexity and cognitive performance are assigned to subgroup C-Medium, even if one has an ADL
15 score of nine (indicating only a moderate need for assistance with daily activities) while the 16 other has an ADL score of seventeen (indicating a serious need of assistance with daily
activities). Id.; see also Rector Decl. at ¶ 11 (docket no. 125) (stating that the 10,000 17 individuals currently classified in subgroup C-Medium range significantly in the amount of
assistance needed to perform ADLs and IADLS). Thus, despite having greater need for 18 services, a beneficiary with an ADL score of seventeen receives no more personal care service
base hours than others in the C-Medium subgroup.
19
20 Indeed, the only evidence in the record is that the 2009 reduction did not result in any 20 negative consequences to personal care service beneficiaries. Moss Decl. at ¶ 8 (docket 21 no. 68) (“When personal care hours were reduced for all recipients effective July 1, 2009, the
negative consequences predicted by plaintiffs did not occur. Health and safety were not 22 compromised, and people were not forced into nursing homes due to lack of personal care
services.”). The increases in base hours that took effect in 2010, replacing some of the hours 23 that the State eliminated in the 2009 reductions, also contradict plaintiffs’ position. Plaintiffs
point to no assessment of individual needs that triggered the rise in base hours. Instead, the 24 record suggests that the 2010 increases resulted merely from a budget surplus, negating any
link between the numbers of base hours and what is “necessary in order to meet the 25 individually-assessed needs of the client and to permit the client to remain safely at home.” 26 Reed Decl. at ¶ 30 (docket no. 18).

ORDER - 17

1

Plaintiffs’ concession is consistent with the statistical information submitted by

2
the State. In a review of a sample of the records related to Medicaid beneficiaries who
3
joined Washington’s personal care services program after the reductions went into
4
5 effect on January 1, 2011, over 99%21 of the sampled records reflected no complaint

6 concerning the adequacy of allotted hours. See 2d McNeill Decl. at ¶ 11 (docket

7 no. 132).
8
Plaintiffs argue that CARE assesses beneficiaries’ minimum needs,
9
notwithstanding the structural and logical inconsistencies that result from that
10
11 conclusion. In support of their contention, plaintiffs cite to a number of documents in

12 which department officials suggest that CARE is a method of determining need. See

13 generally Exs. 3, 4 to 3d Brenneke Decl. (docket no. 120); Exs. 3-4 to 4th Brenneke
14
Decl. (docket no. 121); Exs. 3, 5 to Logan-von Wahlde Decl. (docket no. 117); Ex. 2
15
to Black Decl. (docket no. 19); Ex. 2 to 5th Brenneke Decl. (docket no. 144).
16
17 Plaintiffs’ reliance on the various cited documentary and testimonial exhibits for the

18 proposition that CARE uses an individualized assessment to measure needs is

19 misleading. Although the cited documents do generally reference individualized
20
assessments and beneficiary needs, the documents do not specifically address the
21
purpose of the individualized assessment, or the need that is actually being measured.
22
23 DSHS’s submission, and the very structure of CARE itself, demonstrate that CARE

24 21 DSHS reviewed the records of 160 out of the 409 new and reactivated clients with care plans completed after January 1, 2011. 2d McNeill Decl. at ¶ 11 (docket no. 132). Of that
25 total, only one indicated that the client felt that the CARE assessment did not allot an 26 adequate number of personal care service hours. Id.

ORDER - 18

1 uses individual assessments to measure the relative needs of beneficiaries, i.e., how
2
much a beneficiary needs personal care service relative to beneficiaries with different
3
functional limitations. The assessment of relative needs permits the State to fairly
4
5 allocate a limited pool of resources, and to give preference to beneficiaries with the
6 highest functional limitations.22

7

Finally, the Washington Supreme Court’s opinion in Jenkins v. Wash. Dep’t of

8
Soc. & Health Servs., 160 Wn.2d 287, 157 P.3d 388 (2007), does not require a
9
contrary result. In Jenkins, the court addressed a provision in the CARE regulations
10

11 that automatically reduced a beneficiary’s personal care service hours by fifteen

12 percent if the beneficiary lived with his or her caregiver (the “shared living rule”). Id.

13 at 295. Three beneficiaries challenged the shared living rule, arguing that it violated
14 Medicaid’s comparability requirement, 42 U.S.C. § 1396a(a)(10)(B),23 because
15
beneficiaries who lived with their caregiver did not receive the same number of
16
17 personal care service hours as beneficiaries who did not live with their caregiver, even

18
22 Plaintiffs suggest that, if CARE does not determine minimum needs, it violates federal laws 19 that prohibit the provision of unnecessary medical services, as well as CMS directives that
require States to make determinations on coverage based on individualized needs 20 assessments. See 42 U.S.C. § 1396a(a)(30)(A) (state plan must “provide such methods and 21 procedures . . . as may be necessary to safeguard against unnecessary utilization of such care
and services.”); see also 42 U.S.C. §§ 1396a(a)(33)(A), (a)(37); 42 C.F.R. §§ 456.22-.23; 22 Ex. D to Hamburger Decl. (docket no. 151); Ex. 5 to 3d Brenneke Decl. (docket no. 120).
Nonetheless, when pressed at oral argument, plaintiffs’ counsel expressly declined to argue 23 that CARE, and by extension Washington’s entire personal care services program, is invalid
under federal law because individual needs are not evaluated. As the plaintiffs have elected 24 not to press the issue, the Court will not address it.
25 23 The comparability provision mandates that the medical assistance a State provides for any 26 individual “shall not be less in amount, duration, or scope than the medical assistance
available to any other such individual.” Id.

ORDER - 19

1 within the same acuity subgroup. The court agreed, holding that the shared living rule
2
violated Medicaid’s comparability provision because some recipients were treated
3
differently from other recipients where each had the same level of need. Id. at 297
4
5 (citing Schott v. Olszewski, 401 F.3d 682, 688-89 (6th Cir. 2005)). In this case,

6 however, unlike in Jenkins, the State is treating individuals within the same acuity

7 group similarly. Jenkins is therefore inapposite, to the extent it involved disparate
8
treatment of similarly situated beneficiaries.
9
In addition, however, the Jenkins court also held that the shared living rule
10
11 violated Medicaid’s comparability requirement because it reduced benefits based on

12 considerations other than recipients’ actual needs for services. Jenkins, 160 Wn.2d at

13 298-300 (“Once a person is assessed to require and receive a certain number of care

14
hours, the assessment cannot be reduced absent a specific showing that fewer hours are
15
required.”).
16

17

Plaintiffs argue that under the second, alternative reasoning articulated in

18 Jenkins, the State may not reduce benefits without assessing beneficiaries’ needs. The

19 Court construes the alternative reasoning articulated in Jenkins as dicta because it was
20
unnecessary to the Court’s holding. United States v. Henderson, 961 F.2d 880, 882
21
(9th Cir. 1992) (defining dicta as language that is unnecessary to the court’s
22
23 holding).24 To the extent that the language could be read otherwise, the Court declines

24
24 In addition, the Jenkins opinion cites no authority for the broad proposition that Medicaid’s 25 comparability provision requires the State to perform individualized needs assessments. See 26 Jenkins, 160 Wn.2d at 298-300. This Court cannot adopt the reasoning in Jenkins when the
plain language of Medicaid’s comparability provision (which only requires States to provide

ORDER - 20

1 to defer to the state court’s determination on a question of federal law.25 Congoleum
2
Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242 (9th Cir. 1984); RAR, Inc. v.
3
Turner Diesel, Ltd., 107 F.3d 1272, 1276 n.1 (7th Cir. 1997) (“[I]t is nonetheless
4
5 beyond cavil that [federal courts] are not bound by a state court’s interpretation of
6 federal law, regardless of whether [the court’s] jurisdiction is based on diversity of
7 citizenship or a federal question.”).
8
The fact that CARE does not determine each beneficiary’s individual minimum
9
need for personal care services is the primary reason why plaintiffs’ heavy reliance on
10
11 V.L. v. Wagner, 669 F. Supp.2d 1106 (N.D. Cal. 2009), is misplaced. In V.L., the court
12 addressed the State of California’s decision to eliminate or reduce eligibility for
13 personal care services based on beneficiaries’ scores in functional capacity tests. Id. at
14
1109-11. California used functional capacity testing to determine the relative needs of
15
individuals with different disabilities. Id. at 1112 (“FI scores were intended to be used
16
17 by social workers and county and state administrators ‘to compare the FI scores and FI
18 hours of clients on their caseload.’”). As with CARE, California’s functional capacity
19 testing was “not meant to be used as a tool to predict the number of hours an
20
21
equivalent medical assistance to similarly situated beneficiaries) does not appear to require 22 States to perform individualized needs assessments when the State has reduced benefits in the
same proportion to similarly situated individuals.
23
25 Moreover, as the Court has previously noted, CARE is not an individualized assessment of 24 a beneficiaries’ actual needs. See Jenkins, 160 Wn.2d at 315 (Fairhurst, J., dissenting) (“The
CARE tool does not—cannot—allocate state-paid personal care services based on 25 individuals’ actual need.”). Consequently, to require the State to perform an individualized 26 assessment prior to reducing benefits would be nonsensical.
ORDER - 21

1 individual beneficiary needed.” Id. Unlike Washington’s method for allocating
2
personal care service hours, however, to be eligible for California’s personal care
3
services program, a state statute required social workers to make a determination that
4
5 each beneficiary “would not be able to remain safely in his/her home without [the
6 authorized personal care services].” Id. at 1111. Consequently, California’s decision
7 to reduce services based on the relative needs assessment would necessarily result in
8
harm, because the State had already determined that all of the program’s beneficiaries
9
required the authorized services to remain safely in their homes, independent of the
10
11 State’s functional capacity assessment. Id. at 1121-22. By contrast, in Washington,
12 personal care services are authorized exclusively based on relative need for services,
13 and Washington’s statutes do not require DSHS to make an individualized
14
determination that each beneficiary needs services to remain safely in his or her
15
home.26
16
17 ///
18 ///
19 ///
20
///
21
22
26 For similar reasons, the Court rejects plaintiffs’ reliance on Mayer v. Wing, 922 F. Supp. 23 902 (S.D.N.Y. 1996). In that case, Medicaid beneficiaries located in New York received
personal care services based on a physician’s determination of the number of hours the patient 24 actually needed to preserve the patient’s health and safety. Id. at 905 (“On the basis of the
various assessments, a medical review team determines the number of hours of care that an 25 applicant will need.”). Washington, by contrast, has elected to provide personal care services 26 under its state plan, rather than by physician authorization.
ORDER - 22

1

2. The State’s Budget Reduction Will Not Cause Harm to

2

Specific Beneficiaries

3

In support of their motion for a preliminary injunction, plaintiffs filed

4 approximately eighty declarations27 relating to fourteen named plaintiffs and twenty-

5 one additional unnamed potential class members. The Court may not, however,
6
consider evidence of injury to non-parties because in the Ninth Circuit, “system-wide
7
injunctive relief is not available based on alleged injuries to unnamed members of a
8

9 proposed class.” Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999)

10 (en banc).28 Thus, the Court will only address in detail, in this Order, the harm, or

11 threat of harm, alleged by the remaining twelve29 named plaintiffs.
12
With respect to the individual named plaintiffs, plaintiffs’ counsel suggests that
13
the Court, in its previous Order denying plaintiffs’ request for a TRO, discounted or
14

15 trivialized the severity of the various plaintiffs’ medical conditions by treating their

16

17

18
27 The Court reduced that number to seventy-nine when it granted defendants’ motion to 19 strike (docket no. 158), and struck the declaration of Jennifer Wujick (docket no. 119).
Minute Entry (docket no. 164).
20
21 28 In an abundance of caution, however, the Court has reviewed the declarations filed on behalf of the unnamed potential class members. Plaintiffs now seek to add these individuals
22 as plaintiffs and to amend the complaint. See Offer of Proof (docket no. 165). In the event the additional plaintiffs are joined, the Court can address their specific complaints at a later
23 date.

24 29 The number has been reduced from fourteen to twelve because two of the plaintiffs no longer face a threat of harm. Plaintiff M.J.B. has received an ETR increasing her hours and
25 plaintiff H.C. passed away on January 15, 2011, for reasons unrelated to the issues presented 26 in this case.

ORDER - 23

1 allegations of harm as merely speculation.30 Mot. at 13 (docket no. 95). To the
2
contrary, nothing in the Court’s Order should be construed as minimizing the severe
3
disabilities of any of the individual named plaintiffs, or the importance of the services
4
5 provided through the State’s programs. Nonetheless, although the Court has

6 thoughtfully considered the allegations in each of the plaintiffs’ declarations, in light

7 of the prevailing standards for injunctive relief, the Court cannot conclude that
8
plaintiffs have shown a likelihood of irreparable harm. In particular, the declarations
9
relating to the individual named plaintiffs fail to show a threat of harm because they
10
11 (1) ascribe the threat of institutionalization to plaintiffs’ deteriorating medical

12 conditions, unrelated to the provision of personal care service hours; (2) demonstrate

13 ineffective management of currently allocated personal care service hours; or (3)

14
identify non-personal care services as the cause of their predicted institutionalization.

15

a.

Deteriorating Medical Conditions

16

17

With respect to nine of the named plaintiffs, M.R., S.J., A.B., An.B., M.B., J.B.,

18 J.H., D.W., and C.B., the record reflects that their medical conditions have deteriorated

19
30 Plaintiffs cite to Winter for the proposition that specific, predictive judgments are not 20 speculative, and may be considered by the Court in determining a likelihood of irreparable 21 harm. 129 S. Ct. at 378. In Winter, the Supreme Court addressed a proposed injunction that
would require naval vessels engaged in military exercises to suspend use of certain types of 22 sonar when vessels detected marine mammals within a specified distance. Id. at 371. The
Court held that the testimony from military officers regarding the effect of the injunction, 23 based on their actual experience with similar (although not identical) interruptions in the use
of sonar during training exercises, was not speculation, but rather, a specific, predictive 24 judgment. Id. at 380. Here, unlike in Winter, the plaintiffs do not support their formulaic
recitation of “likely” harm (which the Court notes is repeated verbatim or nearly verbatim 25 throughout the various declarations) with the type of specific evidence that would render the 26 opinions specific, predictive judgments, rather than mere speculation.

ORDER - 24

1 since their last CARE assessment. See Maxon Decl. at ¶¶ 20, 29 (docket no. 26)
2
(M.R.); 2d Maxon Decl. at ¶¶ 4-13, 18 (docket no. 102) (M.R.); S.J. Decl. at ¶ 20
3
(docket no. 27); 2d Braddock Decl. at ¶ 3 (docket no. 100) (S.J.); C.B. Decl. at ¶ 23
4
5 (docket no. 29); 2d Hayes Decl. at ¶ 7 (docket no. 103) (J.H.); 2d Jane B. Decl. at ¶¶ 6,
6 6a, 6b (docket no. 96) (A.B., M.B., An.B. & J.B.); D.W. Decl. at ¶ 6 (docket no. 31)
7 (noting that, after latest assessment took place in September 2010, D.W. was
8
hospitalized for ten days in December 2010 for a heart attack); McIntosh Decl. at ¶ 7
9
(docket no. 32) (D.W.). Consequently, the Court is unable to determine whether the
10
11 alleged threat of institutionalization these particular plaintiffs face is the result of the
12 State’s reduction in personal care service hours or the deterioration in their medical
13 conditions.31
14
15 31 Even if the Court could conclude that the allegations in the declarations relating to these 16 nine individual plaintiffs raised questions of potential harm resulting from the planned
reductions, the State submitted evidence controverting the possibility of any harm. See 17 McNeill Decl. at ¶ 6 (docket no. 131) (M.R.); Peterson Decl. (docket no. 127) (S.J.); Harper
Decl. (docket no. 128) (A.B., An.B., J.B., M.B.); Chan Decl. (docket no. 129) (J.H.). For 18 example, defendants submitted undisputed evidence that J.H. requested new living
arrangements because his live-in provider, Ms. Hayes, refused to allow him to contact family 19 members, and he no longer felt safe. Chan Decl. at ¶ 6 (docket no. 129). Although
Ms. Hayes disputes the underlying facts, i.e., whether she refused to allow J.H. to contact 20 family members, plaintiffs submit no evidence controverting the fact that J.H. sent a request 21 to his case manager to change his living arrangements. Consequently, his placement in a
nursing facility is unrelated to the number of hours DSHS has allocated for his care in 2011, 22 but rather is based on the availability of temporary care options following J.H.’s emergency
removal from his living arrangements. Id. ¶ 9. Moreover, many of the allegations in 23 plaintiffs’ declarations appear to be purely speculative. For example, one of A.B.’s providers,
Jeanine Starr, testifies that the reduction in services “could result in the need for [A.B] to seek 24 emergency room care and [A.B.] will likely be admitted to a nursing home at that point.”
Starr Decl. at ¶ 26 (docket no. 34) (emphasis added). The chain of events described in 25 Ms. Starr’s declaration is speculative at best, and does not demonstrate a likelihood of 26 irreparable harm.
ORDER - 25

1

b. Inefficient Use of Currently Allocated Personal Care

2

Service Hours

3

The record reflects that, in response to the State’s budget cuts, plaintiffs K.S.

4 and A.R. have reduced or eliminated their weekend care provider hours. K.S. Decl. at
5 ¶ 15 (docket no. 36); Albert Decl. at ¶ 12 (docket no. 37) (K.S.); Frederick Decl. at
6
¶ 18 (docket no. 40) (A.R.). Prior to the reduction, K.S. received 133 personal care
7
service hours, which she apportioned 93 hours to her weekday provider, and 40 hours
8
9 to her weekend provider. K.S. Decl. at ¶¶ 14-15 (docket no. 36); Morrow Decl. at ¶ 5

10 (docket no. 38). Although DSHS only reduced K.S.’s hours by 18, she responded by
11 releasing her weekend provider entirely. K.S. Decl. at ¶ 6 (docket no. 36); Albert
12
Decl. at ¶ 12 (docket no. 37). Now K.S. is receiving more hours during the week than
13
she previously received (115 instead of 93), but has no coverage on the weekend,
14
15 which she contends will result in harm. 3d K.S. Decl. at ¶ 7 (docket no. 145); 2d K.S.

16 Decl. at ¶¶ 4, 6 (docket no. 97). The State responds that, rather than simply releasing
17 her weekend provider, K.S. could have worked with her case manager to develop a
18
schedule with shorter gaps between care. See 2d McNeill Decl. at ¶¶ 6-7 (docket
19
no. 132). The Court concludes that a factual dispute exists as to whether the cause of
20
21 K.S.’s lack of weekend services could be resolved by effective case management.

22

Similarly, the decision by A.R.’s guardian, Ms. Frederick, to eliminate care

23 provider hours on Sundays appears to be an issue that might be addressed through case
24
management. Specifically, Ms. Frederick decided to cut out one day of care on the
25
weekend because it was “inconvenient for [the provider]” to work a partial shift on
26

ORDER - 26

1 Sunday. 2d Frederick Decl. at ¶ 5 (docket no. 113). The State agrees that the lack of
2
assistance on Sundays could create a problem for A.R.’s health or safety, particularly
3
given Ms. Frederick’s inability to assist with A.R.’s care. 2d McNeill Decl. at ¶ 5
4
5 (docket no. 132). But the State notes that Frederick should not have simply acceded to

6 the provider’s request to eliminate a partial Sunday shift for convenience reasons. Id.

7 The Court can only conclude that the declarations relating to A.R. do not suggest a
8
likelihood of irreparable injury because, until the State has had the opportunity to
9
correct the gap in care through case management, the Court cannot determine whether
10
11 the threat of harm is the result of the State’s reduction, or the decision by A.R.’s

12 guardian to give preference to the provider’s convenience over A.R.’s care needs.

13

These plaintiffs’ apparent failure to contact their case managers about their

14
concerns is particularly noteworthy. See 2d McNeill Decl. at ¶ 3 (docket no. 132).
15
Rather than giving the State the opportunity to correct any gaps in care, these plaintiffs
16

17 appear to assume that the reduction will result in harm and that the only alternative to

18 reinstatement of their hours is institutionalization.

19

c. Non-Personal Care Services

20
Plaintiff T.M.’s provider, a family member who currently lives with T.M., is
21
concerned that as a result of the State’s reduction in T.M.’s personal care service hours
22

23 from eight-three to sixty-nine, she will have no alternative but to seek other

24 employment outside the home. Hays Decl. at ¶¶ 4, 6 (docket no. 39). She believes

25 that if she is forced to take a position outside the home, T.M. faces a significant threat
26

ORDER - 27

1 of institutionalization because T.M. needs constant supervision and “is incapable of
2
staying safe while alone for more than a few minutes.” Id. at ¶ 6. Plaintiffs M.R.,
3
A.B., M.B., and A.R. likewise argue that they face a threat of institutionalization
4
5 because the budget reduction will reduce available services for supervision, exercise,

6 and medication management. Maxon Decl. at ¶ 26 (docket no. 26) (M.R.); Starr Decl.

7 at ¶ 26 (docket no. 34) (A.B.); Jane B. Decl. at ¶ 23 (docket no. 33) (A.B., M.B.);
8
Partridge Decl. at ¶¶ 5b, 28 (docket no. 35) (M.B.); Frederick Decl. at ¶ 18 (docket
9
no. 40) (A.R.). But personal care services do not include supervision, exercise, or
10
11 medication management. See WAC 388-106-0010 (defining personal care services as

12 “physical or verbal assistance with activities of daily living (ADL) and instrumental

13 activities of daily living (IADL) due to your functional limitations.”).32 Plaintiffs

14
cannot show a likelihood of irreparable harm based on factors that are unrelated to the
15
reduction in personal care services.33
16

17

Plaintiffs have not shown that the budget reduction might deny any of the

18 individual named plaintiffs needed services, or that it poses a serious risk of

19
32 Although regulations define ADLs as including assistance with certain locomotion, the 20 Court understands the regulations to refer to transit between living spaces or areas within 21 living spaces, not the type of exercise necessary to preserve a beneficiary’s health, which is
more akin to physical therapy. See WAC 388-106-0010; Harper Decl. at ¶ 10 (docket 22 no. 128) (noting that personal care services do not include assistance with exercise); see also
2d McNeill Decl. at ¶ 8 (docket no. 132) (noting that personal care services do not include 23 supervision).

24 33 None of these plaintiffs are in the highest acuity classification subgroup (see supra Table 2 at 9) (T.M. – B Medium; M.R. – D Medium-High; A.B. – D Medium; M.B. – B High; and
25 A.R. – B Medium-High) and could ask for either a reclassification to a higher subgroup, or an 26 ETR, which could address any problems caused by service reductions.

ORDER - 28

1 institutionalization.34 On balance, in reviewing the plaintiffs’ and the defendants’
2
declarations, the Court cannot conclude that plaintiffs have shown by a preponderance
3
of the evidence that the allegations contained in plaintiffs’ declarations are more likely
4
5 true than the contrary allegations in the defendants’ declarations. Accordingly, the
6 Court cannot conclude that plaintiffs have shown the likelihood of irreparable injury
7 necessary to justify a preliminary injunction.
8
C. Likelihood of Success on the Merits
9
Although plaintiffs have failed to show a likelihood of irreparable harm, the
10
11 Court has also considered the likelihood of success on the merits of plaintiffs’ claims
12 that the decreases in personal care service hours violate the Due Process Clause of the
13 Fourteenth Amendment to the United States Constitution, the Americans with
14
Disabilities Act, and the Medicaid Act, and has concluded that plaintiffs have failed to
15
meet their burden on that prong of the preliminary injunction analysis as well.
16
17 ///
18 ///
19
34 Plaintiffs argue that the Court need not rely on the individual plaintiffs’ showing of 20 potential harm because the department has conceded that the cuts will result in individuals 21 moving to nursing homes. See Ex. 4 to Brenneke Decl. (docket no. 12-8 at 7) (excerpt from
the State’s policy plan noting that “[i]n some cases, a safe in-home plan of care will not be 22 possible and clients may need to go to community residential or nursing facility settings.”).
At oral argument, defendants did concede that some beneficiaries might require more care 23 than the amount allocated after the reduction, and thus may end up moving into a nursing
home at some future time. Defendants argue, however, that these issues can be resolved by 24 effective case management, and use of the ETR process. The Court concludes that it cannot
determine on the present record whether the claimed “serious risk” of institutionalization is 25 the result of the hours reduction or plaintiffs’ failure to properly manage otherwise adequate 26 resources.
ORDER - 29

1

1. Due Process Claim

2
Plaintiffs’ Fourteenth Amendment due process claim, formerly addressed with
3
little detail,35 is now the centerpiece of their argument in favor of a preliminary
4

5 injunction. Now, for the first time, in their brief filed on January 21, 2011 (docket

6 no. 95), plaintiffs contend that the Due Process Clause entitles them to notice of (1) the

7 right to request an ETR if the reduced hours are insufficient to meet their health and
8
safety needs; (2) the right to a CARE reassessment; and (3) the availability of
9
alternative Medicaid benefits, such as nursing homes. The Due Process Clause does
10
11 not, however, require the State to provide notice of the specific information sought by

12 the plaintiffs. Moreover, as previously noted in the Court’s Order denying plaintiffs’

13 motion for a preliminary injunction, Medicaid recipients are not entitled to notice and

14
a hearing when the State implements a mass change that affects some or all recipients.

15

a. The State Had No Obligation to Give Notice of the ETR or

16

ARE Reassessment Processes or the Alternatives to

17

Community-Based Care

18

Plaintiffs argue that DSHS’s service reduction notice should have identified the

19 available alternatives to increase beneficiaries’ personal care services hours, including
20 the ETR and CARE reassessment processes, and also should have notified
21
22 35 In the first round of briefing on plaintiffs’ motion for a temporary restraining order, plaintiffs devoted little more than three pages of discussion to their due process claim. Mot.
23 at 23-25 (docket no. 11); Reply at 7-8 (docket no. 69). Moreover, although citing to the seminal United States Supreme Court cases on notice and hearing rights, Goldberg v. Kelly,
24 397 U.S. 254 (1970), and Matthews v. Eldridge, 424 U.S. 319 (1976), plaintiffs limited their due process analysis to whether the State had failed to comply with Medicaid’s regulatory
25 notice requirements when DSHS sent out the original reduction notification letters in 26 December 2010.

ORDER - 30

1 beneficiaries of alternatives to community-based care. However, the hours awarded
2
via an ETR are not an entitlement to which plaintiffs hold a legitimate property interest
3
because, by definition, an ETR is an award of hours in excess of the amount the
4
5 beneficiary is entitled to by rule. WAC 388-440-001(1)(b). Accordingly, plaintiffs

6 have no right to notice or a hearing as to the availability of the ETR process. Bd. of

7 Regents v. Roth, 408 U.S. 564, 577 (1972) (holding that a beneficiary of state aid has
8
no right to notice or a hearing unless the beneficiary has a legitimate property interest
9
in the entitlement). With respect to the right to a reassessment, which plaintiffs
10
11 contend is critical in light of the evidence of changes in their informal supports, the

12 State may modify an existing assessment without notice or an opportunity for a

13 hearing when a beneficiary experiences a change in available informal supports.
14
WAC 388-106-0050(2)(c). Accordingly, the State is under no obligation to provide
15
notice of the right to a reassessment under the present circumstances. Finally, with
16
17 respect to plaintiffs’ contention that the State should have provided notice of care

18 alternatives, plaintiffs already have notice. In order to receive community-based care,

19 plaintiffs must sign a waiver acknowledging their right to institutional care. See 2d

20
McNeill Decl. at ¶ 12 (docket no. 132).

21

b. The State Had No Obligation to Provide Notice and

22

Hearing Rights for a Mass Change in Benefits

23

Although Medicaid regulations provide for notice and an opportunity to be

24
heard in connection with certain State actions, see, e.g., 42 C.F.R. § 431.200,
25
recipients are not entitled to a hearing if the sole issue is a state law requiring an
26

ORDER - 31

1 automatic change affecting some or all recipients. 42 C.F.R. § 431.220(b). The
2
limitation on the hearing requirement arises out of the practical consideration that,
3
absent some factual dispute about an individual’s right to benefits, a hearing would
4
5 serve little, if any purpose. See Rosen v. Goetz, 410 F.3d 919, 926 (6th Cir. 2005);

6 Benton v. Rhodes, 586 F.2d 1, 3 (6th Cir. 1978) (“[M]atters of law and policy are not

7 subject to any hearing requirements under the applicable regulations, whether the
8
hearing be pre- or post-termination.”). Washington law is in accord, as both the statute
9
and regulations disclaim any right to a hearing for the purpose of challenging mass
10
11 changes to public benefits programs. RCW 74.08.080(1)(b) (“An applicant or

12 recipient has no right to an adjudicative proceeding when the sole basis for the

13 department’s decision is a state or federal law that requires an assistance adjustment

14
for a class of recipients.”); WAC 388-418-0020(9) (noting that fair hearing rules do

15

not apply to a mass change in medical assistance benefits).
16

17

Plaintiffs appear to concede36 that a mass change does not give rise to hearing

18 rights; only changes that create disputed facts give rise to hearing rights. See

19 Washington v. DeBeaugrine, 658 F. Supp. 2d 1332, 1335 (N.D. Fla. 2002) (“Both
20
sides have agreed further that there is no right to a hearing when there is no factual
21
issue attending a denial or reduction in services—that is, when there is no factual issue
22
23 to be heard.”). Nonetheless, plaintiffs contend that the State’s reduction in this case

24 necessarily gives rise to factual questions as to whether individual beneficiaries will

25 36 Mot. at 25 (docket no. 95) (noting that hearings must only be provided for challenges to 26 service reductions that are factually erroneous).

ORDER - 32

1 have sufficient personal care service hours to meet their needs. While an across-the-
2
board reduction will always raise factual questions about the effect of the reduction on
3
specific individuals, it does not create factual questions as to the reduction itself. See,
4
5 e.g., Jeneski v. Myers, 163 Cal. App. 3d 18, 32, 209 Cal. Rptr. 178 (1984) (“The initial

6 cutback is indeed an across-the-board reduction in benefits mandated by state law and

7 is not an individual denial thereof . . . [and therefore] we do not believe that an 8 evidentiary hearing prior to termination was mandatory.”).37 The wholesale nature of
9
the State’s budget reduction is fatal to plaintiffs’ due process claim because an across-
10
11 the-board reduction is, by its very nature, unrelated to the specific facts of any
12 individual case, and therefore not a proper subject for an evidentiary hearing.38

13

Plaintiffs are not entitled to notice or hearing rights for an across-the-board

14
budget reduction, and as such, have failed to show a likelihood of success on the
15
merits of their due process claim.
16

17 ///

18 ///

19
37 Plaintiffs retain the right to request a reassessment under CARE, or to ask their case 20 manager to request an ETR on their behalf. Both events provide for a right to grieve or appeal 21 the decision. See WAC 388-106-1305; 388-440-0001(4).
22 38 In the alternative, plaintiffs rely heavily on Budnicki v. Beal, 450 F. Supp. 546 (E.D. Pa. 1978), for the proposition that even an across-the-board reduction of Medicaid benefits
23 requires a hearing. In Budnicki, the court held that the State could not reduce Medicaid benefits with an across-the-board budget reduction without providing notice and an
24 opportunity for a hearing, pursuant to 45 C.F.R. § 205.10(a)(4). 450 F. Supp. at 551-52. The Sixth Circuit subsequently rejected the legal theory adopted in Budnicki. Benton, 586 F.2d at
25 3. Moreover, the regulation at issue in Budnicki is no longer applicable. See 42 C.F.R. 26 § 431.220(b); Rosen, 410 F.3d 919, 926 (6th Cir. 2005).

ORDER - 33

1

2. Americans with Disabilities Act Claim

2
Plaintiffs fail to show a likelihood of success on their Americans with
3
Disabilities Act (“ADA”) claim because (i) the State’s budget reduction does not leave
4

5 individuals with no choice to submit to institutional care to obtain needed services, and

6 therefore does not violate the ADA’s integration mandate; and (ii) it is likely that

7 requiring the State to continue current funding levels for personal care services

8
indefinitely would constitute a fundamental alteration in the State’s Medicaid program.

9

a. The Reduction to Personal Care Service Hours Does Leave

10

Plaintiffs with No Alternative but to Submit to Institutional

11

Care to Obtain Needed Services

12

The ADA precludes public entities from administering programs in ways that

13 have the effect of segregating disabled individuals from the general community.

14 Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999). Known as the “integration
15
mandate,” and codified by regulation, the ADA requires that persons with disabilities
16
receive services in the most integrated setting appropriate to their needs. 28 C.F.R.
17
18 § 35.130(d); Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 994 (N.D. Cal. 2010) (citing

19 Olmstead, 527 U.S. at 597). In order to comply with the integration mandate, States
20 must implement reasonable modifications to otherwise discriminatory state policies,
21
practices, or procedures, although the ADA does not require States to make
22
modifications that “fundamentally alter” the nature of the service program or activity.
23
24 28 C.F.R. § 35.130(b)(7).39

25
26 39 The fundamental alteration defense is an affirmative defense that the Court considers only if the plaintiff has met its burden in showing a likely violation of the ADA’s integration

ORDER - 34

1

To analyze whether a State’s actions violate the ADA’s integration mandate,

2
the Court must apply the following three-prong test: (1) whether the State’s treatment
3
professionals have determined that community placement is appropriate; (2) whether
4

5 the affected persons consent to community placement; and (3) whether the placement

6 can be reasonably accommodated, “taking into account the resources available to the

7 State and the needs of others with . . . disabilities.” Olmstead, 527 U.S. at 607
8 (emphasis added).40
9
Here, plaintiffs rely heavily on Fisher, 335 F.3d 1175, contending that the
10
11 State’s budget reduction will violate the ADA’s integration mandate by forcing

12 individuals to either forego needed personal care services or move to a nursing home.

13 In Fisher, the State of Oklahoma imposed a limit on the number of prescriptions that
14
beneficiaries in community-based care programs could receive each month. Id. at
15
1178. The State did not impose a limit on the number of prescriptions that
16
17 beneficiaries living in nursing facilities could receive. Id. The plaintiffs, a group of

18 individuals receiving community-based care, sued under the ADA, arguing that

19 Oklahoma’s new prescription limitations facially discriminated against beneficiaries
20
21 mandate. See Olmstead, 527 U.S. at 603-04. The Court may consider the viability of affirmative defenses in addressing whether plaintiffs have shown a likelihood of success on
22 the merits. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir. 2007) (“Because the burdens at the preliminary injunction stage track the burdens at trial, once the
23 moving party has carried its burden of showing a likelihood of success on the merits, the burden shifts to the non-moving party to show a likelihood that its affirmative defense will
24 succeed.”).
25 40 Although the cited section of Olmstead only commanded a plurality of votes, the Ninth 26 Circuit has adopted it as controlling authority. See Townsend v. Quasim¸328 F.3d 511, 519
n.3 (9th Cir. 2003); Sanchez v. Johnson, 416 F.3d 1051, 1064 n.7 (9th Cir. 2005).

ORDER - 35

1 who had chosen community-based care, and would compel beneficiaries to either
2
move into nursing homes or forego needed medication. Id. at 1179. The Tenth Circuit
3
held that the facial discrimination violated the ADA’s integration mandate because it
4
5 forced individuals to move into nursing homes to obtain needed medical care. Id. at

6 1182.

7

Fisher is distinguishable from the present case. In Fisher, the court addressed a

8
case of facial discrimination. The State provided certain services in nursing homes
9
that it did not provide to individuals living outside nursing homes. Id. at 1179;
10

11 compare Townsend, 328 F.3d at 517 (noting that the problem with the State program

12 was not whether the State provided the services, but where it provided the services).

13 The ADA prohibits States from providing services to beneficiaries living in
14
institutions while simultaneously limiting the availability of those same services to
15
beneficiaries who elect to live in a community-based setting. See Townsend, 328 at
16
17 517. In the present case, the record does not reflect that the State is providing services

18 to individuals in institutions that it has declined to provide to individuals living in

19 community-based settings. To the contrary, plaintiffs’ evidence demonstrates that
20
individuals living in community-based settings currently receive more and better care
21
than individuals living in institutions. See Anderson-Webb Decl. at ¶ 31 (“I am
22
23 worried that in a nursing home, [J.P’s] pressure sores will not improve because [J.P.]

24 will not get the attention [J.P.] needs to combat infection and move often enough.”)

25 (docket no. 105); see also Jane B. Decl. at ¶ 24c (docket no. 33) (An.B); Davis Decl. at
26

ORDER - 36

1 ¶ 33 (docket no. 30) (C.B.); Maxon Decl. at ¶ 30 (docket no. 26) (M.R.); Paulino Decl.
2
at ¶ 26 (docket no. 45) (M.J.B.); Hays Decl. at ¶ 32 (docket no. 39) (T.M.); McIntosh
3
Decl. at ¶ 21 (docket no. 32) (D.W.); Faatoafe Decl. at ¶ 26 (docket no. 56) (Z.J.); Lee
4
5 Decl. at ¶ 30 (docket no. 147) (G.R.); Frost Decl. at ¶ 21 (docket no. 149) (J.W.).
6 Based on the record, therefore, the Court cannot conclude that the reduction
7 discriminates against beneficiaries that have elected community-based care.
8
Consequently, unlike in Fisher, where the State facially discriminated against
9
individuals in community-based settings by only making some medically necessary
10
11 services available in an institutional setting, here, plaintiffs’ evidence does not
12 demonstrate that the reduction leaves them no choice but to submit to institutional
13 care.41
14
Plaintiffs also argue that they are not required to show that the budget reduction
15
leaves them no alternative but institutional care, relying heavily on Brantley v.
16
17 Maxwell-Jolley, 656 F. Supp. 2d 1161 (N.D. Cal. 2009), for the proposition that they
18 only need to demonstrate that the State’s proposed action poses a serious risk of
19 institutionalization. In Brantley, California attempted to impose a limit on Medicaid
20
beneficiaries of three days of Adult Day Health (“ADH”) services per week. Id. at
21
1167. Prior to the change, beneficiaries could have up to five days of ADH per week.
22
23 Id. at 1164-65. Individuals in California’s program obtained ADH services by
24 41 In Fisher, the plaintiffs presented evidence from their physicians that they required more than five prescriptions per month. Id. at 1179 (“[One plaintiff] takes approximately sixteen
25 prescription medications . . . all of which are prescribed by her doctors.”). Conversely here, 26 plaintiffs’ personal care services are not medically necessary to preserve the plaintiffs’ health
and safety.
ORDER - 37

1 participating in a rigorous medical screening evaluation over a three-day period. Id. at
2
1165. Following the lengthy assessment, performed by doctors, nurses, social
3
workers, and physical therapists, among others, the team of evaluators prepared a plan
4
5 of care, which included certifications that the number of days of ADH authorized by

6 the plan were medically necessary to preserve the health of the specific beneficiary.

7 Id. In reviewing the likelihood of success on the merits of the plaintiffs’ claim that the
8
State’s planned reduction violated the ADA’s integration mandate, the court held that,
9
under Fisher, the plaintiffs need not show that the State’s action would leave the
10
11 plaintiffs no choice but to go into an institution to obtain needed medical care. Id. at

12 1170. Instead, the Brantley court held that plaintiffs had met their burden because the

13 reduction posed a “serious risk” of institutionalization. Id. at 1171. In reaching its
14
decision, the court relied heavily on the physician-prepared care plans, which certified
15
that the authorized ADH benefits were medically necessary to preserve the health and
16
17 safety of individual beneficiaries and to prevent the need for institutionalization. Id. at

18 1172.

19

Brantley is inapposite. As a factual matter, each of the plaintiffs in Brantley

20
had physician-certified care plans indicating that ADH care was medically necessary
21
to preserve their health and safety, and to prevent the need for institutionalization.
22

23 See, e.g., id. (“Of the 100 participants, 44 of them have Medi-Cal approved [care

24 plans] certifying a need for four to five days per week of attendance to avoid

25 institutionalization.”). Conversely, the hours assessed in CARE do not represent the
26

ORDER - 38

1 minimum number of hours necessary to prevent institutionalization, and plaintiffs

2
point to no analogous certification by a physician or other professional that says
3
otherwise.
4

5

Moreover, the court in Brantley erroneously relied upon Fisher for the

6 proposition that a plaintiff need only show a “serious risk” of institutionalization to

7 establish a violation of the integration mandate.42 Id. at 1171. In Fisher, the Tenth
8
Circuit did not state that a beneficiary need only show a “serious risk” of
9
institutionalization to show a likelihood of success on the merits of an ADA
10
11 integration mandate claim. 335 F.3d at 1184. To the contrary, the court in Fisher held

12 that plaintiffs had shown a likelihood of success on the merits “[b]ecause the [State’s

13 action] does not allow the plaintiffs to receive services for which they are qualified
14
unless they agree to enter a nursing home.” Id. at 1182 (emphasis added). Thus, in
15
Fisher, the court required the plaintiffs to show that they had no choice but to enter
16
17 into a nursing home to obtain needed care. In Brantley, the court expressly rejected

18 the defendants’ claim that Fisher required plaintiffs to show that the State’s action left

19

20 42 The Civil Rights Division of the United States Department of Justice (“DOJ”) filed an 21 amicus brief in support of plaintiffs’ claims, arguing that under ADA regulations, parties need
only show a threat of eventual institutionalization to establish a violation of the integration 22 mandate, rather than a threat of immediate institutionalization. Amicus Br. (docket no. 139).
DOJ argues that, as the agency charged with enforcement of the ADA, the Court must give 23 deference to its interpretation of ADA regulations. Id. But DOJ has not promulgated
regulations interpreting the ADA’s integration mandate to require only a showing of eventual 24 institutionalization to show a violation of the integration mandate. To the contrary, DOJ has
merely taken a position in this litigation that the Court should adopt its interpretation of the 25 regulation. The Court owes no deference to a self-serving agency interpretation taken solely 26 in the context of ongoing litigation. Mid-America Care Found. v. NLRB, 148 F.3d 638, 642
(6th Cir. 1998); Alaniz v. Office of Personnel Mgmt., 728 F.2d 1460 (Fed. Cir. 1984).

ORDER - 39

1 them no choice but to enter a nursing home, holding instead that Fisher only required
2
plaintiffs to show a “serious risk” of institutionalization to demonstrate a likelihood of
3
success on their ADA claim. Brantley, 656 F. Supp. 2d at 1170 (“Defendants fail to
4
5 cite any relevant authority imposing a ‘no choice’ requirement.”). The Tenth Circuit

6 only discusses the “serious risk” of institutionalization in the context of its analysis of

7 likelihood of irreparable harm. 335 F.3d at 1184. Accordingly, the Brantley court
8
erred in concluding that a “serious risk” of institutionalization is sufficient to show a
9
likelihood of success on the merits of an ADA integration mandate claim. The proper
10
11 standard to show a violation of the integration mandate, set forth in Fisher, requires

12 plaintiffs to show that the State’s action leaves them no choice but to submit to

13 institutional care to obtain services for which they are otherwise qualified.

14
b. Any Order Requiring the State to Continue Funding

15

Personal Care Services at Pre-2011 Levels Likely

Constitutes a Fundamental Alteration of the State’s

16

Medicaid Program

17

Even if plaintiffs could establish a likelihood of success on their claim that the

18
State’s budget reduction violated the ADA’s integration mandate, the Court concludes
19

that the State has met its burden in presenting evidence that the return to pre-2011
20

21 funding levels would likely constitute a fundamental alteration of the State’s Medicaid

22 program. Courts have construed the third element of the Olmstead test as
23 incorporating the fundamental alteration defense. See, e.g., Arc of Wash. State, Inc. v.
24
Braddock¸427 F.3d 615, 618 (9th Cir. 2005) (“The Supreme Court has instructed
25
courts to be sympathetic to fundamental alteration defenses, and to give States
26

ORDER - 40

1 ‘leeway’ in administering services for the disabled.”); see also Olmstead¸ 527 U.S. at
2
604 (“Sensibly construed, the fundamental alteration component of the reasonable-
3
modifications regulation would allow the State to show that, in the allocation of
4
5 available resources, immediate relief for the plaintiffs would be inequitable, given the
6 responsibility the State has undertaken for the care and treatment of a large and
7 diverse population of persons with mental disabilities.”) (emphasis added). The State
8
can satisfy its burden to show that the requested modification is a “fundamental
9
alteration” by submitting evidence demonstrating that the modification would in fact
10
11 compel cutbacks in services to other Medicaid recipients. See, e.g., Townsend, 328
12 F.3d at 520 (noting that the State could be entitled to the benefit of the fundamental
13 alteration defense if it could show that the added financial burden would result in
14
cutbacks to other Medicaid programs); see also Fisher 335 F.3d at 1183 (rejecting
15
State’s argument that the need to fill a budget deficit was sufficient to constitute a
16
17 “fundamental alteration” of the State’s Medicaid program, but noting that a budget
18 deficit might be sufficient if the State submitted evidence demonstrating that
19 preserving the beneficiaries’ right to unlimited prescriptions would in fact compel
20
cutbacks in services to other Medicaid recipients).
21
Here, the State has submitted unrefuted evidence that it will need to make
22
23 drastic cuts in other state programs if this Court grants plaintiffs’ requested
24 preliminary injunction. See, e.g., Drefus Decl. at ¶ 6 (docket no. 124) (describing
25 alternative programs that will be reduced or eliminated if the Court enjoins the State
26
ORDER - 41

1 from reducing funding for the personal care services program); Ex. 3 to 2d Work Decl.

2
(docket no. 134) (describing other cuts DSHS will likely be required to make to social
3
services beginning in March 2011).
4

5

Plaintiffs have failed to show a likelihood of success on their claim that the

6 State’s reduction of hours constitutes a violation of the ADA’s integration mandate,

7 and even if they could show likely success, their proposed modification would likely
8
constitute a fundamental alteration of the State’s Medicaid program. So long as a
9
State is genuinely and effectively in the process of deinstitutionalizing disabled
10
11 persons with an even hand, courts should not interfere. Arc of Wash. State, Inc., 427

12 F.3d at 620. Based on the record in this case, the Court finds that Washington has a

13 genuine and effective commitment to deinstitutionalization. Over the last decade, the
14
number of institutionalized disabled individuals in Washington has steadily declined.
15
Leitch Decl. at ¶ 2 (docket no. 67); Moss Decl. at ¶ 2 (docket no. 68). The number of
16
17 institutionalized disabled individuals continued its decades-long decline even after the

18 State reduced the budget for personal care services by four percent in 2009, and

19 despite the fact that the number of individuals who are eligible for institutional care
20
has steadily increased. Lindeblad Decl. at ¶¶ 6, 11 (docket no. 159) (noting that the
21
number of individuals eligible for institutional care increased from 39,506 in FY 2008
22
23 to 44,709 in FY 2010, and is forecasted to be approximately 51,693 by FY 2013).

24 Indeed, despite the 2009 reduction, the State transitioned approximately 4,400

25 individuals from institutional care to in-home or residential care in 2010. Id. at ¶ 6.
26

ORDER - 42

1 Given that the State has a system in place that has been proven to work, and indeed has
2
been repeatedly referred to by plaintiffs in this litigation as the “gem” of the fifty
3
States, the Court sees no basis for meddling with matters that are more appropriately
4
5 left to state legislators and administrators.

6

3.

Medicaid Act Claims

7

Plaintiffs’ Medicaid Act claims, tabbed as the primary focus of this lawsuit at

8
the temporary restraining order stage of the case, have now been relegated to an
9
afterthought. Plaintiffs raise no new arguments for the Court’s consideration, instead
10

11 restating the points that the Court rejected when it denied plaintiffs’ motion for a

12 temporary restraining order. Accordingly, the Court will only briefly address the

13 merits of plaintiffs’ Medicaid Act claims.
14
a. Reasonable Standards Requirement
15
Medicaid requires that state plans have “reasonable standards . . . for
16
17 determining . . . the extent of medical assistance under the plan which . . . are

18 consistent with the objectives of [Medicaid].” 42 U.S.C. § 1396a(a)(17). Plaintiffs

19 contend that DSHS’s reduction in personal care services is unreasonable because it
20
will decrease available services below the level necessary for beneficiaries to remain
21
safely in their homes. Plaintiffs have not shown that CARE determines the actual
22
23 minimum personal care service needs of individual beneficiaries, and they have not

24 established that the hours awarded after the State’s proposed downward adjustment

25 will fail to meet any individual plaintiffs’ specific needs. Consequently, plaintiffs
26

ORDER - 43

1 have not shown a likelihood of success on the merits of their reasonable standards

2 claim.43
3
4

b. Sufficiency Requirement

5

Medicaid’s sufficiency provision requires that “[e]ach service must be

6 sufficient in amount, duration, and scope to reasonably achieve its purpose.”

7 42 C.F.R. § 440.230(b). Service levels are sufficient if they meet the purposes of the
8
specific program. Curtis v. Taylor, 625 F.2d 645, 651 (5th Cir. 1980). Whether the
9
available personal care service hours after the reduction are sufficient to meet the
10
11 program’s purposes must be examined in the context of the substantial discretion

12 States are afforded to choose the proper mix of amount, scope, and duration limitations

13 on Medicaid coverage. See Alexander, 469 U.S. at 303 (holding that Medicaid merely
14

15

16
17 43 Plaintiffs cite several cases for the proposition that a reduction in Medicaid services without consideration of the needs of individual beneficiaries is unreasonable. See Lankford v.
18 Sherman, 451 F.3d 496 (8th Cir. 2006); V.L., 669 F. Supp. 2d 1106. But those cases involved the complete elimination of programs, or the wholesale elimination of categories of eligibility.
19 For example, in Lankford, the State of Missouri passed a law that eliminated optional coverage for Medicaid recipients for durable medical equipment (“DME”). 451 F.3d at 501.
20 The Missouri agency administering Medicaid then passed emergency regulations that 21 reinstated the right of recipients to some, but not all, of the medically necessary DME devices.
Id. The Eighth Circuit held that the reinstatement of eligibility as to only a portion of the 22 DME devices was unreasonable because the regulation did not provide any mechanism for
individuals to obtain non-covered DME devices. Id. at 513. Similarly, in V.L., the State of 23 California passed a law that eliminated some beneficiaries’ eligibility for all covered services.
669 F. Supp. 2d at 1117. The law also eliminated categories of eligibility for other recipients. 24 Id. Conversely, here, none of the beneficiaries are losing eligibility for in-home personal care
services or categories of care. DSHS is merely exercising its broad discretion to modify the 25 extent of medical assistance in light of scarce resources. Beal v. Doe, 432 U.S. 438, 444 26 (1977).

ORDER - 44

1 provides a package of services that has the general aim of assuring that individuals will 2 receive necessary medical care, it does not assure “adequate health care.”).44
3
In this case, DSHS has continued to provide a substantial number of in-home
4
5 personal care service hours following implementation of the 2011 reduction. Indeed,
6 the record reflects that over 99% of the beneficiaries sampled that have joined the
7 program since January 1, 2011, have not questioned the adequacy of personal care
8
service hours allocated pursuant to CARE. 2d McNeill Decl. at ¶ 11 (docket no. 132).
9
In light of the broad discretion granted to states to craft a manageable Medicaid plan,
10
11 plaintiffs have not shown that the 2011 reduction fails to satisfy the purpose of
12 Washington’s program, namely providing disabled individuals with assistance with
13 their ADLs and IADLs. WAC 388-106-0010.
14
c. Comparability Requirement
15
Medicaid’s comparability provision requires states to provide “comparable
16
17 services when individuals have comparable needs.” 42 U.S.C. § 1396a(a)(10)(B).
18 Plaintiffs do not contend, however, that the 2011 reduction treats similarly situated
19 beneficiaries differently. See, e.g., Jenkins, 160 Wn.2d at 297 (“[C]ourts have
20
consistently . . . found that states violated the comparability requirement where some
21
recipients are treated differently from other recipients where each has the same level of
22
23 need.”). At oral argument, counsel for plaintiffs conceded that all similarly situated
24 44 Plaintiffs contend that any reliance on Alexander is misplaced because that case addressed violations of the Rehabilitation Act. Mot. at 36 n.58 (docket no. 95). The Supreme Court’s
25 discussion about the purpose of the Medicaid Act in Alexander is nonetheless guidance in this 26 Court’s consideration of whether the State’s 2011 budget will provide sufficient resources to
meet the program’s purposes.
ORDER - 45

1 beneficiaries (i.e., beneficiaries in the same acuity subgroup) are subject to the same
2
reduction in hours. Moreover, CMS regulations interpreting the comparability
3
provision appear to contemplate that state agencies “may place appropriate limits on a
4
5 service.” 42 C.F.R. § 440.230(d).45 Accordingly, plaintiffs have failed to show a

6 likelihood of success on the merits of their comparability claim.

7

d. Free Choice Requirement

8
Medicaid’s free choice provision requires that beneficiaries be “informed of the
9
feasible alternatives” to institutional care, and have individual choice. 42 U.S.C.
10

11 §§ 1396n(c)(2)(C), 1396n(d)(2)(C). Here, plaintiffs apparently contend that the State

12 did not inform them of feasible alternatives when it distributed notices of the planned

13 reductions in services in December 2010. But plaintiffs in this case are necessarily
14
already aware of alternatives to institutional care. By virtue of their receipt of personal
15
care service, either under Washington’s state plan or through one of its Medicaid
16
17 waiver programs, the plaintiffs are already participating in Washington’s alternative to

18

19 45 Specifically, the regulations provide that “[t]he agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.”
20 42 C.F.R. § 440.230(d) (emphasis added). The Court reads the regulation’s use of the words 21 “such criteria as” to mean that “medical necessity” and “utilization control procedures” are
examples, not the only grounds upon which an agency may place limitations on a service. 22 See, e.g., Health Care Financing Administration, Proposed Rules, Payment for Covered
Outpatient Drugs under Drug Rebate Agreements with Manufacturers, 60 Fed. Reg. 48442, 23 48458 (1995) (noting that prior to enactment of an amendment to Title XIX in 1990
applicable only to prescription drugs, “[s]tates could establish amount, duration, and scope 24 restrictions on Medicaid services, including prescription drugs . . . . based on such criteria as
medical necessity and utilization control, or [these restrictions]could be based on other 25 factors so long as the amount of the services provided was sufficient to ‘reasonably achieve 26 its purpose’”) (emphasis added).

ORDER - 46

1 institutional care. At oral argument, plaintiffs posited an entirely novel legal theory,
2
contending that whenever the State alters its community-based services, the State is
3
obligated to inform beneficiaries of their right to receive institutional care. Plaintiffs
4
5 cite no authority to support this proposition, which is directly contrary to the plain
6 language of the free choice provision.46 See, e.g., 42 U.S.C. § 1396n(d)(2)(C) (stating

7 that individuals must be informed of the “feasible alternatives to the provision of
8
skilled nursing facility or intermediate care facility services.”) (emphasis added); see
9
also 42 U.S.C. § 1396n(c)(2)(C). The Court rejects any such requirement, and
10
11 concludes that plaintiffs have failed to demonstrate a likelihood of success on the
12 merits for their freedom of choice claim.47

13

e. Federal Approval Requirement

14
Finally, plaintiffs contend that the 2011 reduction is a material change in the
15
State’s Medicaid plan that requires federal approval. See 42 C.F.R. § 430.12(c)(1)(ii).
16

17 As previously noted by this Court, and also by a different court in this district in

18 connection with the 2009 budget reduction, federal approval is not required because

19 Washington’s Medicaid plan does not describe a minimum number of personal care
20

21 46 The Court also notes that plaintiffs received notice of their right to receive alternative care
22 when they originally elected to receive community-based care in lieu of institutional care. See, e.g., 2d McNeill Decl. at ¶ 12 (docket no. 132).
23
47 The Court also rejects plaintiffs’ contention that the reduction in services will place 24 beneficiaries in the untenable position of either choosing to go without needed care or
submitting to unwarranted institutionalization. See, e.g., Ball v. Rodgers, 492 F.3d 1094, 25 1107 (9th Cir. 2007). As previously noted, plaintiffs have failed to meet their burden to show
26 a likelihood of irreparable harm, and as such, cannot show that the reduced services will fail to satisfy beneficiaries’ health and safety needs.

ORDER - 47

1 service hours or, for that matter, a method of calculating personal care service hours.
2
Order at 20 (docket no. 76); see also Freeman v. Wash. Dep’t of Soc. & Health Servs.,
3
2010 WL 3720285 (W.D. Wash.). As such, the planned reductions do not amend the
4
5 state plan or trigger the need for federal approval. See Freeman, 2010 WL 3720285 at

6 *9 (“Because [Washington’s] state Medicaid plan does not indicate the number of

7 hours or the methodology to be used in determining the number of hours to be
8
provided to recipients, any modification to that methodology need not be reflected in
9
an amendment to the state plan.”). Accordingly, plaintiffs have failed to show a
10
11 likelihood of success on the merits on this claim.

12

D. Balance of the Equities and the Public Interest

13

The Court is tasked with balancing plaintiffs’ claims of potential harm with the

14
State’s inability to fund the personal care services program. Plaintiffs argue that when
15
balancing the medical needs of the indigent against a State’s budgetary crisis, the
16

17 Ninth Circuit has come down firmly on the side of preserving medical benefits.

18 Independent Living Ctr. I, 572 F.3d at 659 (“State budgetary concerns cannot . . . ‘be

19 the conclusive factor in decisions regarding Medicaid.’”). However, these reductions
20
do not involve medical care. Rather, this case deals with personal care services;
21
assistance with activities of daily living performed by caregivers who have no
22
23 particular medical training.

24

In addition, the record includes evidence about the steps the State will be

25 required to take if the service reductions cannot take effect. Dreyfus Decl. at ¶ 6
26

ORDER - 48

1 (docket no. 124); Ex. 3 to 2d Work Decl. (docket no. 134). Consequently, the Court is
2
presented not merely with a question of finance, but rather, availability of funding for
3
other critical Medicaid and social service programs.48 Plaintiffs respond to the State’s
4
5 concerns by arguing that the State can deal with the current fiscal crisis by (1) raising
6 taxes; (2) closing institutions;49 or (3) simply declining to balance the budget, in

7 contravention of state law.50 None of plaintiffs’ proposals seriously addresses the

8
potential harm that will result to other needy beneficiaries if the State is forced to
9
make cuts to other social service programs.
10

11

Finally, as the Court noted in its denial of plaintiffs’ motion for a temporary

12 restraining order, DSHS has conducted a comprehensive review to determine how best

13 to accomplish the fiscal goals mandated by the governor, and it has applied its
14
expertise in weighing the competing interests of the various clients it serves. Thus,
15
even if a few of the plaintiffs ultimately require institutionalization as a result of the
16
17 48 The reductions to personal care services will save the State $19.2 million dollars over the remaining five months of the fiscal biennium. Dreyfus Decl. at ¶ 5 (docket no. 124). Thus,
18 for each month the State is enjoined from implementing the reduction in personal care service hours, the State might have to find an additional $3.8 million dollars by cutting other social
19 service programs. See id.
20 49 The Supreme Court has expressly rejected any reading of the ADA that would force states 21 to close institutions to fund community-based care. Olmstead, 527 U.S. at 604 (“The ADA is
not reasonably read to impel States to phase out institutions, placing patients in need of close 22 care at risk.”).
23 50 Plaintiffs contend that the Washington State Constitution permits the State to run a budget deficit. See WASH. CONST. art. 8, §§ 1(b), 8. But State law requires the governor to balance
24 the budget if at any time during the fiscal biennium, the governor projects a cash deficit. See RCW 43.88.110(7) (“If at any time during the fiscal period the governor projects a cash
25 deficit . . . the governor shall make across-the-board reductions in allotments . . . so as to 26 prevent a cash deficit.”) (emphasis added). To the extent plaintiffs actually contend that
violating State law is an alternative to the budget reductions, the Court rejects that contention.

ORDER - 49

1 State’s reduction in services, the Court cannot conclude that the threat to these
2
individuals outweighs the State’s interest in preserving the carefully orchestrated
3
personal care services program that currently serves more than 45,000 individuals. For
4
5 the same reasons, the Court cannot conclude that the possible threat of

6 institutionalization for a few personal care service beneficiaries outweighs the State’s

7 interest in balancing the competing needs of a host of different state-sponsored social

8
service programs that currently provide aid to a diverse group of medically and
9
financially disadvantaged state residents.
10

11

The Court concludes that the balance of the equities tips in favor of the State,

12 and as a consequence, the public interest would not be served by forcing DSHS to

13 target perhaps more vulnerable individuals or programs while the merits of plaintiffs’

14
claims in this matter are resolved.
15
CONCLUSION
16

17

For the foregoing reasons, the Court DENIES plaintiffs’ motion for a

18 preliminary injunction, docket no. 95.

19

IT IS SO ORDERED.

20
The Clerk is directed to send a copy of this Order to all counsel of record.
21
DATED this 9th day of February, 2011.
22

23

24

A

25

Thomas S. Zilly

26

United States District Judge

ORDER - 50

 
 Case 2:10-cv-02052-TSZ Document 95 Filed 01/21/11 Page 1 of 42

1

Honorable Thomas S. Zilly

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8

M.R., S.J., C.B., D.W., A.B., M.B., An.B, J.B., No. 2:10-cv-02052-TSZ

9 K.S., T.M., A.R., M.J.B., J.H., H.C., THE ARC

OF WASHINGTON, SERVICE EMPLOYEES MOTION FOR PRELIMINARY

10 INTERNATIONAL UNION HEALTHCARE INJUNCTION

775NW and PUGET SOUND ALLIANCE

11 FOR RETIRED AMERICANS,

Preliminary Injunction:

Friday, January 28, 2011

12

Plaintiffs,

ORAL ARGUMENT REQUESTED

13

v.

14 SUSAN DREYFUS, in her professional capacity as Secretary of Washington State
15 Department of Social and Health Services and WASHINGTON STATE DEPARTMENT OF
16 SOCIAL AND HEALTH SERVICES, a Department of the State of Washington,
17 Defendants.
18

19

20

21

22

23

24

25

26

27

MOTION FOR PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) -
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Case 2:10-cv-02052-TSZ Document 95 Filed 01/21/11 Page 2 of 42

1

I. INTRODUCTION

2

Plaintiffs move for a preliminary injunction that enjoins the State from implementing

3 emergency regulation WSR 11-02-041 which, effective January 1, 2011 until the Ninth Circuit’s

4 order of January 14, 2011, reduced the in-home personal care service hours provided to elderly

5 and disabled Medicaid beneficiaries by an average of ten percent. These reductions of basic and

6 essential services that enable people with disabilities to remain in their homes violate due

7 process, the integration mandate of the Americans with Disabilities Act and Rehabilitation Act

8 (collectively “ADA”), and certain key Medicaid Act provisions. Unless this Court grants an

9 injunction, individuals with disabilities will suffer irreversible health declines and loss of

10 integration into the community before this Court can decide the merits of Plaintiffs’ challenge.

11

Plaintiffs and prospective members of the Plaintiff Class (“Plaintiffs” or “beneficiaries”)

12 have severe disabilities that render them eligible for mandatory Medicaid services in nursing

13 homes or comparable institutions for individuals with developmental disabilities. They have

14 waived their right to institutional care and instead receive less costly in-home personal care

15 services such as assistance with eating, toileting, mobility, and bathing. Providing these services

16 at home rather than in institutions fulfills the State’s ADA obligations and saves the State money.

17

Without a preliminary injunction, Plaintiffs will suffer irreparable injuries from the

18 reduction of their personal care hours to levels 6-24% below that which the State authorized

19 through individualized assessments and individual care plans to meet their needs. And without

20 adequate notice and hearing protections, beneficiaries will be forced to go without adequate

21 long-term care services and won’t know their right to request additional hours through the

22 Exception to Rule (“ETR”) process or reassessment, or to obtain replacement Medicaid services.

23

II. ISSUE PRESENTED

24

Should this Court preserve the status quo by preliminarily enjoining implementation of

25 emergency regulation WSR 11-02-041, which reduces Medicaid in-home personal care services

26 by an average of ten percent, pending a final determination of the merits of this case?

27

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1

III. EVIDENCE RELIED UPON

2

Plaintiffs rely on their Amended Complaint, declarations filed in support of the TRO, and

3 the declarations accompanying this motion, all of which are listed in Appendix A.

4

IV. SUMMARY OF FACTS

5 A. Washington’s Personal Care Services Programs

6

All of the individual Plaintiffs and members of the Plaintiff Class are adult Medicaid

7 beneficiaries with severe disabilities who receive in-home personal care services through

8 programs administered by Defendants. Beneficiaries all choose to live at home and in the

9 community, often with family or friends, instead of in institutions like nursing homes or

10 community-based residential settings, where they could receive Medicaid Long Term Care 11 (LTC) services.1 Beneficiaries’ disabilities include paralysis and other physical disabilities;

12 cognitive impairments such as dementia or Alzheimer’s; chronic conditions arising out of

13 traumatic brain or spinal cord injuries, Multiple Sclerosis, Muscular Dystrophy, or Diabetes; and

14 developmental disabilities such as Downs Syndrome. Reed Decl. (Dkt. 18) ¶11.

15

Approximately 15,000 beneficiaries receive in-home personal care services under the

16 State Medicaid Plan and almost 30,000 through various Medicaid waiver programs. RCW

17 74.39A.030; Reed Decl. (Dkt. 18) ¶¶19-20. Based on individualized assessment of needs and

18 through approved plans of care to meet those needs, these programs provide personal care

19 services and assistance in basic activities of daily living (ADLs) and instrumental ADLs: eating,

20 bathing, toileting, mobility, catheter and bowel care, turning and repositioning, passive range of 21 motion, dressing, medication management, essential shopping, and housework.2

22
1 Defendants administer other Medicaid programs to provide personal care services in a range of

23 institutional settings, such as nursing homes and intermediate care facilities for developmentally disabled individuals

(ICF-MRs), as well as community-based residential settings such as Adult Family Homes, Boarding Homes, and

24 Assisted Living Facilities. See RCW 74.09.520, 74.39A.005; WAC 388-106-0015, 388-106-0030; Reed Decl. (Dkt.

18) ¶¶10, 12, 39; Black Decl. (Dkt. 19) ¶6.

25

2 See, e.g., A.H. Decl. (Dkt. 54) ¶¶6a, c-e; C.B. Decl. (Dkt. 29) ¶¶11a-c, g; D.W. Decl. (Dkt. 31) ¶¶11-12,

13d-h; Jane B. Decl. (Dkt. 33) ¶10a-d; K.S. Decl. (Dkt. 36) ¶¶8-11; Portelance Decl. (Dkt. 43) ¶3; N.N.A. Decl.

26 (Dkt. 57) ¶3; S.J. Decl. (Dkt. 27) ¶8a-e; Albott Decl. (Dkt. 37)¶¶8-10; Allington Decl. (Dkt. 52) ¶¶13a-h, j-m;

Braddock Decl. (Dkt. 28) ¶¶10, 18a-e; Chatwin Decl. (Dkt. 48) ¶¶14a-e; Davis Decl. (Dkt. 30) ¶¶16a, c, e;

27 Dockstader Decl. (Dkt. 42) ¶¶10a-k; Faatoafe Decl. (Dkt. 56) ¶¶9-10, 12a-g; Flint Decl. (Dkt. 53) ¶¶10, 12a-g;

Frederick Decl. (Dkt. 40) ¶¶11a-g; Guin Decl. (Dkt. 55) ¶¶13a-f, 17, 18 a-g; Hayes Decl. (Dkt. 47) ¶¶13d-f; Hays

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Without in-home personal care services, beneficiaries would be at serious and imminent

2 risk of institutionalization. DSHS individually assessed and certified that all 30,000 waiver

3 program beneficiaries qualify for (and without in-home services would need) nursing facility or

4 ICF-MR care; most of the State Plan program beneficiaries have such severe disabilities that

5 they, too, meet functional eligibility criteria entitling them to nursing facility care. See WAC 6 388-106-0310(4), 388-106-0510(4), 388-845-0030(2); Reed Decl. (Dkt. 18) ¶19.3

7

The purpose of these personal care programs includes “ensur[ing] that services are

8 provided in the most independent living situation consistent with individual needs” and enabling

9 individuals with disabilities to remain in their homes rather than institutions. RCW

10 74.39.005(1)-(4), 74.39A.007; WAC 388-106-0015 (“programs … are designed to help you

11 remain in the community … an alternative to nursing home care”). Washington seeks a

12 “balanced” LTC system and prioritizes less expensive in-home personal care over institutional

13 care based on consumer preferences, the integration mandate of federal law, and cost

14 effectiveness. Reed Decl. (Dkt. 18) ¶¶10-23, 33-36. In past years, Washington employed

15 strategies “focused on getting as many people as possible out of nursing homes,” succeeded in

16 reducing the nursing facility caseload from approximately 24,000 (projected) to 11,000, and now

17 spends more serving a larger in-home and community-based population with higher acuity levels

18 and personal care needs than most other states. Reed Decl. (Dkt. 18) ¶¶10, 21 & Ex. 1 (Dkt. 18-

19 1) at 5, Ex. 2 (Dkt. 18-2), Ex. 3 (Dkt. 18-3); Moss Decl. (Dkt. 68) ¶4.

20 B. Authorization of Personal Care Service Hours

21

Since approximately 2004, DSHS has utilized the centralized, automated Comprehensive

22 Assessment Reporting Evaluation (CARE) tool for all elements required to authorize LTC

23 services: to assess individual functional acuity and needs, authorize in-home personal care hours

24

25 Decl. (Dkt. 39) ¶¶15a-e, g-h; Ivonav Decl. (Dkt. 58) ¶¶13 a-e, g, j-k; Leamy Decl. (Dkt. 46) ¶4; Maxson Decl. (Dkt.
26) ¶¶6-8e, 8e-f, g-h; McIntosh Decl. (Dkt. 32) ¶¶8-9c, e; Paolino Decl. (Dkt. 45) ¶¶12, 14a, c-j, m; Partridge Decl.
26 (Dkt. 35) ¶¶5a-d, 9a-b, d-e, i; Starr Decl. (Dkt. 34) ¶¶6-7, 13-14, 20-21.
3 See, e.g., C.B. Decl. (Dkt. 29) ¶16, Allington Decl. (Dkt. 52) ¶8, Jane B. Decl. (Dkt. 33) ¶7, Chatwin
27 Decl. (Dkt. 48) ¶8, Davis Decl. (Dkt. 30) ¶10, Flint Decl. (Dkt. 53) ¶7, Frederick Decl. (Dkt. 40) ¶6, Guin Decl.
(Dkt. 55) ¶9, Hays Decl. (Dkt. 39) ¶8, Ivonav (Dkt. 58) ¶8, Maxson Decl. (Dkt. 26) ¶13, Paolino Decl. (Dkt. 45) ¶8.

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1 to meet those individually assessed needs, determine eligibility for services, and generate and

2 approve a care plan with qualified providers. Reed Decl. (Dkt. 18) ¶¶26-28, 32; Black Decl.

3 (Dkt. 19) ¶¶5-21; Moss Decl. (Dkt. 68) ¶5; WAC 388-106-0045, 388-106-0070. Prior to 2004,

4 DSHS authorized personal care hours through a more subjective individualized needs

5 assessment. Black Decl. (Dkt. 19) ¶¶6, 20-21; Moss Decl. (Dkt. 68) ¶5; Leitch Decl. (Dkt. 67)

6 ¶7. In the year DSHS transitioned to the CARE tool, the budget necessary to meet the needs of

7 the existing caseload was already forecast and set; the assessment methods and allocation of

8 resources within the caseload changed to more consistently and fairly authorize hours based

9 upon the individual CARE assessments of functional acuity, scientific prediction of client needs,

10 and assessment of individual unmet needs. Black Decl. (Dkt. 19) ¶20-21; Moss Decl. (Dkt. 68)

11 ¶5 (some recipients’ hours increased, others decreased); see also Reed Decl. Ex. 1 (Dkt. 18-1) at

12 7 (caseload forecasting process), id. Ex. 2 (Dkt. 18-2) at 5 (same); Rolf Decl ¶¶6-8, 11-13.

13

The CARE tool relies upon in-person evaluations and information from all sources to

14 determine a beneficiary’s needs; it is based upon standardized screening tools that have been

15 proven to increase the accuracy and reliability of clinical assessments. Black Decl. (Dkt. 19)

16 ¶¶7-12, 18, 20-21, 25 & Ex. 2 (Dkt. 19-2), Ex. 3 (Dkt. 19-3). This system uses the results of

17 individualized assessments of cognitive performance, clinical complexity, mood/behavior

18 symptoms, and Activities of Daily Living to classify beneficiaries into seventeen different acuity

19 and need-based categories with common characteristics predictive of common needs and

20 resource use. WAC 388-106-0085, 388-106-0125; Black Decl. (Dkt. 19) ¶18-21, 7-8; Def. Resp. 21 TRO, Ex. 5 (Dkt. 66-1) at 3, 11.4 Each category is assigned a “base assistance level in hours of

22 care” based on this formula. Jenkins v. Washington State DSHS, 157 P.3d 388, 389 (Wash.

23 2007); WAC 388-106-0125, 388-106-1230 (1). The CARE tool’s in-home algorithm then

24
4 The base hours authorizations by category are derived from statistical analysis of the relationship between
25 care time and multiple clinical variables, and time studies, that have been tested, refined, and incorporated into the
CARE Tool itself. Reed Decl. (Dkt. 18)¶29 & Ex. 1 (Dkt. 18-1) at 6; Black Decl. (Dkt. 19) ¶¶20, 21; Def. Resp.
26 TRO Ex. 5 (Dkt. 66-1) at 3 (goal of CARE tool was “to develop a resident classification system that assesses
resident care needs and resource use and bases payments on the degree of use.”); id. (“The purpose of the time study
27 was to determine resources use when specific care needs were identified.”); id. at 10-13; 4th Brenneke Decl. Ex. 4 at
23:1-11 (purpose of time study was to determine if CARE authorization would meet client needs).

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1 deducts from the base level hours to adjust for beneficiary needs that can be met through other

2 resources (such as “informal supports”) and circumstances such as when more than one

3 beneficiary resides in a household, and adds hours based on living environment considerations

4 and accessibility of laundry, shopping and wood. Jenkins, 157 P.3d at 389; WAC 388-106-0055,

5 388-106-0125, 388-106-0130; Reed Decl. (Dkt. 18) ¶30; Black Decl. (Dkt. 19) ¶¶10, 13 & Ex. 2

6 (Dkt. 19-2) at 175-176. Through these calculations, the automated CARE tool generates the

7 statutory “maximum” number of in-home personal care hours that can be used to develop a plan

8 of care. WAC 388-106-0130(8). In most cases, the CARE tool’s results are a “reliable measure

9 of actual unmet need” and the “minimum level of necessary support that takes into account all

10 the needs of the beneficiary as well as the existing level of supports the beneficiary already

11 enjoys.” Black Decl. (Dkt. 19) ¶¶26, 28.

12

Before authorization of personal care hours, however, the CARE tool results must be

13 translated into a care plan (or Individual Service Plan for the developmentally disabled) through

14 which the beneficiary has the opportunity to choose and consent to receive a certain number of

15 authorized service hours from particular, approved providers, with summaries of the tasks they

16 are to perform. In developing the plan of care, “The Department must take into account cost

17 effectiveness, client health and safety, and program limits in determining how hours can be used

18 to meet your identified needs.” WAC 388-106-0130(8) (emphasis added), 388-106-0103(9).

19 When “the amount of hours for the person’s classification group [is] not enough to address the

20 individual’s current circumstances,” case managers can use the Exception To Rule (“ETR”)

21 process to authorize personal care hours above the “maximum.” Leitch Decl. (Dkt. 67) ¶4; WAC 22 388-440-0001; see also Black Decl. Ex. 2 (Dkt. 19-2) at 175.5

23

Only after all of these steps – the CARE assessment, eligibility, consent for services and

24
5 For example, two beneficiaries are both categorized as “D Medium High,” with 240 base hours prior to
25 the 2011 cuts. For one, taking into account informal supports and the other individual characteristics, the CARE
tool generated maximum hours of 212 or 215, which were accepted and incorporated into a plan of care. Allington
26 Decl. Ex. 1 (Dkt. 52-1), Ex. 2B (Dkt. 52-3) at 2, Ex. 2C (Dkt. 52-4) at 21. In contrast, Plaintiff A.R.’s CARE
assessment generated a maximum number of 157, which was then increased by 165 hours through an ETR, to result
27 in an authorization of 323 hours. Frederick Decl. Ex. 1A (Dkt. 40-1) at 1, Ex. 2 (Dkt. 40-3), Ex. 3 (Dkt. 40-4), Ex. 4
(Dkt. 40-5). With the 2011 cuts, both will have their hours cut significantly.

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1 approval of a plan of care, with chosen qualified providers – may the Department authorize LTC

2 services. WAC 388-106-0045. Beneficiaries have the freedom to choose their preferred type of

3 long-term care services (in-home, community residential settings, or institutional settings), select

4 qualified providers, and agree to receive a certain number of authorized hours as set forth in the

5 individualized care plan in exchange for waiving their right to mandatory Medicaid services such

6 as nursing home care. WAC 388-106-0030, 388-106-0050(1)-(2), 388-106-0130(8), 388-106-

7 0140, 388-106-0300(12), 388-106-0355; Reed Decl. (Dkt. 18) ¶¶12, 35, 38-40; Black Decl. (Dkt.

8 19) ¶¶10, 14, 16-17; Brenneke Decl. Ex. 16 (Dkt. 17-6) (choice form). If beneficiaries disagree

9 with the terms of the CARE assessment and care plan, they may appeal and continue receiving

10 previously authorized services while that appeal is pending. WAC 388-106-1305; 388-458-

11 0040; Frederick Decl. Ex. 2 (Dkt. 40-3); Black Decl. (Dkt. 19) ¶¶9-10, 14-15.

12 C. Reductions of Personal Care Hours Based on Budget

13

In late September 2010, in response to an executive order mandating state agency

14 appropriations reductions of 6.287 percent, Defendants proposed to reduce Medicaid in-home

15 personal care service hours by an average of ten percent. Brenneke Decl. Ex. 1 (Dkt. 12-1) at 2.

16 This reduction was in addition to an average four percent decrease in 2009 and some additional

17 targeted reductions. Brenneke Decl. Ex. 4 (Dkt. 12-8) at 6, Ex. 5 (Dkt. 12-9) at 1; Black Decl.

18 (Dkt. 19) ¶29. Defendants’ plan for the reductions stated that, “[w]ith reduced hours, in-home

19 clients will need to choose which tasks their employees spend their time on and there may not be

20 enough time to complete all tasks”; at the higher percentage reductions needed tasks might not

21 be completed on a regular basis; clients would have longer time periods without paid care; and,

22 “[i]n some cases, a safe in-home plan of care will not be possible and clients may need to go to

23 community residential or nursing facility settings.” Brenneke Decl. Ex. 4 (Dkt. 12-8) at 6; see 24 also id., Ex. 5 (Dkt. 12-9) at 1.6

25
6 DSHS made these statements in the Agency Plan for 6.287 Percent GF-S Allotment Reduction submitted
26 by the Division of Developmental Disabilities (a division of DSHS) to the State’s Office of Financial Management
(OFM). Brenneke Decl. Ex. 4 (Dkt. 12-8) at 6-7. This Court’s order denying a TRO declined to construe the
27 Agency Plan as a judicial admission and construed it as part of “internal dialogue” within DSHS. TRO Order (Dkt.
76) at 12:17, 12:24. However, the Agency Plan should be given weight as an admission of a party-opponent, see

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1

On November 30, 2010, Defendants issued a management bulletin with the Department’s

2 plan to implement the service reductions; it directed form letters be sent to beneficiaries and

3 providers the week of December 6, 2010 that stated there were “no appeal rights for this

4 change.” Brenneke Decl. Ex. 1 (Dkt. 12-2), Ex. 1A (Dkt. 12-2), Ex. 1B (Dkt. 12-3). Defendants

5 imposed the hours cuts unilaterally and without individualized reassessments, by “amending” the

6 previously agreed upon care plans that had been generated through the individualized CARE

7 assessment process to meet beneficiaries’ needs for personal care services at home and reducing

8 the previously authorized in-home personal care hours by a set number of hours driven by budget

9 imperative and calculated according to the beneficiaries’ “base hour” category from their last

10 CARE assessment. Brenneke Decl. Ex. 1 (Dkt. 12-1) at 1-2.

11 D. Procedural Background

12

Plaintiffs filed this action on December 21, 2010, and two days later filed a motion for a

13 temporary restraining order (“TRO”) and order to show cause why a preliminary injunction

14 should not issue, along with a motion for class certification. Dkt. 1, 11, 62. On December 28

15 Defendants filed a response to Plaintiffs’ TRO motion, and Plaintiffs filed a reply the next day.

16 Dkt. 66, 69. The Court held a hearing on December 30, denied Plaintiffs’ TRO motion that same

17 day, and filed a written decision setting forth its reasoning on January 5, 2011. Dkt. 73, 76. A

18 hearing on the preliminary injunction and class certification was set for January 14.

19

On January 6, 2011, Plaintiffs filed a notice of appeal from the denial of the TRO. Dkt.

20 78. This Court stayed proceedings pending the Ninth Circuit’s disposition of that appeal. Dkt.

21 80. On January 10 Plaintiffs filed an emergency motion for an injunction pending appeal in the

22 Ninth Circuit. Following expedited briefing, the Ninth Circuit granted Plaintiffs’ motion based

23

24 Fed. R. Evid. 801(d)(2), that provides compelling evidence that some beneficiaries will be institutionalized as a
result of these cuts. The Agency Plan sets forth DSHS’s official views about the impacts these cuts will have. The
25 Agency Plan is a published document provided by DSHS to OFM and is publicly available on OFM’s website. See
http://www.ofm.wa.gov/reductions/default.asp#agency_plans (follow link to “Division of Development
26 Disabilities,” under “Social & Health Services, Department of”). The same is true for the Agency Plan for 6.287
Percent GF-S Allotment Reduction submitted by DSHS’s Long Term Care division, which states, “[i]f the reduction
27 results in an unsafe plan of care, some clients may need to go to community residential or nursing facility settings.”
Brenneke Decl. Ex. 5 (Dkt. 12-9) at 1 (available at http://www.ofm.wa.gov/reductions/300-050-DSHS-LTC.pdf).

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1 on the “irreparable injury” that already was occurring and would continue to occur:

2

Appellants’ motion for a stay prohibiting the State of Washington from implementing

emergency regulation WSR 11-02-041 is granted pending the district court ruling on

3

appellants’ motion for preliminary injunction. . . . No other relief is available that will

remedy the irreparable injury which continues to occur pending such hearing.

4

5 4th Brenneke Decl. Ex. 5 at 2. Defendants’ motion for reconsideration of that order and

6 Plaintiffs’ motion for contempt sanctions were both denied on January 20, 2011. Dkt. 92.

7

V. ARGUMENT

8

A. Plaintiffs Meet the Legal Standard for a Preliminary Injunction.

9

Plaintiffs seek a preliminary injunction that will preserve the status quo. See GoTo.Com,

10 Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (status quo ante litem is “last

11 uncontested status which preceded the pending controversy”). “A plaintiff seeking a preliminary

12 injunction must establish that he is [1] likely to succeed on the merits, [2] that he is likely to

13 suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in

14 his favor, and [4] that an injunction is in the public interest.” American Trucking Ass’ns v. City of

15 Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council 16 Inc., 129 U.S. 365, 374 (2008)).7 Where plaintiffs have made a strong showing of irreparable

17
7 The Court noted in its TRO Order that the parties had not briefed whether the associational plaintiffs have
18 standing. TRO Order (Dkt. 76) at 5 n.2. The Court need not reach this issue, however, if it concludes that any one
of the individual named plaintiffs has standing. See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights,
19 Inc., 547 U.S. 47, 53 n.2 (2006); Fleming v. Pickford, 581 F.3d 922, 924 n.3 (9th Cir. 2009) Bates v. United Parcel
Serv., 511 F.3d 974, 985 (9th Cir. 2007) (en banc). In any event, the associational plaintiffs have standing because
20 “(a) [their] members would otherwise have standing to sue in their own right; (b) the interests [they] seek[] to
protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
21 the participation of individual members in the lawsuit.” Hunt v. Washington Apple Adv. Comm’n, 432 U.S. 333, 343
(1977). Plaintiffs Arc of Washington State and Puget Sound Alliance for Retired Americans have members with
22 standing to sue in their own right as beneficiaries of personal care services who will suffer direct injuries from the
hours cuts. Elliot Decl. (Dkt. 50) ¶¶2, 10; Stern Decl. (Dkt. 51) ¶8. Plaintiff SEIU Healthcare 775NW’s members
23 have standing to sue both as providers who will lose jobs and hours of work due to the hours reductions, Glickman
Decl. (Dkt. 49) ¶¶7-8; see Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d at 1065, and
24 in some cases as direct beneficiaries, because some members serve as guardians or have power of attorney over
family members who receive personal care services and could sue on behalf of those family members, Glickman
25 Decl. (Dkt. 49) ¶8. The germaneness requirement is satisfied because the organizations’ “litigation goals [are]
pertinent to [their] special expertise and the grounds that bring [their] membership together.” Humane Soc’y of the
26 United States v. Hodel, 840 F.2d 45, 56 (D.C. Cir. 1988). See Elliot Decl. (Dkt. 50) ¶¶3, 5; Stern Decl. (Dkt. 51)
¶¶5-7; Glickman Decl. (Dkt. 49) ¶¶5, 9, 12. Finally, the participation of individual members is not necessary in suits
27 such as the present case that seek only prospective injunctive relief, rather than damages. United Food &
Commercial Workers v. Brown Group, Inc., 517 U.S. 544, 554 (1996). Moreover, the instant case is brought as a

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1 harm and that the injunction is in the public interest, a lesser showing of likelihood of success is

2 needed, and vice versa. See Humane Soc. of U.S. v. Gutierrez, 527 F.3d at 789; Golden Gate

3 Restaurant Association v. San Francisco, 512 F.3d at 1112 (9th Cir. 2008); Alliance for Wild

4 Rockies v. Cottrell, 622 F.3d 1045, 1049-53 (9th Cir. 2010). Plaintiffs meet this test and class5 wide injunctive relief is proper.8

6

B. The Reduction in Personal Care Services Will Cause Irreparable Injury.

7

1. The Reduction in Personal Care Services Will Cause Deterioration of

Health, Physical Injury, and Institutionalization.

8

9

The Ninth Circuit expressly concluded that “irreparable injury . . . continues to occur”

10 while the cuts remain in place. 4th Brenneke Decl. Ex. 5 at 2. Applying the same standard to 11 substantially the same record, this Court should reach the same result.9 Plaintiffs have and will

12 suffer imminent and irreparable injury, including deterioration of health, physical injury, and

13 institutionalization, if the hours reductions are not enjoined. Although Plaintiffs believe that this

14 Court erred in concluding otherwise when it denied Plaintiffs’ TRO motion, Plaintiffs now

15 present 26 additional declarations that describe with particularity the harm suffered as a result of 16 the reductions and address some of the concerns expressed by the Court in its TRO ruling.10

17

Initially, this Court seems to have assumed that Plaintiffs could prove irreparable injury

18 only by demonstrating “that base hours bear a direct relationship to the minimum amount of

19 personal care services required for individuals to remain safely in their homes.” TRO Order

20

class action seeking prospective injunctive relief, pursuant to Federal Rule of Civil Procedure 23(b)(2), which, by

21 definition, does not require individual involvement.
8 Although Plaintiffs have filed a motion for class certification in an abundance of caution, “[d]istrict courts

22 are empowered to grant preliminary injunctions regardless of whether the class has been certified.” Brantley v.

Maxwell-Jolly, 656 F.Supp.2d 1161, 1178 n.14 (N.D. Cal. 2009) (quotation marks omitted); accord V.L. v. Wagner,

23 669 F.Supp.2d 1106, 1114 n.6 (N.D. Cal. 2009). Indeed, this is what the Ninth Circuit did here. However, if this

Court disagrees, it should certify the classes for the reasons set forth in Plaintiffs’ Motion for Class Certification.

24

9 The Ninth Circuit applied the same standard for irreparable injury that applies to this motion for

preliminary injunction. See 4th Brenneke Decl. Ex. 5 at 1-2 (Ninth Circuit treated Plaintiffs’ appeal as “tantamount”

25 to an appeal from a denial of a preliminary injunction); Stuhlberg Int’l Sales Cov. v. John D. Brush & Co., 240 F.3d

832, 839 n.7 (9th Cir. 2001) (TRO and preliminary injunction standards are “substantially identical”).

26

10 Many of these new declarations were originally filed with the Ninth Circuit on January 14, immediately

before the hours reductions were enjoined. For that reason, they follow Ninth Circuit formatting rules and in some

27 cases respond directly to evidence introduced by Defendants in the Ninth Circuit, which may not currently be before

this Court. Given the tight time frames, Plaintiffs were unable to obtain new signatures on reformatted declarations.

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1 (Dkt. 76) at 14:17-19. Although Plaintiffs have proved that this is true, see infra at 18-23, that is

2 not the proper standard. The reduction or loss of needed medical benefits for low-income

3 disabled or elderly individuals constitutes irreparable injury justifying prospective equitable

4 relief. See Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir. 1982) (showing that enforcement of a

5 state’s Medicaid rule “may deny [plaintiffs] needed medical care” is “sufficient” to show

6 irreparable injury (emphasis added)); see also Independent Living Ctr. v. Maxwell-Jolley, 572

7 F.3d 644, 658 (9th Cir. 2009) (“needed medical care”), cert. granted on other issue, 2011 WL

8 134272 (U.S. Jan. 18, 2011); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (disability

9 benefits); V.L.,, 669 F.Supp.2d at 1121-22 (in-home care services); Mayer v. Wing, 922 F.Supp.

10 902, 905, 909 (S.D.N.Y. 1996) (same). Irreparable injury results not only from termination, but

11 also from reductions, in home care services. See V.L., 669 F.Supp.2d at 1109; Mayer, 922

12 F.Supp. at 904, 909. Any argument that the home care services at issue here do not constitute

13 “needed medical care” is belied by the fact that most beneficiaries are eligible for nursing home

14 admission, which is a mandatory Medicaid benefit, and receive home care services in lieu of the

15 nursing home placements for which they are eligible. See also RCW 74.09.520(1)(l) (personal

16 care services are “medical assistance”).

17

Plaintiffs also suggest that the Court erroneously characterized numerous witnesses’

18 evidence-based predictions of future harm as “speculation.” TRO Order (Dkt. 76) at 10:11.

19 “[S]pecific, predictive judgments” are not necessarily “speculative,” and are invariably necessary

20 when prospective relief is sought. Winter, 129 S.Ct. at 378. When seeking to enjoin an action

21 that has not yet occurred, Plaintiffs are only required to show “that irreparable injury is likely”—

22 not certain, and not immediate—in the absence of a preliminary injunction. Winter, 129 S.Ct. at

23 375 (emphasis in original); see Wright & Miller, Fed. Pract. & Proc. § 2948.1 & n. 11 (2010)

24 (“injury need not . . . be certain to occur; a strong threat of irreparable injury before trial is an

25 adequate basis”; citing cases). The Court seems to have misapplied this standard. See, e.g., TRO

26 Order (Dkt. 76) at 10:10-15 (characterizing fact-based testimony that nursing home admission

27 was “likely” as “speculation”).

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1

Plaintiffs have established the likelihood of irreparable injury through Defendants’ own

2 admissions as well as 59 declarations from former state officials, experts, service providers, and

3 beneficiaries with specific information about personal care recipients in Washington, the need

4 for the in-home personal care services beneficiaries receive, and the likely consequences of

5 reductions of those services, including serious risk of injury, illness, and/or institutionalization.

6

Beneficiaries already are suffering actual injuries of the type predicted as a result of the

7 implementation of hours cuts only two weeks ago. For example, J.P. already is experiencing

8 skin breakdown that could lead to infection and hospitalization because her provider no longer

9 has sufficient time to clean between her legs during the 1.5 (rather than two) hours she now has

10 to prepare her for bed each day. J.P. also risks other infections and sores because her catheter is

11 not being changed daily and she is not being moved enough; she must also attend medical

12 appointments without accompaniment of a provider, which is harmful in light of J.P.’s inability

13 to remember symptoms and doctor’s instructions. Anderson-Webb Decl. ¶¶17b, 25a-c.

14

Plaintiff K.S. is suffering adverse impact to her mental health, and because she cannot

15 remove her compression stockings all weekend when she is without a provider, is experiencing

16 sores on her legs that may develop into cellulitis requiring hospitalization. 2nd K.S. Decl. ¶4.

17 Plaintiffs J.B., A.B., An.B. and M.B. no longer receive daily baths, risking rashes, skin problems

18 and worse due to incontinence. 2nd Jane B. Decl. ¶¶5-7. Their mother can no longer run

19 necessary errands without bringing them along, which makes it impossible at times to buy

20 groceries or fill prescriptions because M.B.’s Oppositional Defiant Disorder causes him to be 21 uncontrollable and erratic in public. Id. ¶¶5-7.11 A.R.’s weekend provider refused to work a

22

23

11 This is additional evidence that supplements the declarations originally presented to the Court with

respect to these Plaintiffs. The original evidence showed that the reduction of 67 collective hours of care for four

24 sibling Plaintiffs with physical and cognitive disabilities, whose adoptive mother’s physical disability limits her

ability to provide much of the care they need, would present a significant risk of institutionalization. This Court

25 criticized one declarant for failing to “quantify” the absolute minimum number of hours needed and “offer[ing] no

concrete sense of immediacy,” TRO Order (Dkt. 76) at 10:12-16, 11:1-2, but apparently failed to note two other

26 declarations that explain very specifically the gaps in care that will result, needs that will go unmet, and reasons for

concern about institutionalization. Jane B. Decl. (Dkt. 33) ¶¶10, 23a-c (reduced hours will likely cause skin

27 breakdowns and behavioral issues presenting institutionalization risk); Partridge Decl. (Dkt. 35) ¶¶5-6, 9, 12-13, 25,

27 (services that will not be performed and health problems that will result). See also Starr Decl. (Dkt. 34) ¶¶6-27.

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1 short shift on Sundays; therefore, A.R. had to stay in bed for the entire day, placing her at risk for

2 bed sores, because her 84-year-old mother is unable to get her out of bed. 2nd Frederick Decl.

3 ¶¶5-6. See also 2nd Bowman Decl. ¶7, 9 (health has deteriorated due to reduced provider hours,

4 and increased stress because provider will likely quit for job with more hours).

5

Other beneficiaries already have been institutionalized or are at immediate risk of

6 institutionalization because, as a result of the hours reductions, their care plans now are unsafe or

7 their providers must seek additional employment and cannot continue to provide uncompensated

8 hours of personal care service. For example, 92-year-old H.C. had Alzheimer’s, heart disease,

9 and osteoarthritis that made him susceptible to falling. In a declaration presented to the Court in

10 December, H.C.’s provider explained that reduction of H.C.’s hours from 116 to 100 would be

11 insufficient to assist with meal preparation, toileting and incontinence care, mobility, bathing,

12 oxygen and medication management, and predicted that H.C. would likely enter a nursing home

13 within a matter of months. Chatwin Decl. (Dkt. 48) ¶¶2, 5-6, 11-14, 20-21. In an updated

14 declaration filed with the Ninth Circuit on January 14, H.C.’s son explained that he “cannot care

15 for H.C. on the hours DSHS allotted for 2011” and “the arbitrary cuts to H.C.’s home care

16 services have made keeping him at home impossible.” 2nd Chatwin Decl. ¶12. He explained

17 that as a result of the hours reductions, H.C. would be moving into an institutional care facility 18 within the month, as soon as all paperwork was completed. Id. ¶¶8, 12.12 Similarly, Plaintiff

19 M.J.B.’s provider inquired about openings at a nursing home after learning of the reductions, and

20 planned to commit her as soon as there was an opening because she could not continue to 21 provide the amount of care needed by M.J.B. on the reduced hours. 2nd Paolino Decl. ¶¶5-6.13

22 The Franklin Hills Health and Rehabilitation Center has admitted two clients to its long term 23 care facilities this month as a result of the hours reductions. Wujick Decl. ¶¶4-6.14 Other

24
12 Counsel has since learned that H.C. passed away on Saturday, January 15, 2011, before the move to a
25 nursing home could be accomplished. 4th Brenneke Decl. ¶3.
13 M.J.B. has just been notified that she will receive additional personal care hours through an ETR, an
26 exception to the hours cut policy, and through that exception she will be able to remain safely at home.
14 Both men have paraplegia and had lived independently at home prior to the hours reductions. Id. As a
27 result of the hours reductions, they were left at home for longer periods of time; one developed bed sores because he
was not turned enough and the other lay in bed without being cleaned after wetting himself. Id. Both are intact

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1 beneficiaries are likely to move to nursing homes or group residential settings because the 2 reduced hours will not provide for their needs.15 Former state officials and experts find that the

3 magnitude of these cuts to below assessed need puts beneficiaries at risk of institutionalization.

4 See Black Decl. (Dkt. 19) ¶¶33-34, Reed Decl. (Dkt. 18) ¶¶46-47, LaPlante Decl.(Dkt. 22) ¶¶21-

5 22, J ¶¶12-13, Dapper Decl. (Dkt. 20) ¶17.

6

This Court apparently discounted much of the evidence concerning actual or imminent

7 institutionalization based on its finding that the decision to move a beneficiary into a nursing

8 home is often bound up with the beneficiary and/or provider’s financial or living situation. TRO

9 Order (Dkt. 76) at 11:4-24. But this fails to take into account that the care plans that were

10 unilaterally “amended” by DSHS to implement these hours cuts specifically rely upon factors

11 related to the beneficiary and provider’s financial and living situations, and providers’ agreement

12 to provide certain numbers of hours toward delineated care tasks (and beneficiaries’ agreement

13 to waive nursing home care) were based on those circumstances. As such, it is foreseeable that

14 the unilateral “amendment” of the care plans would disrupt the balanced and considered

15 agreements between providers and beneficiaries, most of whom were already are on the edge and

16 making due by meeting only the minimal needs of the beneficiaries, and result in some

17
mentally and are very depressed about having to give up their independence, but the nursing home cannot discharge
18 them because the hours reductions have made it unsafe for them to remain at home. Id.
15 For example, Plaintiff S.J. has muscular dystrophy, cannot move independently, and is totally dependent
19 on her provider for all activities, including eating, toileting, transfers, and mobility. S.J. Decl. (Dkt. 27) ¶8.
Although Plaintiff S.J.’s live-in provider has agreed to stay on temporarily on an emergency basis and provide the
20 free care necessitated by the hours reduction in the short term so that no harm comes to S.J., he does not intend to
and cannot provide this free care indefinitely. 2nd Braddock Decl. ¶¶ 4-5, 20. S.J. and her provider contacted a
21 home care agency to find a replacement provider, but the agency refused the job because the care plan as written is
unsafe and allocates inadequate personal care hours to meet S.J.’s needs and enable her to stay safely at home. 2nd
22 Braddock Decl. ¶¶18-19; 2nd S.J. Decl. ¶9. Similarly, Plaintiff J.H. has already been institutionalized because his
provider was unable to meet the financial burden of providing the excess hours of uncompensated care that would
23 have been required for J.H.’s safety under the newly reduced hours allocation. Hayes Decl. (Dkt. 47) ¶8. Although
the State intimated that there were other disagreements between Plaintiff J.H. and his provider, (12/30/10 TRO Tr.
24 29:4-18), this disagreement was precipitated by the hours reduction and the provider’s decision that she could no
longer provide this free care. 2nd Hayes Decl. ¶5, 11-12; Johnson Decl.. Similarly, the live-in provider for M.A.B,
25 who suffers from multiple mental illnesses, is seeking to place him into an institution because she cannot afford to
continue to provide the ever-increasing hours of free care that M.A.B. needs in light of the January 2011 hours
26 reductions. Josephsen Decl. ¶¶6-7, 12-15, 18-20. See also D.W. Decl. (Dkt. 31) ¶¶22b, 25; C.B. Decl. (Dkt. 29)
¶35; K.S. Decl. (Dkt. 36) ¶¶17, 21; Albott Decl. (Dkt. 37) ¶13; Jane B. Decl. (Dkt. 33) 9:26-10:4; Davis Decl. (Dkt.
27 30) ¶¶31-32, 36; Dockstader Decl. (Dkt. 42) ¶19; Faatoafe Decl. (Dkt. 56) ¶24; Frederick Decl. (Dkt. 40) ¶¶22-24;
McIntosh Decl. (Dkt. 32) ¶20-21; Morrow Decl. (Dkt. 38) ¶6.

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1 providers’ inability or unwillingness to provide even more charity care to fill the gap caused by

2 the hours cuts. In each and every case presented, the hours cut proximately caused the likely

3 negative results of institutionalization and irreparable injury. For many years, the State has

4 laudably allowed seriously disabled individuals to live in their own homes rather than institutions

5 (saving the State substantial sums) by paying for just enough personal care hours that providers

6 could also afford to offer many hours of uncompensated care, including 24/7 supervision needed

7 by many beneficiaries. These last hours reductions have made that impossible for individual and 8 agency providers alike. See, e.g., Walsh Decl. ¶¶14-15, 17.16

9

Serious and irreparable harm will befall beneficiaries if the hours reductions are not

10 enjoined. The hours reductions mean that beneficiaries will receive fewer essential services,17

11 receive assistance less frequently,18 and be left unattended for longer stretches of time.19

12

The reductions of services necessary to eat, toilet, move, bathe, dress and take medication

13 likely will lead to injury, illness, health decline, and institutionalization in beneficiaries already

14 found eligible for round-the-clock nursing home care. For example, a former case manager for

15 Seattle’s Aging and Disability Services who currently directs an agency that supplies providers

16 to multiple clients predicted that the reductions “will result in hundreds or thousands of cases of

17 . . . hospitalizations, as well as increases in preventable injury and death.” Walsh Decl. (Dkt. 25)

18 ¶12. Mr. Walsh specifically determined that, at his agency, “approximately 5% of our clients

19 will likely have immediate, serious, adverse outcomes such as hospitalization, emergency room

20
16 See also Maxson Decl. (Dkt. 26) ¶¶5, 11, 22-26; S.J. Decl. (Dkt. 27) ¶¶24-26, 29; Braddock Decl. (Dkt.

21 28) ¶¶9,27,30,32; D.W. Decl. (Dkt. 31) ¶21; Hays Decl. (Dkt. 39) ¶¶5-6, 29; Paolino Decl. (Dkt.45) ¶¶14, 24; 2nd

Paolino Decl. ¶¶6-7; Hayes Decl. (Dkt. 47) ¶¶4, 7-8; Allington Decl. (Dkt. 52) ¶¶16-18; Flint Decl. (Dkt. 53) ¶¶12,

22 16-17; A.H. Decl. (Dkt. 54) ¶12; Guin Decl. (Dkt. 55) ¶¶27-33; Ivonav Decl. (Dkt. 58) ¶¶6, 15, 23-26; 2nd Chatwin

Decl. ¶¶8-10, 12.

23

17 C.B. Decl. (Dkt. 29) ¶26; D.W. Decl. (Dkt. 31) ¶22; Jane B. Decl. (Dkt. 33) ¶24; K.S. Decl. (Dkt. 36)

¶15; ¶18, Dockstader Decl. (Dkt. 42) ¶15; McIntosh Decl. (Dkt. 32) ¶16; Morrow Decl. (Dkt. 38) ¶6; Partridge Decl.

24 (Dkt. 35) ¶13; Starr Decl. (Dkt. 34) ¶¶25, 26.
18 A.H. Decl. (Dkt. 54) ¶12; C.B. Decl. (Dkt. 29) ¶26; Ivonav Decl. (Dkt. 58) ¶24; D.W. Decl. (Dkt. 31)

25 ¶22b; K.S. Decl. (Dkt. 36) ¶15; N.N.A. (Dkt. 57) ¶6; Albott Decl. (Dkt. 37) ¶¶12-13; Davis Decl. (Dkt. 30) ¶26;

Frederick Decl. (Dkt. 40) ¶18; Flint Decl. (Dkt. 53) ¶¶16-17; Guin Decl.(Dkt. 55) ¶29; Hays Decl. (Dkt. 39) ¶25;

26 McIntosh Decl. (Dkt. 32) ¶16; Morrow Decl. (Dkt. 38) ¶6.
19 K.S. Decl. (Dkt. 36) ¶15; A.H. Decl. (Dkt. 54) ¶12; C.B. Decl. (Dkt. 29) ¶23; D.V.S. Decl. (Dkt. 59) ¶16;

27 D.W. Decl. (Dkt. 31) ¶22b; N.N.A. (Dkt. 57) ¶6; Davis Decl. (Dkt. 30) ¶26; Flint (Dkt. 53) ¶16; Guin Decl.(Dkt. 55)

¶29; Ivonav Decl. (Dkt. 58) ¶24; McIntosh Decl. (Dkt. 32) ¶16; Starr Decl. (Dkt. 34) ¶24.

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1 visits, and imminent institutionalization.” Walsh Decl. (Dkt. 25) ¶13 (emphasis added).

2 Plaintiffs respectfully suggest that this Court failed to appreciate the significance of this

3 testimony, or of Mr. Walsh’s statement that other clients face “several months of slow decline

4 rather than requiring immediate hospitalization or institutionalization.” TRO Order (Dkt. 76) at

5 10:18-11:2 (emphasis in original). This “slow decline” of health – which may well be

6 irreversible – is itself an imminent and irreparable injury, even if hospitalization or 7 institutionalization may not occur for several months.20 See also Pritchard Decl. ¶7 (former

8 director of agency; personal care hours already insufficient to meet many clients’ minimum

9 needs and “reduction of even 30 minutes a day for individuals who already have just barely

10 enough services to meet their minimal needs will make a major difference”; caregivers “will now

11 be unable to finish cooking, obtain needed medications or supervise client self administration of

12 medications, [or] give clients needed baths”). Uncontroverted expert evidence establishes that

13 unmet needs in activities of daily living “cannot be tolerated for long” and have “immediate and

14 serious consequences” such as injury, deterioration of health, and even death. Gardner Decl.

15 (Dkt 21) ¶¶11-18; LaPlante Decl. (Dkt. 22) ¶¶7, 10.

16

Beneficiaries and their providers described the likely results of the reductions in great

17 detail: without adequate toileting help or incontinence care, beneficiaries risk skin tearing, 18 infections and bowel obstructions;21 missing necessary medication or taking improper doses;22 19 choking or going hungry without sufficient assistance eating;23 and being unable to maintain the

20

21

20 Similarly, former DSHS officials and experts familiar with Washington’s in-home care system predict

that the reductions will place beneficiaries “at immediate risk of serious health deterioration and even death,” Reed

22 Decl. (Dkt. 18) ¶44, and cause “many” beneficiaries to “experience immediate and substantial harm” including

“more medical emergencies and hospitalizations,” which will cause “serious and irreparable harm to their physical

23 and mental health condition,” Black Decl. (Dkt. 19) ¶33, because the specific cuts at issue here reduce services to a

level below that required for beneficiaries “to live safely and healthily,” LaPlante Decl. (Dkt. 22) ¶22.

24

21 Flint (Dkt. 53) ¶16 (going to the bathroom without assistance will lead to sitting in “her own mess” and

potentially “another bladder infection” at which point they may have to remove her kidney), Guin Decl.(Dkt. 55)

25 ¶30 (not changing pull-ups regularly will cause infections.), Leamy Decl. (Dkt. 46) ¶4 (improper incontinence care

can lead to skin infections), A.H. Decl. (Dkt. 54) ¶12; Partridge Decl.(Dkt. 35) ¶13a.

26

22 McIntosh Decl. (Dkt. 32) ¶16d; D.V.S. Decl. (Dkt. 59) ¶¶7d, 16b; D.W. Decl. (Dkt. 31) ¶¶22a, 22c;

N.N.A. (Dkt. 57) ¶6; Guin Decl.(Dkt. 55) ¶31; Partridge Decl.(Dkt. 35) ¶13d.

27

23 D.W. Decl. (Dkt. 31) ¶13f; S.J. Decl. (Dkt. 27) ¶8e; Braddock Decl. (Dkt. 28) ¶18b; Jane B. Decl. (Dkt.

33) ¶24a; Dockstader Decl. (Dkt. 42) ¶10b; McIntosh Decl. (Dkt. 32) ¶9c.

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1 special diets required to avoid exacerbating their medical conditions.24 Those with mobility

2 impairments (who will be left alone for longer periods of time) risk falling when unattended, 3 which can lead to serious injuries, hospitalization, and rapid deterioration.25 Those who cannot 4 be physically turned as often as needed will suffer bed sores and muscle problems.26

5

Defendants cannot dispute that beneficiaries who already were granted increased hours

6 due to an Exception To Rules (“ETR”) will suffer irreparable harm as a result of the cuts. The

7 Department has already determined that they could not live safely at home with the base hours

8 they were originally allotted and granted additional hours “based on the clinical characteristics

9 and specific care needs of the participant.” Brenneke Decl. Ex. 7 (Dkt. 13-3) at 113; Leitch Decl.

10 (Dkt. 67) ¶4. Now the base hours are being cut, reducing the total allocation. Brenneke Decl.

11 Exs. 1A-1D (Dkts. 12-2 to 12-5). The new hours authorizations will be below their ETR-

12 assessed minimum need. For example, the Department previously granted an Exception-to-Rule

13 (“ETR”) to Plaintiff A.R., finding that she needed 323 hours, rather than 157 hours, to live safely

14 at home. Frederick Decl. Exs. 2, 3 (Dkts. 40-3, 40-4). But now that bare minimum allotment

15 has been reduced by 14, to 309. Id. Ex. 4 (Dkt. 40-5). Although another ETR request for A.R. is

16 in process, she is currently suffering from the hours reductions. 2nd Frederick Decl. ¶¶5-9.

17

This Court’s original finding that no irreparable harm is likely to result from the hours

18 reductions was based heavily on Defendants’ assurances that they would use the ETR process to

19 ensure that beneficiaries who really did need additional hours to live safely at home would

20 receive those hours. TRO Order (Dkt. 76) at 13:1-22. But beneficiaries were never notified that

21 they could request additional hours through the ETR process, have no right to do so, and have no

22 current fair hearing right to contest a denial of such hours under Washington law. See infra at

23

24

24 C.B. Decl. (Dkt. 29) ¶26a; Davis Decl. (Dkt. 30) ¶26a; Guin Decl.(Dkt. 55) ¶30.

25 E.g., Leamy Decl. (Dkt. 46) ¶5 (“I have often seen this situation before: when elderly people are left

25 alone, they fall, break a bone, catch pneumonia and die.”); K.S. Decl. (Dkt. 36) ¶15; McIntosh Decl. (Dkt. 32)

¶¶16a-b; A.H. Decl. (Dkt. 54) ¶11; D.V.S. Decl. (Dkt. 59) ¶¶16a; N.N.A. (Dkt. 57) ¶6; Chatwin Decl. (Dkt. 48)

26 ¶¶14d, 23; Davis Decl. (Dkt. 30) ¶26a; Guin Decl.(Dkt. 55) ¶¶30-31; Ivonav Decl. (Dkt. 58) ¶24; S.J. Decl. (Dkt.

27)¶8c; Maxson Decl. (Dkt. 26) ¶¶8g, 26; Portelance Decl. (Dkt. 43) ¶6.

27

26 Portelance Decl. (Dkt. 43) ¶5; Jane B. Decl. (Dkt. 33) ¶23a; Faatoafe Decl. (Dkt. 56) ¶17-21; Maxson

Decl. (Dkt. 26) ¶26.

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1 25-26 & nn.43-44. As such, the ETR process cannot be relied upon to prevent this irreparable

2 harm. Even in cases of imminent placement in an adult family home or nursing home, 3 Defendants neither invoked the ETR process nor notified Plaintiffs of the possibility.27 And

4 when providers or beneficiaries learned of the ETR process through counsel in this case and

5 requested an ETR, some case managers refused to initiate the ETR process, many stating that 6 ETRs are not available with respect to the challenged hours reductions.28 One of the named

7 Plaintiffs previously requested and now has been granted an ETR, but this followed notice of her

8 involvement in the case. See 2nd Paolino Decl. ¶4.

9

This Court also determined the 2011 reductions would not cause irreparable harm based

10 on a finding that the 2009 reductions did not cause such harm. TRO Order (Dkt. 76) at 13:24-

11 14:10. However, the 2009 reductions were much smaller than those at issue here, and were

12 partially restored in 2010. See Emergency Regulations WSR 09-14-046, 10-14-055 (amending

13 WAC 388-106-0125) (found at http://www.dshs.wa.gov/msa/rpau/recentlyadoptedrules.html).

14 Plus, the effects are cumulative. For example, the E High classification lost 4 base hours in 2009

15 and will lose 23 more in 2011, while C Medium lost 8 base hours in 2009 and will lose 18 more

16 in 2011. See id. Individual declarations bear out this difference in scale and the cumulative

17 effect. Compare, e.g., S.J. Decl. (Dkt. 27) ¶21 (S.J. lost 6 hours in 2009), with id. ¶17 (lost 18 another 17 hours in 2011).29 In the Freeman case, a Department official filed a declaration

19 noting that in 2009 the state legislature considered but rejected higher reductions, because four

20 percent “was thought to [be] small enough to allow in-home care recipients to continue to live in 21 their own homes while maintaining their health and safety.” 3rd Brenneke Decl. Ex. 4 ¶12.30

22

23

27 2nd K.S. Decl. ¶3; 2nd Paolino Decl. ¶4; 2nd Maxson Decl. ¶17; Ages Decl. ¶4; 2nd Allington Decl. ¶4;

Bergstrom Decl. ¶8; 2nd Guin Decl. ¶4; Anderson-Webb Decl. ¶29; Hayes Decl. (Dkt. 47) ¶8, Maxson Decl. (Dkt.

24 26) ¶11, S.J. (Dkt. 27) ¶25, Braddock (Dkt. 28) ¶27.
28 2nd Flint Decl. ¶4; 2nd Allington Decl. ¶4; Perkins Decl. ¶8; 2nd Bowman Decl. ¶3-5; cf. Ages Decl. ¶4;

25 2nd Guin Decl. ¶8, Bergstrom Decl. ¶¶6-8.
29 See also Frederick Decl. (Dkt. 40) ¶16 (A.R. lost 3 hours in 2009, 1 of which was restored), with id. ¶15

26 (lost another 14 hours in 2011); Faatoafe Decl. (Dkt. 56) ¶7 (Z.J. lost 8 hours in 2009), with id. (lost another 26

hours in 2011); Braddock Decl. (Dkt. 28) ¶¶8,25; Dockstader (Dkt. 42) ¶6, Allington Decl. (Dkt. 52) ¶6

27

30 Freeman is also distinguishable because there the plaintiffs all made clear that their providers would

continue to provide the same levels of care; no allegation that the individual beneficiary plaintiffs would be harmed

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1 The impact of that much smaller cut can shed little light on what is likely to occur in 2011. 2nd

2 LaPlante Decl. ¶8 (“In my professional opinion, the difference in the magnitude of these cuts,

3 and the fact that the 2011 cuts will be in addition to the 2009 cuts, would make any . . .

4 conclusion [that experience with the 2009 cuts show that the 2011 cuts will cause no harm]

5 speculative.”) Nor is there any evidence that Defendants tracked the effects of the 2009

6 reduction upon individuals. In contrast, evidence of the cumulative effect of the 2009 and 2011

7 cuts demonstrates that beneficiaries are at serious risk of health decline and institutionalization.

8

2. Current Levels of Personal Care Services Authorizations Are Needed

By Beneficiaries.

9

The Washington Supreme Court has characterized the CARE tool as “assess[ing]”

10

individual recipients “to require and receive a certain number of care hours.” Jenkins, 157 P.3d

11

at 393 (emphasis added); see also id. at 393 (invalidating across-the-board reduction for

12

beneficiaries who lived with caregivers because “DSHS decided on individualized

13

determinations of public assistance benefits” but then “refus[ed] to consider the[ir] individual

14

needs”); ibid. (“DSHS may use the CARE assessment program to initially classify, rate, and

15

determine a recipient’s level of need”); ibid. (recipients are “assessed an amount needed for meal

16

preparation, housekeeping, and shopping”); id. at 391 (“initial assessment of each recipient’s

17

hours of need”) (emphasis added in all cases). This Court’s previous conclusion that the State’s

18

CARE tool “assesses only relative need for personal care services,” and that base hours

19

“correlate with legislative appropriations, as opposed to individual need,” TRO Order (Dkt. 76)

20

at 8:10-15 (emphasis added), conflicts with that authoritative construction of Washington law,

21 which Plaintiffs apologize for not pointing out to this Court in the TRO briefing.31

22

The State’s Medicaid Plan and waivers also make clear that the CARE tool authorizes

23

hours based on need. The State Plan provides that a beneficiary’s individualized care plan

24

“[i]dentifies the State plan HCBS [home and community based care] necessary for the

25

26
or face institutionalization due to a reduction in services was either made or rejected. Work Decl. Ex. 2 at 19:15-24
27 (Freeman v. DSHS, No.C09-5616 RJB (Trial Order) (W.D. Wash. Sep. 17, 2010)).
31 Freeman did not address whether the CARE system authorizes hours based on individual need.

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1 individual, and furnishes . . . all HCBS which the individual needs.” Brenneke Decl. Ex. 6 Part 1

2 (Dkt. 13-1) Supp. 4 to Att. 3-1A at 11 (emphasis added). State waivers describe the hours

3 authorization process similarly. See, e.g., id. Ex. 7 (Dkt. 13-3) at 3 (individual assessment and

4 plan of care “tailored to [each applicant’s] individual needs”); id. Ex. 7 Part 1 (Dkt. 13-3) at 112

5 (CARE system identifies needs and develops care plan under process that ensures “the plan

6 meets [beneficiaries’] needs”); id. Ex. 9 Part 3 (Dkt. 14-3) Appendix D at 5, 7 (assessment tool

7 identifies and measures needs). And a DSHS settlement and order notes that an ISP “is the same

8 as ‘Plan of Care’ and means the written document which DDD uses to document the health and

9 welfare needs identified in the comprehensive needs assessment and to identify the services 10 intended to meet those needs.” 4th Brenneke Decl. Ex. 8 at 2, 3.32 See also WAC 388-828-

11 1020.

12

The declarations of Penny Black and Charles Reed further demonstrate that the CARE

13 system authorizes the hours needed to permit each individual to remain safely at home, based on

14 scientific time studies that connect tasks with hours of service and resource allocation

15 algorithms. Reed Decl. (Dkt 18) ¶¶29-30, 46; Black Decl. (Dkt. 19) ¶¶14, 26, 28; see also 4th

16 Brenneke Decl. Ex. 4 at 23:1-11; Rolf Decl. ¶¶8-13. It is not the case that these experts were

17 discussing something “outside” the current CARE system, TRO Order (Dkt. 76) at 9:5-19,

18 simply because the regulations characterize the initial base hours authorization as a “maximum” 19 that may be reduced when there are other mechanisms for meeting beneficiaries’ needs.33

20
32 Federal law requires that state Medicaid plans “provide such methods and procedures relating to the
21 utilization of, and the payment for, care and services available under the plan … as may be necessary to safeguard
against unnecessary utilization of such care and services . . . .” 42 U.S.C. §1396a(a)(30)(A). For cases discussing
22 this provision, see, e.g., Prestera Center For Mental Health Services, Inc. v. Lawton, 111 F.Supp.2d 768, 776
(S.D.W.Va. 2000) (discussing legislative history); Allen v. Mansour, 681 F.Supp. 1232, 1239 (E.D.Mich. 1986)
23 (same). Thus, if the State had been authorizing more hours than beneficiaries need, it might have been in violation
of this assurance. See also 42 U.S.C. §1396a(a)(33)(A) (requiring states to ensure appropriateness of care and
24 services); id., §1396a(a)(37) (requiring review of claims); 42 C.F.R. §§ 456.22 (requiring procedures for ongoing
evaluation of need for and quality and timeliness of services); id., §456.23 (similar). See also Ex. 3rd Brenneke
25 Decl. Ex. 5 at 9, 23, 33 (CMS instructed State prior to CARE system implementation that it could not limit waiver
services based on available funding, and that “laws and policies should be implemented recognizing the need to
26 fully fund the waiver services CAP participants are assessed to need.”).
33 The statements in the declaration filed by Penny Black in the instant case that the hours ultimately
27 authorized by the CARE system are only those minimally necessary do not conflict with her earlier declaration that
the “classification results in a baseline determination of the number of hours of in-home care [DSHS] may be able to

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1

Defendants’ argument that the CARE system authorizes hours based on available budget

2 resources is also undermined by the fact that, as this Court found, the base hours allocations for

3 acuity categories have remained consistent, other than the addition of three classifications that

4 more accurately measured acuity or need, until budget-based reductions in 2009 and 2011. TRO

5 Order (Dkt. 76) at 7:17-19; 3rd Brenneke Decl. Ex. 1; Rolf Decl. ¶¶14-17, 20-24; Logan-von

6 Wahlde Decl. ¶6; compare also 2nd Brenneke Decl. Ex. C (Dkt. 70-3), with Brenneke Decl. Ex.

7 1 (Dkt. 12-1) at 1-2. If Defendants’ characterization were correct, then base hours should have 8 changed each budget year, increasing or decreasing based on the available budgetary resources.34

9

In fact, in defending the CARE system against other challenges, Defendants themselves

10 have characterized it as evaluating individual “need.” See, e.g., 3rd Brenneke Decl. Ex. 3 at 22-

11 23 (“In contrast [to physicians], the Department regularly assesses the need for personal care

12 services . . . , and it does so using a sophisticated assessment instrument.”); id. at 24 (“[T]he

13 Department spent extensive time . . . reviewing Samantha’s specific care needs related to 19

14 ADLs and IADLs . . .” and a physician’s recommendation need not “alter[] the Department’s far

15 more thorough assessment of Samantha’s needs.”) (emphasis added each time); see also id. Ex. 2

16 at 14 (State’s Olmstead plan; annual assessments “identify the needs of clients”); 4th Brenneke

17 Decl. Ex. 9 at 18 (reporting that DSHS staff including Defendants’ declarants “stated[] the rates

18

fund.” TRO Order (Dkt. 76) at 9 n. 4. The next sentence in Ms. Black’s prior declaration explains, “Application of

19 the shared living rule is one of several reductions that may be applied to the baseline determination of hours.” Work

Decl. Ex. 1 (Dkt. 71) Black Decl. ¶10. Thus, her statement is consistent with the way the CARE tool works and her

20 subsequent declarations: the Department only funds the unmet needs following adjustments within the CARE tool

itself, and so the Department may fund fewer hours than the base if reductions for informal supports or other factors

21 related to need are appropriate. The other reason why it is appropriate to characterize the system as authorizing

“maximum” hours is because beneficiaries are not required to utilize all of the hours that are authorized.

22

34 While Defendants have argued that average hours have increased over time, Plaintiffs showed that was

attributable to increased acuity and the invalidation of an unlawful services reduction, not changes in base hours.

23 2nd Brenneke Decl. Ex. B (Dkt. 70-2) at 7; 2nd LaPlante Decl. ¶¶5-7; Jenkins, 157 P.3d at 392. Increasing acuity

means that people who in the past would have received long-term care services in nursing homes are instead now

24 receiving those services at home. In fact, Defendants’ own evidence shows that between 2004 and 2007 acuity

increased at a higher rate than average hours. Compare 2nd Brenneke Decl. Ex. B (Dkt. 70-2) at 7 (showing 8.7%

25 increase in ADLs between 2004 and 2007), with Def. Resp. TRO Ex. 12 (Dkt. 66-2) (showing 6.9% increase in

average hours during same time period). Moreover, because authorization of hours prior to 2004 was based on

26 individual needs assessments, it is of no moment that the adoption of the CARE system was supposed to be budget

neutral. The State moved from a more subjective system to a more objective system; some individuals (who had

27 been assessed to need too few hours) received more hours as a result, and some (who had been awarded too many

hours) had their hours reduced.

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1 are based on specific personal care needs”); Logan-von Wahlde Decl. ¶4. In contrast to

2 Defendants’ characterization, the Department’s own description of the purposes of the time study

3 demonstrates that the CARE system seeks to measure individual needs. See 4th Brenneke Decl.

4 Ex. 4 at 23:1-11 (Deposition testimony of Bea-Alise Rector; purpose of time study was to

5 determine whether “the classification groups make clinical sense; do the base hours make

6 clinical sense based on the case manager’s knowledge of trying to meet a client’s needs in the in-

7 home setting; . . . did the overall calculation [including reductions for informal supports], was it

8 enough, too much, not enough to meet the client’s needs at the end of that process”); Logan-von

9 Wahlde Decl. Ex. 3 at 3 (Department’s time study; “The purpose of the time study was to

10 determine resources use when specific care needs were identified.”); id. (“The goal is to develop

11 a resident classification system that assesses resident care needs and resource use and bases

12 payments on the degree of use.”); id. Ex. 5 (Department publication; “CARE will be more

13 comprehensive and more objective [than prior system] in measuring client’s care needs. . . .

14 CARE includes a new client-focused payment system that: Better reflects time and resources

15 needed to provide care; Considers and accounts for unscheduled task hours, cognitive needs, and

16 informal support system; and Improves the reliability and consistency of the assessment.”).

17

The Department similarly describes the CARE tool as seeking to assess unmet

18 individualized needs in the CARE Assessor’s Manual and in documentation regarding CARE

19 eligibility and rates. See Black Decl. Ex. 2 (Dkt. 19-2) at 8 (“The CARE tool assists assessors to

20 gather definitive information on a client’s . . . needs, which must be addressed in an

21 individualized care plan.”); see also id., Ex. 1 at 2 (Department rulemaking statement; “Case

22 managers individually assess each client related to assistance needed as well as any informal 23 supports available”).35

24
35 See also id. Ex. 2 at 173 (“[T]he hours for in-home care generated by CARE will determine the
25 maximum payment to meet the client’s care plan needs.”); 4th Brenneke Decl. Ex. 3 at I-1 (CARE “is an automated
system used to collect demographic data, assess functional needs and abilities, health, and medical information,
26 determine eligibility for services, develop a care plan, and authorize services for clients on or requesting long-term
care services”); id. at V-3 (as part of CARE, base hours are adjusted “based on a percentage of unmet needs for
27 selected ADLs and IADLs”); id. at V-2 to V-4 (charts showing how base hours are adjusted based on the presence or
absence of informal supports tailoring hours allocations to client’s needs).

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1

When the Department implemented the CARE tool to assess developmentally disabled

2 personal care recipients, develop Individual Service Plans (“ISPs”), and manage their care, that

3 was done based upon the Department’s agreement to engage in individualized assessments and

4 allocations of hours to meet their individual care needs. See 4th Brenneke Decl. Ex. 7 at 2-3

5 (report prepared on behalf of DDD; “The SIS was designed to directly assess the support needs

6 of individuals with developmental disabilities across several critical domains of every day

7 community life and functioning”; other assessment tools “do not measure the level, amount, and 8 frequency of the supports that are necessary to assist a person day-by-day”).36 The regulations

9 for the personal care services programs serving individuals with developmental disabilities also

10 makes clear that hours are authorized to meet clients’ assessed individual needs. See WAC 388-

11 828-1020 (“‘Individual support plan’ or ‘ISP’ is a document that authorizes and identifies the 12 DDD paid services to meet a client's assessed needs.”).37

13

Finally, even if it were the case (which it is not) that the CARE system does not

14 determine individual need, Defendants have never contested Plaintiffs’ showing that, as a factual

15 matter, only minimally necessary hours are authorized. In fact, the evidence Defendants

16 supplied that ETRs increase CARE tool hours authorizations above the maximum in order to

17 meet minimal needs in exceptional individual circumstances supports the conclusion that

18 individual beneficiary needs, health and safety drive the authorization standard, and that this

19 standard is usually met through the CARE assessment and planning process. Defendants

20 implicitly suggest that the State has been authorizing more hours than beneficiaries need – so

21
36 See also 4th Brenneke Decl. Ex. 6 at Federal Medicaid Program 3, Conclusion 3, and Conclusions and

22 Recommendations 1 (joint legislative committee audit noting that federal government determined state agency was

not meeting Medicaid guidelines and recommending development of assessment process for developmentally

23 disabled clients); Ex. 8 at 7 (DSHS settlement agreement and order; services “authorized to meet the assessed need

of each HCBS waiver participant” must be documented in ISP).

24

37 See also id., 388-828-1060 (“The purpose of the DDD assessment is to provide a comprehensive

assessment process that: . . . (3) Identifies a level of service and/or number of hours that is used to support the

25 assessed needs of clients who have been authorized by DDD to receive: (a) Medicaid personal care services or

DDD HCBS waiver personal care per chapter 388-106 WAC.”); id., 388-828-8000 (“The purpose of the individual

26 support plan module is to crate a written plan that includes ... DDD paid services you are authorized to receive: (a) If

you are enrolled in a DDD waiver, the ISP must address all the health and welfare needs identified in your ICF/MR

27 level of care assessment and the supports used to meet your assessed needs; or (b) If you are not enrolled in a DDD

waiver, DDD is only required to address the DDD paid services you are approved to receive.”).

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1 that there is room to cut those hours without inflicting harm – but present no evidence to support

2 the notion that the State has been authorizing unnecessary hours because of available funding

3 before now.

4

C. The Balance of Equities and Public Interest Favor Plaintiffs.

5

The risk of illness and injury to Plaintiffs and other low-income individuals deprived of

6 home care services outweighs Defendants’ purely fiscal interest in making the reductions:

7

State budgetary concerns cannot . . . be the conclusive factor in decisions regarding

Medicaid. A budget crisis does not excuse ongoing violations of federal law, particularly

8

when there are no adequate remedies available other than an injunction. . . . State

budgetary considerations do not . . . , in social welfare cases, constitute a critical public

9

interest that would be injured by the grant of preliminary relief. In contrast, there is a

robust public interest in safeguarding access to health care for those eligible for

10

Medicaid, whom Congress has recognized as the most needy in the country.

11 Independent Living Ctr., 572 F.3d at 659 (internal quotations omitted); see also Dominguez v.

12 Schwarzenegger, 596 F.3d 1087, 1098 (9th Cir. 2010) (“individuals’ interests in sufficient access

13 to health care trump the State’s interest in balancing its budget”); California Pharmacists Ass’n 14 v. Maxwell-Jolly, 563 F.3d at 852-53.38

15

Plaintiffs respectfully suggest that this Court did not correctly apply this Ninth

16 Circuit authority on the proper weight to be given human and health care needs as

17 opposed to state fiscal concerns when it held that the balance of equities weighed against

18 a TRO. TRO Order (Dkt. 76) at 25:9-26:5. That holding was apparently driven by the

19 Court’s conclusion that the services at issue were not critical and its deference to

20 Defendants’ decisions regarding how to reduce spending. Id. at 25:20-25. Such

21 deference, however, is not appropriate. In the Ninth Circuit cases concerning California,

22 cited above, where the budget crisis was certainly no less severe, there were similarly

23 clients of other health and human service programs.

24

This Court’s conclusion seems to have rested on the erroneous premise that any

25 delay in implementing the reductions at issue “will result in either greater decreases at a

26

27

38 It is doubtful that the reductions will save the State money, given the cost of institutionalization and loss

of state revenue. Reed Decl. (Dkt. 18) ¶¶20, 23; LaPlante Decl. (Dkt. 22) ¶20; Lucia Decl. (Dkt. 23) ¶¶5, 13.

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1 later time to reach the same financial goals or cuts to other programs.” TRO Order (Dkt.

2 76) at 25:15-17. This is not necessarily the case. Nothing prevents the State from 3 reducing funding outside of DSHS or raising revenue.39 Even if cuts within DSHS were 4 necessary, such cuts could be made in ways that would not increase institutionalization.40

5

D. Plaintiffs are Likely to Succeed on the Merits of Their Claims.

6

1. Defendants’ Inadequate Notice and Failure To Provide a Hearing

Violate the Due Process Clause and the Medicaid Act. 7

The notices DSHS mailed to inform beneficiaries of the planned hours reductions did not

8

comply with Due Process or the Medicaid Act because they failed to inform beneficiaries that (1)

9

additional personal care hours could be awarded through the Exception to Rule (“ETR”) process

10 if the reduced hours were insufficient to meet their health and safety needs;41 (2) additional in-

11

home personal care hours could be awarded through the CARE reassessment process due to

12

changed circumstances caused by the hours reductions (such as changes in living situations or

13

provider willingness to provide informal support) or deteriorated health condition; and (3) there

14

are other Medicaid benefits for which beneficiaries are eligible in lieu of in-home care, including

15

community-based residential care facilities and nursing homes. See Brenneke Decl. Ex. 1A

16

(Dkt. 12-2) (“Notice”). The Notice also unlawfully told beneficiaries they could not appeal the

17

reductions and were not entitled to a hearing. Id. This Court’s order denying Plaintiffs’ TRO

18

failed to address deficiencies in the Notice itself (perhaps because the Court mistakenly believed

19

that the Notices informed beneficiaries of the ETR process when the Notices did not), and found

20

21

39 Although RCW 43.88.110(7) requires the governor to make “across-the-board reductions in allotments”

if she “projects a cash deficit in a particular fund or account,” nothing prevents the legislature from adjusting

22 allocations or raising additional revenue to compensate for a projected deficit and avoid such reductions. In any

event, state law concerning state budgets cannot trump the federal requirements Plaintiffs seek to enforce. See, e.g.,

23 Hutto v. Finney, 437 U.S. 678 (1978) (attorneys’ fees); Industrial Truck Ass'n, Inc. v. Henry, 125 F.3d 1305, 1309

(9th Cir. 1997) (state law must give way “where state law stands as an obstacle to the accomplishment and execution

24 of the full purpose and objectives of Congress”).
40 See, e.g., 3rd Brenneke Decl. Ex. 6 at 3.9 (unimplemented proposal to close certain DSHS Division of

25 Developmental Disabilities-run residential habilitation centers and move more clients to home and community-

based services would have saved State a net total of $116,138,316 from FY 2010 to FY 2018).

26

41 The ETR process “grant[s] additional hours beyond those authorized under the regular assessment

process” when “the amount of hours for the person’s classification group [is] not … enough to address the

27 individual’s current circumstances.” Leitch Decl. (Dkt. 67) ¶4; WAC 388-440-0001; see also WAC 388-106-

0130(8).

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1 that beneficiaries are not entitled to hearings because they cannot not raise factual challenges to

2 the hours reductions, despite the fact that ETRs and re-assessment require factual determinations.

3

States may not reduce Medicaid services without providing meaningful notice prior to the

4 reduction, continued benefits pending a pre-reduction hearing, and a fair and impartial hearing.

5 Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970); Perry v. Chen, 985 F.Supp. 1197 (D. Ariz.

6 1996) (applying Goldberg to reduction in services); Washington v. DeBeaugrine, 658 F.Supp.2d

7 1332, 1335 (N.D. Fla. 2009) (applying Goldberg to reduction in optional services). The extent

8 of the process due is flexible, requiring a balancing of private and government interests.

9 Matthews v. Eldridge, 424 U.S. 319, 334-335 (1976). To the extent Medicaid regulations require 10 notice and hearing,42 the government already has agreed that private interests outweigh

11 governmental interests, Perry, 985 F.Supp. at 1204, but due process may require more.

12 Hearings must be provided to recipients who request them to challenge a service reduction as

13 factually erroneous and services must be maintained at current levels in the interim. 42 C.F.R.

14 §§431.220, 431.230, 431.241(b). In addition, “free choice” Medicaid rules governing the

15 personal care services at issue here require that recipients be “(1) Informed of any feasible

16 alternatives available under the waiver; and (2) Given the choice of either institutional or home

17 and community based services.” 42 C.F.R. §441.302(d). State agencies must “continue to

18 furnish Medicaid regularly to all eligible individuals until they are found to be ineligible,” 42

19 C.F.R. §435.930(b), and Plaintiffs have a right to ongoing and seamless long term care benefits.

20

Under these standards, the Notices are grossly inadequate. First, this Court found that

21 “even if the decreases in base hours might leave some plaintiffs without sufficient personal care

22 services to safely remain in their homes,” the ETR procedure could be used to obtain additional 23 hours. TRO Order (Dkt. 76) at 13:1-22.43 But the Notices did not inform beneficiaries that

24

25

42 At least ten days prior to the reduction of any Medicaid service, states must mail written notice with (a) a

statement of the State’s intended action; (b) the reasons for the intended action; (c) the specific regulation or law that

26 supports the change; (d) an explanation of the right to a hearing if one is available; and (e) an explanation of the

circumstances under which services will be continued pending hearing. 42 C.F.R. §§ 431.201, 431.210, 431.211.

27

43 State regulations provide no right to request or be considered for an ETR, no standards that apply, no fair

hearing rights, and no right to continued benefits in the interim. WAC 388-440-0001(3), 388-426-0005. To the

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1 additional hours could be awarded through the ETR process. This Court’s belief that the

2 Notices advised beneficiaries about the ETR process, TRO Order (Dkt. 76) at 13:6-12, was

3 mistaken. It is only the internal DSHS staff bulletin, not the Notice sent to beneficiaries, that

4 discusses ETR. Compare Brenneke Decl. Exs. 1A-1D (Dkts. 12-2 to 12-5); with Brenneke Decl.

5 Ex. 1(Dkt. 12-1); Def. Resp. TRO Ex. 10 (Dkt. 66-2). Instead, beneficiaries were told “[t]here

6 are no appeal rights for this change” and were advised to contact their case manager only with

7 “questions or concerns” (not to request additional hours). Brenneke Decl. Ex. 1A-1D (Dkt. 12-2

8 to 12-5); Chatwin Decl. Ex. 2 (Dkt. 48-2); Allington Decl. Ex. 1(Dkt. 52-1). Case managers

9 improperly refused to initiate the ETR and some told beneficiaries that the ETR process is not 10 available to restore these hours reductions. See supra at 17 & nn. 27-28.44

11

Second, beneficiaries should have been notified that they could request a reassessment if

12 their circumstances changed as a result of the hours cuts. The CARE tool reduces base hour

13 allocations when a beneficiary has “informal support[]” (WAC 388-106-0130(b)) such as a live-

14 in provider who is also able to furnish a certain amount of uncompensated care, and those

15 informal hours are included in the care plan and counted with specificity. Black Decl. (Dkt. 19)

16 ¶13 & Ex. 2 (Dkt. 19-2) at 161-163. Reassessments are authorized when there is a change in

17 informal supports. WAC 388-106-0140; WAC 388-106-0130(2). Many beneficiaries will have

18 such a change in informal supports as a result of the hours reductions, because their providers 19 will no longer be willing or able to continue to provide free care.45 For example, H.C.’s

20
extent Defendants rely on the ETR procedure to satisfy their substantive legal obligations, the ETR procedure cannot
21 be discretionary or standardless, and must satisfy due process.
44 ETRs are authorized only upon request by DSHS staff (not clients). Black Decl. Ex. 3 (Dkt. 19-3) at 25-
22 26. Defendants have asserted that “a beneficiary may simply ask a case manager for an ETR,” TRO Order (Dkt. 76)
at 13:12-16, but it is impossible for beneficiaries to ask for something of which they have never been notified.
23 Moreover, Defendants’ counsel represented that “any out-of-home placement automatically requires the case
manager to evaluate whether an ETR is appropriate,” TRO Order (Dkt. 76) at 13:18-19, but no ETR process has
24 been initiated in those cases in which Plaintiffs have been moved into nursing homes or their caregivers have
notified DSHS that they will need to be moved. Hayes Decl. (Dkt. 47) ¶8; Maxson Decl. (Dkt. 26) ¶11; S.J. Decl.
25 (Dkt. 27) ¶25; Braddock Decl. (Dkt. 28) ¶27.
45 Plaintiffs have shown numerous examples where this will be true, in cases involving individual and
26 agency providers. For example, an agency faced with the cumulative impacts of these cuts will no longer pay for its
employees to provide additional “‘charity’ hours” that has been relied upon by their clients, resulting in substantial
27 service cuts and increased risk of health deterioration and institutionalization. Walsh Decl. (Dkt. 25) at ¶¶ 14-15. In
these cases, because the “informal supports” are no longer willing to provide services in the future, the existing

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1 provider, who lived with him, was going to be forced to find another job because of the hours

2 reductions and would have stopped providing uncompensated care. Chatwin Decl. (Dkt. 48)

3 ¶¶20-21. He had already registered his father for a nursing home. 2nd Chatwin Decl. ¶3, 8.

4

Beneficiaries are entitled to reassessments if their own health condition changes. They

5 should have been notified of this, as well, at the time the Department unilaterally “amended” the

6 care plans based upon dated needs assessments. The Department has a duty to ensure the health

7 and safety of beneficiaries in developing care plans. WAC 388-106-0130 (8). When the

8 Department unilaterally “amends” the care plans, they cannot escape the duty to ensure the

9 amended plan provides for the health and safety of the beneficiaries based upon their current

10 needs for support. Since the Department did not conduct its own reassessments before making

11 the cuts, beneficiaries at least need to know that they can request a reassessment in such

12 circumstances. See, e.g., 2nd Maxson Decl. ¶¶4-13, 18 (M.R.’s health condition has deteriorated

13 since her last assessment but case worker has been unresponsive to requests for assistance; hours

14 were insufficient even before January 2011 reductions).

15

Third, the vast majority of beneficiaries meet the criteria for admission to a skilled

16 nursing facility or ICF-MR, which are mandatory Medicaid benefits. 42 U.S.C.

17 §§1396d(a)(44)(A), 1396a(a)(10)(C)(iv). Beneficiaries’ decision not to receive services in a 18 nursing home, or to avail themselves of other Medicaid benefits46 or alternative community

19 based residential care options, was made in reliance on a care plan setting forth a specific number 20 of personal care hours, which the State has now reduced.47 Accordingly, beneficiaries should

21

CARE assessment is invalid and a new assessment is required. See also Maxson Decl. (Dkt. 26) ¶¶5, 22; Ivonav

22 Decl. (Dkt. 58) ¶¶15, 23-25; Flint Decl. (Dkt. 53) ¶16; A.H. Decl. (Dkt. 54) ¶12; Guin Decl. (Dkt. 55) ¶¶7, 29-31,

33, D.V.S. Decl. (Dkt. 59) ¶¶16-18; 2nd Jane B. Decl. ¶¶9-11; 2nd Paolino Decl. ¶7; Perkins Decl. ¶3; Josephsen

23 Decl. ¶7-8.
46 Other Medicaid services, such as Adult Day Health, nursing care, or Adult Family Home care for which

24 beneficiaries are eligible, should be provided as alternatives to meet beneficiary needs in light of the hours cuts.

See, e.g., Maxson Decl. (Dkt. 26) (registered nurse who is provider for daughter sought but received no help finding

25 alternative services such as part-time adult family home placement; despite assessment finding household at “risk”

and decline in daughter’s health, hours have been reduced).

26

47 Maxson Decl. (Dkt. 26) ¶¶5, 10-11, 13; S.J. Decl. (Dkt. 27) ¶¶10-11; Braddock Decl. (Dkt. 28) ¶¶7, 21-

22; C.B. Decl. (Dkt. 29) ¶¶3, 13-14, 16; Davis Decl. (Dkt. 30) ¶¶6, 10, 21; D.W. Decl. (Dkt. 31) ¶¶3, 15; McIntosh

27 Decl. (Dkt. 32) ¶5; Jane B. Decl. (Dkt. 33) ¶¶4, 7, 14; Starr Decl. (Dkt. 34) ¶¶3, 9, 16; Morrow Decl. (Dkt. 38) ¶5;

Hays Decl. (Dkt. 39) ¶¶4, 8, 19; Frederick Decl. (Dkt. 40) ¶¶3, 6; Dockstader Decl. (Dkt. 42) ¶5; Paolino Decl. (Dkt.

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1 have been notified of their right to choose among available options they previously declined,

2 including nursing homes and community-based care outside of their homes, before their hours 3 were reduced: a new chance to make a “free choice” is required, based on new circumstances.48

4 See 42 C.F.R. §441.302(d).

5

Defendants’ failure to notify beneficiaries of their rights to increased hours through the

6 ETR process, to reassessment based on changed circumstances (including changed

7 circumstances caused by the hours reductions), and to choose a nursing home or community-

8 based residential care facility in light of the hours reduction, violates Due Process and the

9 Medicaid Act. See Goldberg, 397 U.S. at 267-68 (requiring “timely and adequate notice

10 detailing the reasons for a proposed termination, and an effective opportunity to defend”); 42

11 C.F.R. §441.302(d) (must be informed of all “feasible alternatives”). In Rosen v. Goetz, 410

12 F.3d 919, 923 (6th Cir. 2005), when a state law eliminated several optional categories of

13 Medicaid eligibility, the state notified beneficiaries of the planned terminations, informed them

14 that they could continue to receive Medicaid if they fell within an eligibility category that was

15 not being eliminated, and allowed them 30 days to supply the information necessary to determine

16 their eligibility for these other categories. Washington State could and should have done the

17 same: informed beneficiaries that they could request an ETR to add hours necessary to live

18 safely at home, a reassessment for changed circumstances (including changed circumstances

19 caused by the hours reductions), other Medicaid benefits, or nursing home or other residential

20 placement if no safe plan of care could be arranged. The personal interest at stake (health and

21 safety) is extremely important; the additional process would be very valuable to beneficiaries;

22

45) ¶¶5, 8, 18; Hayes Decl. (Dkt. 47) ¶¶10-11; Chatwin Decl. (Dkt. 48) ¶¶5, 8, 18; Allington Decl. (Dkt. 52) ¶¶5, 8;

23 Flint Decl. (Dkt. 53) ¶¶4, 7; A.H. Decl. (Dkt. 54) ¶4; Guin Decl. (Dkt. 55) ¶¶6, 9, 15, 22; Faatoafe Decl. (Dkt. 56)

¶¶6, 14; N.N.A. Decl. (Dkt. 57) ¶¶4-5; Ivonav Decl. (Dkt. 58) ¶¶5, 8, 18; D.V.S. Decl. (Dkt. 59) ¶¶4, 9-10.

24 Compare Notice, Brenneke Decl. Ex. 1A (Dkt. 12-2); with C.B. Decl. Ex. 1B (Dkt. 29-2) at 6 (Service Summary

listing hours to which beneficiary is entitled prior to reductions, with signed acknowledgement: “I am aware of all

25 alternatives available to me and I understand that access to 24-hour care is available only in residential settings,

including community residential settings. I agree with the services outlined in this summary.”)

26

48 The fact that Defendants may have previously informed beneficiaries of their right to nursing home or

alternate community based services is immaterial; that information must be provided at a meaningful time—in the

27 notice of reduction of services. See Baker v. State of Alaska, 191 P.3d 1005, 1009-10 (Alaska 2008) (agency may

not presume that beneficiaries already have certain information, but must provide complete notice).

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1 and the burden (mailing a notice) is low.49 See Matthews, 424 U.S. at 334-335.

2

Beneficiaries are also entitled to a fair hearing and interim benefits pending a final

3 decision on their request for reassessment or ETR. This Court originally held that hearings were

4 not required because Medicaid regulations provide that “recipients are not entitled to a hearing if

5 the sole issue is a state law requiring an automatic change affecting some or all recipients.”

6 TRO Order (Dkt. 76) at 23:20-24:1 (citing 42 C.F.R. §431.220(b)). As this Court noted, the

7 “limitation on the hearing requirement arises out of the practical consideration that, absent some

8 factual dispute about an individual’s right to benefits, a hearing would serve little . . . purpose.”

9 TRO Order (Dkt. 76) at 24:1-3; see also Rosen, 410 F.3d at 926. Here, however, DSHS’s

10 decision to unilaterally “amend” 45,000 individualized care plans without individualized

11 reassessments raises myriad factual disputes. Here, the sole issue is not one of a change in state

12 law: instead, the reassessment and ETR process require factual determinations that may be 13 challenged in a hearing.50 As this Court found, “the right to an exemption for hardship

14 necessarily raise[s] a factual dispute that g[i]ve[s] rise to a hearing requirement.” TRO Order

15 (Dkt. 76) at 24:20-21 (citing Claus v. Smith, 519 F.Supp. 829, 883 (N.D. Ind. 1981)). The ETR

16 procedure is an exemption process. Thus, beneficiaries must be notified that they may request

17 reassessment or ETR, contest the validity of their “amended” care plans at a hearing, and

18 maintain current hour levels in the interim.

19

In short, the hours reductions will jeopardize the health and safety of some beneficiaries

20 to the point that they qualify for increased hours through the ETR process, reduce informal

21 supports available for others such that they are entitled to increased hours under the CARE

22 assessment tool, and lead others to need alternative community-based or institutional residential

23

24

49 Any financial burden to the State in actually providing the additional services to which beneficiaries

might be entitled based on reassessment, the ETR process, or nursing home admission is not part of this calculus;

25 consistent with Due Process, the State may not balance its budget by hiding from beneficiaries the fact that they are

eligible for additional or different Medicaid services.

26

50 Washington law recognizes that reassessments give rise to factual disputes requiring a fair hearing.

Beneficiaries have “a right to contest the result of your CARE assessment and/or other eligibility decisions made by

27 the department. The department will notify you in writing of the right to contest a decision and provide you with

information on how to request a hearing.” WAC 388-106-1305. There is no statutory right to appeal ETR denials.

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1 placement. Consistent with Due Process and the Medicaid Act, beneficiaries must be notified of

2 these options, and afforded a hearing (with hours maintained pending the hearing) to contest any

3 adverse factual determinations. Because the Notices were inadequate in all of these respects, the

4 cuts must at the very least be immediately enjoined pending mailing of a new, lawful notice and

5 provision of fair hearing rights with continuing benefits. See, e.g., Eder v. Beal, 609 F.2d 695,

6 701 (3d Cir. 1979) (state must reinstitute terminated Medicaid program until notice consistent

7 with Due Process and Medicaid Act has been sent).

8

2. The Reduction in Personal Care Hours Violates the ADA.

9

Defendants’ actions violate the ADA and Rehabilitation Act, which prohibit unjustified

10 institutionalization and mandate integration of individuals with disabilities into the community to

11 the greatest extent possible. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999);

12 Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003); 42 U.S.C. § 12132; 29 U.S.C. § 794(a); 28

13 C.F.R. §§ 35.130(b)(7) (reasonable accommodation mandate), 35.130(d) (integration mandate).

14

Through Title II of the ADA, 42 U.S.C. § 12132, Congress sought to eliminate the

15 “unjustified segregation and isolation” of individuals with disabilities. Townsend, 328 F.3d at

16 516. The ADA’s implementing regulations carry out this purpose by requiring public entities to

17 “administer services, programs, and activities in the most integrated setting appropriate to the

18 needs of qualified persons with disabilities.” 28 C.F.R. § 35.130(d).51 In Olmstead, the

19 Supreme Court construed this integration mandate, interpreting discrimination forbidden under

20 Title II of the ADA to include “unjustified isolation of individuals with disabilities.” 527 U.S. at

21 597.

22

To establish an Olmstead violation, a plaintiff must show (1) the state’s treatment

23 professionals have determined community-based services are appropriate, (2) the disabled

24 individual does not oppose such treatment, and (3) provision of community-based services can

25
51 “The ‘most integrated setting’ is defined as ‘a setting that enables individuals with disabilities to interact
26 with non-disabled persons to the fullest extent possible.’” Brantley 656 F.Supp.2d at 1170 (citing 28 C.F.R. pt. 35
app. A; Olmstead, 527 U.S. at 592). This mandate “serves one of the principal purposes of Title II of the ADA:
27 ending the isolation and segregation of disabled persons.” Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 618
(9th Cir. 2005); see also Brantley, 656 F.Supp.2d at 1170.

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1 be reasonably accommodated, taking into account the resources available to the state and the

2 needs of other individuals with disabilities. 527 U.S. at 587. The State’s obligation to provide

3 services in the most integrated setting is excused only when it proves that the relief sought would

4 require a “fundamental alteration” of its program. Olmstead, 527 U.S. at 603-4; see also

5 Townsend, 328 F.3d at 517; Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1181

6 (10th Cir. 2003) (integration mandate protects plaintiffs who already reside at home or in 7 community settings).52 Plaintiffs establish an Olmstead violation where they present evidence

8 showing that the State’s actions create “serious risks” of unjustified institutionalization.

9 Brantley, 656 F.Supp.2d at 1171.

10

Plaintiffs satisfy these standards. They are qualified individuals with disabilities who are

11 able to live at home only because they receive in-home personal care services.53 The reductions

12 violate the ADA’s integration mandate by requiring them to make do with less than they need or

13 to move out of their homes to obtain full long-term care services in less integrated settings.

14 Moreover, the relief Plaintiffs seek would not “fundamentally alter” the services at issue; rather,

15 Plaintiffs seek to maintain current service levels.

16

Plaintiffs have presented substantial evidence showing that the cuts at issue here create

17 serious risks of institutionalization. DSHS’s own plan admits as much: “[i]n some cases, a safe

18 in-home plan of care will not be possible and clients may need to go to community residential or

19 nursing facility settings.” Brenneke Decl. Ex. 4 (Dkt. 12-8) at 6; see also id. Ex. 5 (Dkt. 12-9) at

20 1. That conclusion is reinforced by expert analysis, see, e.g., Black Decl. (Dkt. 19) ¶¶33-34,

21 Reed Decl. (Dkt. 18) ¶¶46-47, LaPlante Decl. (Dkt. 22) ¶¶21-22, Walsh Decl. (Dkt. 25) ¶¶12-13,

22 Dapper Decl. (Dkt. 20) ¶17, as well as by many individual declarations establishing a serious and

23
52 ADA regulations require public entities to “make reasonable modifications in policies, practices, or
24 procedures when the modifications are necessary to avoid discrimination on the basis of disability,” unless they can
demonstrate that making the modifications “would fundamentally alter the nature of the service, program, or
25 activity.” 28 C.F.R. § 35.130(b)(7).
53 DSHS individually assessed and certified that all of the individuals receiving in-home personal care
26 services under waiver programs qualify for nursing facility or intermediate care facility for the mentally retarded
(ICFMR) levels of care without in-home services; the vast majority of the MPC beneficiaries have such acute
27 disabilities that they, too, meet the functional eligibility criteria entitling them to nursing facility level of care. See
WAC 388-106-0310(4); 388-106-0510(4); see also Reed Decl. (Dkt. 18) ¶19.

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1 in some cases imminent risk of institutionalization. See supra at 12-13 & n. 15.54 The risk of

2 institutionalization has increased in severity and imminence even since this Court denied

3 Plaintiffs’ TRO motion. See 2nd Jane B. Decl. ¶14; 2nd Chatwin Decl. ¶¶8, 12

4 (institutionalization this month as soon as paperwork is completed); 2nd Paolino Decl. ¶¶3, 6-7

5 (commitment planned once vacancy opens) and 3rd Paolino Decl ¶¶5-6 (institutionalization now

6 avoided due to ETR); 2nd Hayes Decl. ¶¶3-12 (beneficiary already institutionalized); Anderson-

7 Webb Decl. ¶¶7, 30, 32; Bergstrom Decl. ¶7 (in response to concerns about cuts caseworker said

8 beneficiary should consider institutionalization). See also Wujick Decl., pp. 2-3. This risk of

9 institutionalization will not be mitigated by an ETR process if people don’t know about it, have

10 no right to access it, and no right to challenge its results. See supra at 25-26 & nn. 43-44.

11

This Court’s previous rejection of Plaintiffs’ ADA claims in the context of the TRO

12 motion was based on erroneous legal standards. Initially, this Court held Plaintiffs had not

13 shown that the proposed cuts would pose an “immediate threat of mass institutionalization” or

14 involve a “wholesale denial of benefits to an entire class of disabled individuals.” TRO Order

15 (Dkt. 76) at 22:24-23:1. But as DOJ has explained in other cases involving budget-based 16 cutbacks to Medicaid in-home services,55 a showing that a denial of services would create a

17 “serious” risk of institutionalization, including a risk of “eventual institutionalization over time,”

18 establishes an Olmstead violation. Brenneke Decl. Ex. 15 (Dkt. 17-5) at 24-26 (emphasis

19 added). Olmstead claims do not require proof that institutionalization is certain or immediate.

20 See Fisher, 335 F.3d at 1181-82, 1184 (“substantial risk” of harm including nursing home entry

21 posed by cap on prescription medications, which would simply cost some plaintiffs $25 to $60

22
54 See also Exs. D.W. Decl. (Dkt. 31) ¶¶22b, 25; C.B. Decl. (Dkt. 29) ¶35; K.S. Decl. (Dkt. 36) ¶¶17, 21;

23 Albott Decl. (Dkt. 37) ¶13; Jane B. Decl. (Dkt. 33) ¶¶22, 25; Davis Decl. (Dkt. 30) ¶¶31-32, 36; Dockstader Decl.

(Dkt. 42) ¶19; Chatwin Decl. (Dkt. 48) ¶¶2, 5-6, 11-14, 20-21, 25; Faatoafe Decl. (Dkt. 56) ¶24; Frederick Decl.

24 (Dkt. 40) ¶¶22-24; McIntosh Decl. (Dkt. 32) ¶20-21; Morrow Decl. (Dkt. 38) ¶6; Paolino Decl. (Dkt. 45) ¶¶24, 26;

Hayes Decl. (Dkt 47) ¶8; M.J.B. Decl. (Dkt. 44) ¶5; Hays Decl. (Dkt. 39) ¶31; S.J. Decl. (Dkt 27) ¶¶25-27;

25 Braddock Decl. (Dkt 28) ¶¶27-31; Maxson Decl. (Dkt 26) ¶¶25, 31; Walsh Decl. (Dkt 25) ¶¶14-17 (agency director

discussion of “likely” hospitalization and institutionalization in individual cases).

26

55 The DOJ is entitled to deference in interpreting the integration mandate, which is set forth in its own

regulation (28 C.F.R. § 35.130(d)). See Olmstead, 527 U.S. at 597-98; see also Federal Express Corp v. Holowecki,

27 552 U.S. 389, 397 (2008); Zurich American v. Whittier Properties, 356 F.3d 1132, 1137 & nn. 25-27 (9th Cir.

2004); Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002).

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1 per month, could establish Olmstead violation); Brenneke Decl. Ex. 15 (Dkt. 17-5) at 26 (DOJ

2 brief; no immediate institutionalization was threatened in Fisher, but “the evidence showed that

3 many of plaintiffs would remain in their homes ‘until their health ha[d] deteriorated’ and would

4 ‘eventually end up in a nursing home’”) (quoting Fisher, 335 F.3d at 1185 (emphasis added by 5 DOJ)).56 Plaintiffs have shown such a serious risk here. See supra at 12-13 & n. 15.

6

Plaintiffs respectfully submit that there also is no requirement that “mass

7 institutionalization” be shown. TRO Order (Dkt. 76) at 22:25. Olmstead itself and numerous

8 other cases involve individual plaintiff claims; the integration mandate protects individuals from

9 unnecessary institutionalization. 42 U.S.C. §12132; Fisher, 335 F.3d at 1181-82, 84; Marlo M.

10 ex rel. Parris, 679 F.Supp.2d at 638; Brantley, 656 F.Supp.2d at 1171-72.

11

Nor must Plaintiffs show a “wholesale” denial of benefits. TRO Order (Dkt. 76) at

12 22:25-23:1. Fisher, for example, found a risk of institutionalization due to a cap on prescription

13 drug benefits for recipients of benefits in community-based programs, 335 F.3d at 1181-82—not

14 at all a situation where the state completely terminated benefits to a group of recipients.

15

The two decisions on which this Court previously relied are inapposite, because they

16 rejected efforts to compel the state to drastically change existing programs on the ground that

17 they were demanding fundamental alterations of the programs at issue. In Sanchez v. Johnson,

18 416 F.3d 1051, 1063, 1066-68 (9th Cir. 2005), the court rejected on fundamental alteration

19 grounds the plaintiffs’ claim seeking “a forty percent increase in the State’s budget for

20 developmentally disabled services.” Similarly, in Arc of Wash., 427 F.3d at 617-18, the court

21 rejected on fundamental alteration grounds the plaintiffs’ argument that a state must make a

22

23

56 See also Marlo M. ex rel. Parris v. Cansler, 679 F.Supp.2d 635, 638 (E.D.N.C. 2010) (“substantial risk

of institutionalization”); G. v. Hawaii, 676 F.Supp.2d 1046, 1057 (D. Haw. 2009) (“will likely force beneficiaries

24 from an integrated environment into institutional care”); V.L., 669 F.Supp.2d at 1119 (“severe risk of

institutionalization”); Ball v. Rodgers, No. CV 00-67-TUC-EHC, 2009 WL 1395423, at *5 (D. Ariz. Apr. 24, 2009)

25 (“threatened Plaintiffs with institutionalization”); Mental Disability Law Clinic v. Hogan, Civ. No. 06-6320, 2008

WL 4104460, at *15 (E.D.N.Y. Aug. 28, 2008) (“risk of unjustified segregation”); Nelson v. Milwaukee County,

26 Civ. No. 04-193, 2006 WL 290510, at *7 (E.D. Wis. Feb. 7, 2006) (“substantially increase[d] the probability” of

institutionalization); M.A.C. v. Betit, 284 F.Supp.2d 1298, 1309 (D. Utah 2003) (“threaten[ed]” institutionalization);

27 Makin ex rel. Russell v. Hawaii, 114 F.Supp.2d 1017, 1034 (D. Haw. 1999) (“could potentially force Plaintiffs into

institutions”).

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1 home and community-based waiver program available to every eligible developmentally

2 disabled person rather than capping the participants.

3

Unlike Sanchez and Arc of Washington, Plaintiffs here do not ask this Court to order the

4 State to expand its home care program or create a new one; rather, Plaintiffs request maintenance

5 of the status quo, and that the State be enjoined from cutting needed services it already provides.

6 A request to retain an existing program is not a “fundamental alteration,” since the plaintiff is

7 “not demanding a separate service or one not already provided.” Fisher, 335 F.3d at 1183.

8 Moreover, fiscal burdens alone cannot justify failing to implement the integration mandate. See

9 id.; Pennsylvania Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d

10 Cir. 2005); Townsend, 328 F.3d at 520. Plaintiffs are likely to succeed on their ADA claims.

11

3. Plaintiffs Are Likely To Succeed on Their Medicaid Claims.

12

Medicaid is a cooperative federal-state program that allows states to receive federal

13 financial assistance for medical assistance to low-income individuals. 42 U.S.C. § 1396 et seq.

14 Participating states must comply with the Medicaid Act and its implementing regulations. 42

15 U.S.C. § 1396; Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985); see also Lankford v.

16 Sherman, 451 F.3d 496, 510 (8th Cir. 2006).

17

a. Reasonable Standards

18

The Medicaid Act requires that participating states employ “reasonable standards … for

19 determining … the extent of medical assistance under the plan which … are consistent with the

20 objectives of this subchapter.” 42 U.S.C. § 1396a(a)(17). The primary objectives of Medicaid

21 are to provide medical assistance to individuals who cannot afford the costs of necessary medical

22 services and to furnish “rehabilitation and other services to help such … individuals attain and

23 retain capability for independence or self care.” 42 U.S.C. § 1396-1.

24

When state Medicaid rules deny or reduce services based on factors other than a

25 reasonable measure of need, courts invalidate them as contrary to the reasonable standards

26 requirement. See Lankford, 451 F.3d at 511-13 (optional medical equipment benefit); Weaver v.

27 Reagan, 886 F.2d 194, 196-200 (8th Cir. 1989) (AZT coverage based on FDA approved uses);

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1 Allen, 681 F.Supp. at 1233-34, 1238 (state medical necessity criteria arbitrary when unsupported

2 by expert opinion or scientific data); see also Hern v. Beye, 57 F.3d 906, 910-11 (10th Cir.

3 1995); Preterm, Inc., v. Dukakis, 591 F.2d 121, 131 (1st Cir. 1979); White v. Beal, 555 F.2d

4 1146, 1150-51 & n.3 (3d Cir. 1977).

5

Courts have enjoined budget-driven cuts to services like those at issue here as in violation

6 of reasonable standards. See V.L., 669 F.Supp.2d at 1117 (reduction of Medicaid home care

7 services based on beneficiaries’ numerical scores “not designed as a measure of eligibility or

8 need for [home care] services”); Cota v. Maxwell-Jolly, 688 F.Supp.2d 980, 992 (N.D. Cal.

9 2010) (modification of qualifying impairments for adult day services, without explanation of

10 “how these changes are linked to the individual’s circumstances, particular need for ADHC

11 services or their risk of institutionalization”).

12

The reduced services authorizations that will result from the ten percent cut, driven by

13 budgetary needs and without consideration of individual circumstances, will not fulfill the

14 requirement that reasonable standards determine the extent of services. Washington’s budget-

15 based reduction of home care hours without any reassessment or change in circumstances

16 undercuts the integrity of the CARE system’s scientific, individualized assessments, care plans

17 and hours authorizations. See supra at 3-6; see also Reed Decl. (Dkt. 18) ¶42 (resulting hours

18 allocations will be “arbitrary” and without “any logic or reasoning”); Black Decl. (Dkt. 19) ¶¶30-

19 31 (will guarantee gap between need and services); Dapper Decl. (Dkt. 20) ¶13 (will separate

20 hours authorization from needs assessment).

21

This Court’s previous determination that Plaintiffs were unlikely to succeed on this claim

22 rested in part on the Court’s conclusion that the reduction would not cause services to fall below

23 minimum personal care service needs. TRO Order (Dkt. 76) at 15:19-24. That finding was

24 erroneous, see supra at 18-23, but in any event, this claim does not depend on whether services

25 will fall below the minimum, but whether a budget-driven reduction is a reasonable manner to

26 determine authorized hours.

27

Finally, no authority supports construing 42 U.S.C. § 1396a(a)(17), which requires

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1 reasonable standards to determine the “extent” of Medicaid services, as applying only to the

2 elimination of programs or eligibility. TRO Order (Dkt. 76) at 16 n. 7. Lankford invalidated a

3 State’s authorization of some optional medical equipment but not other equipment – equivalent

4 to Washington’s decision to reduce the “extent” of services authorized by reducing hours. 451

5 F.3d at 501, 511-13. And V.L. addressed not only an eligibility change but also the reduction of 6 in-home care hours for recipients who maintained eligibility. 669 F.Supp.2d at 1112, 1117-18.57

7

b. Sufficiency

8

Medicaid’s “sufficiency” requirement mandates that “[e]ach service must be sufficient in

9 amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b). While

10 States do enjoy discretion over the amount of Medicaid services, when the level of service is

11 insufficient to achieve a specific Medicaid program’s purposes, it is invalid. Curtis v. Taylor,

12 625 F.2d 645, 651 (5th Cir. 1980) (to determine whether service is sufficient, courts consider

13 whether level of service achieves specific program’s purposes); Mitchell v. Johnson, 701 F.2d

14 337, 347-51 (5th Cir. 1983) (reduction of services and frequency of dental checkups violated

15 sufficiency requirement); Lankford, 451 F.3d at 511-13 (providing some respiratory and other

16 equipment but denying coverage of other related equipment violated sufficiency); see also

17 Weaver, 886 F.2d at 197-200 (failure to cover AZT prescription); Charpentier v. Belshe, 1994

18 WL 792591, at *5 (E.D. Cal. Dec. 21, 1994) (limiting reimbursement to no more than 20% of 19 Medicare’s reasonable charge).58

20

Here, the reduced in-home hours will force some beneficiaries from their homes, while

21 putting those who stay at home at increased health risk, such that they will no longer be

22

23

57 This Court also based its conclusion on the availability of the ETR process. TRO Order (Dkt. 76) at 16

n. 7. For reasons previously explained, that process does not provide adequate protections to beneficiaries. See

24 supra at 25-26 & nn. 43-44.
58 Thus, this Court’s reliance upon Alexander v. Choate, 469 U.S. 287, 303 (1985), which explains that

25 States have flexibility in determining the amount of benefits to cover, was misplaced. TRO Order (Dkt. 76) at 17:5-

15. States’ flexibility is subject to the requirement of sufficiency set forth in 42 C.F.R. §440.230(b). Moreover,

26 Alexander explicitly did not decide whether the government action at issue in that case violated the Medicaid Act;

the Supreme Court used the language quoted by this Court in the course of deciding whether disabled individuals

27 had been deprived of required access to services in violation of the Rehabilitation Act, not the Medicaid Act. 469

U.S. at 303-04 & n.23.

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1 sufficient to fulfill the purpose of the State’s in-home personal care services programs: to enable

2 individuals to remain safely in their homes, rather than be forced into less integrated settings.

3 See, e.g., RCW 74.39.005(2), (3), (4), 74.39A.007; Brenneke Decl. Ex. 14 (Dkt. 17-4) at 7;

4 Brenneke Decl. Ex. 7 (Dkt. 13-3) at 3. Reduction of hours to “well below” those previously

5 authorized “will mean that the Washington in-home personal care services programs will no

6 longer fulfill the fundamental purpose of home and community-based care, because the

7 authorized hours will not be sufficient to permit consumers to remain safely in their homes.”

8 Reed Decl. (Dkt. 18) ¶¶44-45; see also Black Decl. (Dkt. 19) ¶32 (reduction will “undercut[] the

9 very purpose of the system”); compare V.L., 669 F.Supp.2d at 118 (elimination of authorized

10 services “will likely leave affected individuals without a level of service sufficient to achieve the

11 purpose of the program”). Department officials have previously stated that the CARE system is

12 not “designed to provide all the paid hours of personal care services that might be optimally

13 beneficial for individuals,” but that “the Department has determined that the hours generated by

14 CARE tool methodology are sufficient to address health and safety requirements.” 3rd Brenneke

15 Decl. Ex. 4 ¶9. A ten percent reduction in services that were just “sufficient” rather than

16 desirable to address health and safety requirements does not satisfy the sufficiency mandate.

17

This Court found it persuasive that Washington’s hours are more generous than some

18 other states’. TRO Order (Dkt. 76) at 17:17-18:2 & n. 8. However, Washington spends a higher

19 percentage of its long-term care spending on home and community-based services, as opposed to

20 nursing homes, than any other state. 2nd LaPlante Decl. ¶3. That means that Washington is

21 serving individuals with very serious disabilities in their own homes, which is not true in much

22 of the rest of the country. Id. As Professor LaPlante points out, that difference in acuity or

23 disability must be taken into account, and without consideration of that difference, the fact that

24 Washington has higher averages or caps on personal care hours does not mean it is any more 25 generous in relation to a particular beneficiary’s needs than other states. Id. ¶4.59

26

27

59 Freeman’s rejection of a sufficiency claim merits no weight here. The Freeman plaintiffs, who did not

seek to represent a class, challenged much smaller cuts than those at issue here and testified that they would not

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1

c. Free Choice

2

DSHS provides personal care services through COPES and other Medicaid programs

3 under Section 1915(c) and/or Section 1915(d) waivers, which are conditioned upon DSHS

4 assurances that individuals likely to require the level of care provided in a nursing facility or

5 other specified institution “are informed of the feasible alternatives” to institutional care and

6 have individual choice. 42 U.S.C. §§1396n(c)(2)(C), 1396n(d)(2)(C); see also id.,

7 §§1396n(c)(1), 1396n(d)(2)(A). Regulations require “the recipient or his or her legal

8 representative will be—(1) Informed of any feasible alternatives available under the waiver; and

9 (2) Given the choice of either institutional or home and community based services.” 42 C.F.R.

10 §441.302(d); see also 42 C.F.R. §§441.353(d), 303(d).

11

These “free choice” requirements are “constructed in such a way as to stress . . . two

12 explicitly identified rights - (a) the right to be informed of alternatives to traditional, long-term

13 institutional care, and (b) the right to choose among those alternatives.” Ball v. Rodgers, 492

14 F.3d 1094, 1107 (9th Cir. 2007) (emphasis omitted). They “mandat[e] that participating states

15 keep each eligible Medicaid recipient apprised of these non-institutional care options and afford

16 each the opportunity to choose how to live.” Id. at 1111 (emphasis omitted). “Recipients must

17 not be forced to choose between adequate health care and institutionalization.” Ball v. Biedess,

18 2004 WL 2566262, at *6-7; (D. Ariz. Aug. 13, 2004). Home-based services that are inadequate

19 to meet recipients’ needs do not constitute a “feasible alternative” to institutionalization, and so

20 violate the free choice provisions. See Ball, 492 F.3d at 1100 (low wages caused provider

21 shortage, decreased quality of care, state failed to avoid service gaps); Ball, 2009 WL 1395423,

22 at *6 (requiring specific steps to prevent gaps in service so recipients would have “actual choice

23 between in-home and institutional care”); Cramer v. Chiles, 33 F. Supp.2d 1342 (S.D. Fla. 1999)

24 (“no real choice” when beneficiary must choose between home-based option that may not meet

25

26

27 actually lose any personal care services as a result of the cuts. Def. Resp. TRO Ex. 13 (Dkt 66-2) at 17-19; see also
supra at 17-18 & n. 29.

MOTION FOR PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) 38
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 95 Filed 01/21/11 Page 40 of 42

1 needs or uncertain placement in institution).60

2

This Court correctly concluded that, if alternatives to institutional care are not feasible,

3 that violates the Medicaid free choice provision. TRO Order (Dkt. 76) at 19:13-20:1. However,

4 it wrongly rejected the claim based on its conclusion that services would remain adequate. For

5 the reasons previously discussed, see supra at 9-18, the reduced services will force many

6 beneficiaries to leave their homes or face unsafe circumstances, and so will be inadequate to

7 constitute a feasible alternative to nursing home care.

8

d. Approval of Plan Amendment

9

When a State makes material changes in its operation of the Medicaid program, it must

10 submit a plan amendment to CMS for determination of compliance with federal requirements,

11 and may not implement that plan amendment until CMS approves it. 42 CFR §§ 430.12, 430.20,

12 447.256. Similar obligations apply as conditions of Medicaid waiver programs. Brenneke Decl.

13 Exs. 7-13 (Dkts. 13-3 to 17-3) (Medicaid waiver applications, at Section 8). Implementation of a

14 plan amendment without CMS approval is unlawful, and should be enjoined. See Oregon Ass’n

15 of Homes for the Aging, Inc. v. Oregon, 5 F.3d 1239, 1241, 1244 (9th Cir. 1993); Exeter

16 Memorial Hosp. Ass’n v. Belshe, 145 F.3d 1106, 1108-09 (9th Cir. 1998); California Ass’n of

17 Rural Health Clinics v. Maxwell-Jolly, __ F.Supp.2d __, 2010 WL 4069467, at *12-14 (E.D.

18 Cal, Oct. 18, 2010). So should implementation of unapproved waiver amendments.

19

Plaintiffs have pointed to specific provisions of the State’s Medicaid plan and waivers

20 that state that personal care services hours are awarded based on individual need as determined

21 by the CARE assessment system. See Brenneke Decl. Ex. 6 Part 1 (Dkt. 13-1), Supp. 4 to Att.

22 3.1-A at 11 (DSHS will establish and follow “individualized plan of care” for personal care

23 services based on “independent assessment . . . developed by a person-centered process in

24

25

60 Under the free choice mandate, “the feasibility of alternatives should not be determined by budgetary

constraints. Feasibility must be determined by the recipient’s needs and treatment plan, and not solely by the funds

26 available to service that plan.” Benjamin H, 1999 WL 34783552, *14. Indeed, federal “legislators were adamant

that the determination of which long-term care options are feasible in a particular instance should be based on an

27 individual’s needs, as determined by an evaluation, and not short-term costs savings.” Ball, 492 F.3d at 1114

(internal quotation marks and brackets omitted).

MOTION FOR PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) 39
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:10-cv-02052-TSZ Document 95 Filed 01/21/11 Page 41 of 42

1 consultation with the individual” and “other appropriate individuals,” and this plan of care

2 “[i]dentifies the State plan HCBS necessary for the individual, and furnishes . . . all HCBS which

3 the individual needs”); Brenneke Decl. Ex. 7 (Dkt. 13-3) at 171-72 (“CARE . . . assigns base

4 hours”); Brenneke Decl. Ex. 8 (Dkt. 13-4) at 101 (same). Thus, this Court was wrong to

5 conclude that the State’s Medicaid plan “does not describe a minimum number of personal care

6 service hours or, for that matter, a method of calculating personal care service hours.” TRO 7 Order (Dkt. 76) at 20:12-15.61 Plaintiffs have shown a likelihood of success on this claim.

8

VI. CONCLUSION

9

Plaintiffs request that this Court issue a preliminary injunction, enjoining Defendants

10 from implementing emergency regulation WSR 11-02-041 pending trial on the merits.

11

12

DATED this 21st day of January, 2011.

13

MacDONALD HOAGUE & BAYLESS

ALTSHULER BERZON

14

By: _/s/ Andrea Brenneke_____________

By: _/s/ Stacy Leyton_______________

15

Andrea Brenneke, WSBA # 22027

Stacey Leyton, CABA #203827

16

Attorneys for Plaintiffs

pro hac vice Attorneys for Plaintiffs

17

18

19

20

21

22

23

24

25

26

61 The Freeman decision’s holding that no plan amendment was required was based on the Freeman

plaintiffs’ failure to identify the relevant plan and waiver provisions. See Def. Resp. TRO Ex. 13 (Dkt 66-2) at

27 13:16-16:18 (reviewing plan and waiver provisions cited by plaintiffs and determining that they do not “set[] forth

the way in which the number of personal care service hours is determined”).

MOTION FOR PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) 40
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
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Case 2:10-cv-02052-TSZ Document 95 Filed 01/21/11 Page 42 of 42

1

CERTIFICATE OF SERVICE

2

I hereby certify that on January 21, 2011, I electronically filed the foregoing to the Clerk

3 of the Court using the CM/ECF system which will send notification of such filing to the

4 following:

5

Counsel for Defendants Edward Joseph Dee

6

Assistant Attorney General 7141 Cleanwater Dr. SW

7

P.O. Box 40124 Olympia, WA 98504-0124

8

Email: edward.dee@atg.wa.gov; corrinnes@atg.wa.gov; kathya@atg.wa.gov; cherylcl@atg.wa.gov

9 William Bruce Work

10

Assistant Attorney General 7141 Cleanwater Dr. SW

11

P.O. Box 40124 Olympia, WA 98504-0124

12 Email: brucew@atg.wa.gov; corrinnes@atg.wa.gov; kathya@atg.wa.gov; cherylcl@atg.wa.gov

13

14

15 DATED this 21st day of January, 2011.
16 ALTSHULER BERZON LLP
17

18 Stacey
19
20

By: /s/ Stacey Leyton________________ Leyton, CABA #203827
pro hac vice Attorneys for Plaintiffs

21

22

23

24

25

26

27

MOTION FOR PRELIMINARY INJUNCTION (2:10-cv-02052-TSZ) 41
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MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
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 Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 1 of 25

1

2

3

4

5

6

7

The Honorable Thomas S. Zilly

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 M.R., et al.,

NO. C10-2052-TSZ

11

12

v.

Plaintiffs,

DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON DUE PROCESS CLAIMS

13 SUSAN DREYFUS, et al.,

14

Defendants.

NOTE ON MOTION CALENDAR: June 14, 2013

15

16

I. INTRODUCTION

17

Plaintiffs’ first cause of action is a claim that Defendants violated the due process rights

18 of Medicaid beneficiaries. First, Plaintiffs claim that they—along with each of the other

19 45,000 recipients of in-home personal care services in the State of Washington—had the right

20 to individual, pre-deprivation administrative hearings to challenge a system-wide reduction in

21 benefits in January 2011. The reduction at issue was a mass change that took effect

22 automatically by operation of law. Neither the Constitution nor the Medicaid Act require a

23 State to provide individual hearings prior to implementing a mass change to public benefits.

24

Second, Plaintiffs claim that they received inadequate notice of the reduction, either

25 because the notice did not include information about certain administrative processes not

26 directly related to the reduction at issue—namely exceptions to rule and significant change

DEFENDANTS’ MOTION FOR PARTIAL

1

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 2 of 25

1 assessments—or because the notice failed to include information about alternative, out-of-

2 home placements. The notice sent to Plaintiffs prior to the January 2011 reductions accurately

3 described the reduction at issue. There is no legal basis for Plaintiffs’ claim that additional

4 details about Defendants’ programs and policies should have been included. Moreover,

5 through individual notices and the promulgation of public rules, Defendants have provided

6 Plaintiffs with ample notice of the many Medicaid and non-Medicaid programs they may

7 qualify for in addition to or instead of in-home personal care services. Plaintiffs’ due process

8 claims should be dismissed as a matter of law.

9

II. PROCEDURAL HISTORY

10

Facing severe budget shortfalls in late 2010, the state Department of Social and Health

11 Services (DSHS) and its then-Secretary Susan Dreyfus announced reductions to the services

12 that would be authorized through the Medicaid in-home personal care benefit. The reduction

13 was to take effect on January 1, 2011. Plaintiffs filed suit on December 21, 2010, and moved

14 for a temporary restraining order and preliminary injunction. Dkt. 11. This Court denied the

15 motion for temporary restraining order and deferred the motion for preliminary injunction

16 pending oral argument. Dkt. 73. Plaintiffs immediately appealed the denial of the restraining

17 order to the Ninth Circuit, which issued an order staying the reductions until this Court could

18 rule on the motion for preliminary injunction. Dkt. 86-1. Following further briefing and oral

19 argument, this Court denied the motion for preliminary injunction. Dkt. 171. Among other

20 things, the Court held that Plaintiffs were not likely to succeed on the merits of their due

21 process claim. Dkt. 171, at 33 (“Plaintiffs are not entitled to notice or hearing rights for an

22 across-the-board budget reduction”).

23

Plaintiffs appealed the preliminary injunction denial to the Ninth Circuit. Their request

24 for emergency stay was denied. Dkt. 186. In an Opinion issued on December 16, 2011, a

25 divided Ninth Circuit panel reversed this Court’s order, and the reduction was preliminarily

26 enjoined as to the named Plaintiffs. Dkt. 216. Both parties subsequently petitioned the Ninth

DEFENDANTS’ MOTION FOR PARTIAL

2

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 3 of 25

1 Circuit for a panel rehearing; Defendants also petitioned for rehearing en banc. All petitions

2 were denied, though nine judges would have taken the case en banc and affirmed this Court’s

3 denial of preliminary injunction. Dkt. 234. The panel Opinion was slightly amended, and the

4 mandate issued on June 18, 2012. Dkt. 235.

5

The panel Opinion addressed only one of Plaintiffs’ claims, ruling that Plaintiffs have

6 raised serious questions going to the merits of their claim that the reduction of in-home

7 personal care services violates the Americans with Disabilities Act. While Plaintiffs’ due

8 process and Medicaid claims were briefed and argued at length, the Ninth Circuit did not reach 9 those issues. Defendants’ present motion addresses only the due process claim.1

10

III. FACTS

11

This case involves a challenge to a reduction in the amount of paid personal care

12 services the Washington State Department of Social and Health Services (DSHS) authorizes 13 for Medicaid-eligible individuals who live in their own homes.2 Personal care services are an

14 optional category of “medical assistance” that states may choose to provide under the federal

15 Medicaid Act. 42 U.S.C. § 1396d(a)(24); 42 U.S.C. § 1396a(a)(10)(A). Personal care includes

16 “a range of human assistance provided to persons with disabilities and chronic conditions of all

17 ages which enables them to accomplish tasks that they would normally do for themselves if

18 they did not have a disability.” Centers for Medicare and Medicaid Services (CMS),

19

20

21

1 Plaintiffs’ Second Amended Complaint includes eight causes of action. For summary judgment

purposes Defendants plan to address the claims in three sets. In this first motion for partial summary judgment,

22 Defendants address the due process claim. Next, Defendants will address most of Plaintiffs’ causes of action

involving the federal Medicaid Act: the “reasonable standards,” “comparability,” “CMS approval,” and “freedom

23 to choose” claims. Finally, and depending in part on aggregate data about the putative class expected to be
available by June 1, 2013, Defendants expect to file for summary judgment on the more fact-intensive Medicaid

24

“sufficiency” claim, the Americans with Disabilities Act claim, and the Rehabilitation Act claim. 2 For a more extensive discussion of the background of this case, see Defendant’s Response to Plaintiffs’

25

Motion for Preliminary Injunction, Dkt. 123, at 5-10 (discussing Washington’s Medicaid program, the CARE assessment process, and the executive decision that initiated the state’s action at issue) and Defendants’ Response

26

to Plaintiffs’ Motion for Temporary Restraining Order, Dkt. 66, at 4-6 (discussing the function and content of Washington’s Medicaid state plan).

DEFENDANTS’ MOTION FOR PARTIAL

3

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 4 of 25

1 U.S. Dep’t of Health & Human Servs., Pub. No. 45, State Medicaid Manual, § 4480.3 Personal

2 care tasks include both “activities of daily living” such as eating, bathing, dressing, and

3 toileting; and “instrumental activities” such as food preparation, housekeeping, essential

4 shopping, and telephone use. Id.; Wash. Admin. Code § 388-106-0010. In its State Plan

5 negotiated with the federal Medicaid agency, DSHS has chosen to provide personal care

6 services to qualifying Medicaid recipients. Dkt. 13-1, at 6.

7

Under state law, DSHS is required to “assess the level of functional disability of

8 persons eligible for personal care services” and provide services “to the extent funding is

9 available according to the assessed level of functional disability.” Wash. Rev. Code §

10 74.09.520(3). To implement that requirement, DSHS developed a uniform system for

11 assessing a person’s level of functional disability, known as the Comprehensive Assessment

12 Reporting Evaluation (CARE). Wash. Admin. Code § 388-106-0065. CARE was adopted in

13 2003. Wash. St. Reg. 03-05-097 (Feb. 19, 2003).

14

The CARE assessment is an interview conducted in the recipient’s home. CARE uses

15 the answers given by the recipient or other respondents to measure the recipient’s ability to

16 self-perform each activity of daily living and each instrumental activity. Wash. Admin. Code §

17 388-106-0075. CARE also measures the recipient’s cognitive performance, clinical

18 complexity, and mood and behaviors. Wash. Admin. Code § 388-106-0085. Based on those

19 results, CARE assigns each recipient to one of 17 classification groups with other individuals

20 with similar levels of disability. Each classification group is assigned a number of “base

21

22

3 According to its Foreword, the State Medicaid Manual “is an official medium by which [CMS] issues

23 mandatory, advisory, and optional Medicaid policies and procedures to the Medicaid State agencies.” It is
published online at http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Paper-Based-

24 Manuals.html as publication number 45. “Courts have accorded CMS’ interpretations of the Medicaid Act, such
as that found in the State Medicaid Manual, ‘respectful consideration’ based on the agency’s expertise, the
25 statute’s complexity and technical nature, and the broad authority delegated to the Secretary of Health and

Human Services under the [Medicaid] Act.” Katie A., ex. rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1155
26 n.11 (9th Cir. 2007) (citations omitted).

DEFENDANTS’ MOTION FOR PARTIAL

4

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 5 of 25

1 hours” of personal care per person. Wash. Admin. Code §§ 388-106-0080, -0125. Prior to the

2 reduction at issue, base hours for adults ranged from 27 to 420 hours per month. Wash. St. 3 Reg. 10-14-055 (June 30, 2010).4

4

To determine an individual recipient’s service authorization, CARE multiplies base

5 hours by a percentage representing the amount of time that unpaid “informal supports” such as

6 family or friends are available to assist the recipient. Wash. Admin. Code § 388-106-0130.

7 Extra “add-on” hours will be awarded in certain circumstances, such as if laundry equipment is

8 off-site or if the recipient’s home is heated only by firewood. Wash. Admin. Code § 388-106-

9 0130(3), as amended, Wash. St. Reg. 13-06-006 (recodifying from subsection (4)). Like the

10 initial assignment to a classification group, the post-classification adjustments are based on 11 information collected in the CARE assessment.5

12

Due to a severe budget crisis in 2010, Governor Christine Gregoire ordered an across-

13 the-board 6.287% reduction in spending for all state agencies. Dkt. 12-7, at 2-6; see Wash.

14 Rev. Code § 43.88.110(7) (requiring the governor to make “across-the-board reductions in

15 allotments” if a cash deficit is projected during a biennial fiscal period). DSHS determined

16 that Medicaid personal care services was one of the programs that could undergo modest

17 reductions without creating significant hardships for recipients. E.g., Dkt. 124, at 2-3. State

18 law specifically contemplated the possibility of funding changes to the personal care program,

19 requiring DSHS to make any reductions “in a manner that assures that priority for maintaining

20 services is given to persons with the greatest need as determined by” the CARE assessment.

21 Wash. Rev. Code § 74.09.520(3).

22

23

4 The base hours implemented in 2005 were adjusted in 2007 by adding additional classification groups

24 and increasing base hours for some groups. Wash. St. Reg. 07-18-057 (Aug. 31, 2007). Prior to the reductions in
January 2011, base hours were reduced in July 2009, Wash. St. Reg. 09-14-046 (June 24, 2009); and increased in

25

July 2010. Wash. St. Reg. 10-14-055 (June 30, 2010). 5 For participants in the New Freedom waiver program, personal care services are authorized in the form

26

of dollars per month rather than hours per month. An individual’s budget is based on the hours determined under the CARE formula multiplied by the rate paid to personal care providers. Wash. Admin. Code § 388-106-1445.

DEFENDANTS’ MOTION FOR PARTIAL

5

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 6 of 25

1

DSHS made an emergency amendment to the regulation assigning base hours to each

2 CARE classification group. Wash. St. Reg. 11-02-041 (Dec. 30, 2010).6 The amendment,

3 effective January 1, 2011, reduced base hours by an average of ten percent, with smaller

4 percentage reductions for the groups representing the highest levels of functional disability.

5 DSHS implemented the reductions based on the same classification group and post-

6 classification adjustments determined by each recipient’s most recent finalized CARE

7 assessment, but re-calculating authorized hours using the new base hours. 5th McNeill Decl.

8 ¶ 9; Cool Decl. ¶ 5.

9

Prior to the reduction, DSHS sent written notice to all personal care recipients and their

10 paid care providers explaining how the reduction would affect them individually. Dkt. 12-2,

11 12-3, 12-4, 12-5. Each letter explained the reason for the reduction and the specific change for

12 each recipient. Id. The letters to recipients noted that there was no administrative appeal right

13 to contest the program-wide change, and that the recipient’s case manager could be contacted if

14 the recipient had questions or concerns. Dkt. 12-2, 12-5. However, DSHS regulations state

15 that a recipient’s current assessment will be modified or a reassessment conducted where a

16 recipient’s situation changes significantly between annual assessments. Wash. Admin. Code

17 §§ 388-106-0050(1) (reassessment where there are significant changes to a person’s ability to

18 care for himself or herself), -0050(2) (modified assessment where, inter alia, there are changes

19 in the level of informal support available to the recipient).

20

IV. ARGUMENT

21

Plaintiffs allege that the January 2011 reductions violated their right to due process

22 guaranteed by 42 U.S.C. § 1983 and the Fourteenth Amendment, and by the Medicaid Act.

23 They specifically allege that DSHS’s notice to recipients regarding the reductions was

24 untimely, inaccurate and misleading; that DSHS failed to transition recipients to adequate

25

6 The reduction was ratified by the legislature prior to the new base hours taking effect. Dkt. 47-4, ¶ 5;

26

see 2010-11 Wash. Sess. Laws page nos. 21-35 (2d Spec. Sess., ch. 1 §§ 203-205) (amendments to state operating budget effective Dec. 11, 2010).

DEFENDANTS’ MOTION FOR PARTIAL

6

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 7 of 25

1 replacement services; that DSHS reduced personal care services without conducting

2 reassessments; and that DSHS failed to provide pre-reduction administrative hearings to each

3 recipient. Second Amended Complaint at ¶ 5.1.4 (Dkt. 188-1, at 51). Because the DSHS

4 notices were constitutionally adequate and met the relevant Medicaid requirements, Plaintiffs’

5 due process claim should be dismissed as a matter of law.

6 A. 7

Summary Judgment Standard The purpose of summary judgment is to avoid unnecessary trials when there is no

8 dispute as to the material facts before the court. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

9 251 (1986). Judgment in favor of the moving party is appropriate when, viewing the evidence

10 and inferences arising from there in the light most favorable to the nonmoving party, there are

11 no genuine issues of material fact in dispute and the moving party is entitled to judgment as a

12 matter of law. Fed. R. Civ. P. 56(c); Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1985);

13 Burlington N. R.R. Co. v. Time Oil Co., 738 F. Supp. 1339 (W.D. Wash. 1990). The party

14 seeking summary judgment bears the initial burden of demonstrating the absence of a genuine

15 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party need

16 not negate elements of the opposing party’s case. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871

17 (1990). Once the moving party has met its burden, the non-moving party must then produce

18 concrete evidence, without merely relying on allegations in the pleadings, that there remain

19 genuine factual issues. Anderson, 477 U.S. at 248.

20 B. 21 22 23

Medicaid Recipients Have No Right To Administrative Hearings To Challenge Legal Amendments That Result In A Mass Change To Benefits
1. Constitutional due process does not require individual hearings when a change to the law results in a mass change to benefits.
The U.S. Constitution provides that no State shall “deprive any person of . . . property,

24 without due process of law[.]” U.S. Const. amend. XIV, § 1. Because the receipt of public

25 benefits such as Medicaid services constitutes a property interest, a recipient must generally

26 have “timely and adequate notice detailing the reasons for a proposed termination” or

DEFENDANTS’ MOTION FOR PARTIAL

7

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 8 of 25

1 reduction of services, and a chance to challenge the termination or reduction. Goldberg v.

2 Kelly, 397 U.S. 254, 267-68 (1970). The Constitution requires individual hearings to contest

3 government action where “[a] relatively small number of persons . . . [are] exceptionally

4 affected, in each case upon individual grounds[.]” Bi-Metallic Inv. Co. v. State Bd. of

5 Equalization, 239 U.S. 441, 446 (1915).

6

In contrast, no individual hearing is required where government action affects a large

7 class of persons based on generally applicable grounds, even where the practical effect on the

8 individual is the same. Id. at 445. Where the beneficiary’s service levels are adjusted by

9 legislative action rather than on an individual basis, “a welfare recipient is not deprived of due

10 process” because “the legislative determination provides all the process that is due.” Logan v.

11 Zimmerman Brush Co., 455 U.S. 422, 432 (1982). Similarly, where the legislature delegates

12 power to an agency to promulgate law through quasi-legislative rulemaking, “due process

13 ordinarily does not demand procedures more rigorous than those provided” in the statutes

14 governing administrative procedure. Ass’n of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151,

15 1165-66 (D.C. Cir. 1979), cert. denied, 447 U.S. 921 (1980). A hearing is therefore

16 unnecessary when the reason for reduction to a service is a “mass change” to the laws

17 governing the government program, as opposed to an “individual adverse action.” Atkins v.

18 Parker, 472 U.S. 115, 129-31 (1985).

19

The seminal “mass change” case, Bi-Metallic, is analogous. In that case, property taxes

20 in Denver were increased by way of an order from the State Board of Equalization “increasing

21 the valuation of all taxable property [by] 40 per cent.” Bi-Metallic, 239 U.S. at 443. The

22 plaintiff real estate owner brought suit on the grounds that due process required an individual

23 right to be heard. Id. at 444. In rejecting that argument, the Supreme Court noted that all of

24 the property in the county had already been assessed, and that any landowner whose “property

25 has been valued at a rate different from that generally prevailing in the county . . . had his

26 opportunity to protest and appeal” that previous property assessment. Id. at 444; see

DEFENDANTS’ MOTION FOR PARTIAL

8

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 9 of 25

1 Londoner v. Denver, 210 U.S. 373, 385-86 (1908) (individual hearing right to contest initial

2 property tax assessments). Because the percentage change was taken from facts already

3 established individually and with a right to appeal, “it must be assumed that the property

4 owners in the county all stand alike.” Bi-Metallic, 239 U.S. at 444-45. The state Board’s order

5 thus could take effect automatically without individual hearings. Id. at 445. As the Court

6 noted, “[t]here must be a limit to individual argument in such matters if government is to go

7 on.” Id.

8

Here, DSHS changed the base hours of personal care for all recipients. That change in

9 the law reflected a legitimate exercise of legislative power by the Washington legislature. See

10 2010-11 Wash. Sess. Laws page nos. 21-35 (2d Spec. Sess., ch. 1, §§ 203-205) (ratifying

11 DSHS’s proposed reductions to the personal care budget). The reductions affected all

12 recipients on the same generally-applicable grounds, namely by changing the base hours for

13 each of the 17 classification groups. Like the property tax adjustment in Bi-Metallic, the base

14 hour adjustment could be made automatically based on an assessment to which recipients had

15 already been given a separate hearing right.

16

DSHS conducts individualized assessments annually for every recipient. Wash.

17 Admin. Code § 388-106-0050(1). A recipient who was, for instance, found to need only

18 limited assistance with eating could challenge that determination in a fair hearing. Wash.

19 Admin. Code § 388-106-1305. If the recipient’s eating needs significantly change between

20 annual assessments, the recipient is entitled to a new in-person assessment, also subject to

21 hearing rights. Wash. Admin. Code §§ 388-106-0050(1), -0140(1). An assessment can also be

22 modified for a number of reasons—including to note changes to the recipient’s informal

23 supports—without requiring a full new assessment. Wash. Admin. Code § 388-106-0050(2).

24

But once the facts are determined through a CARE assessment—once DSHS has made

25 factual findings regarding the recipient’s cognitive performance, clinical complexity, mood and

26 behaviors, self-performance of personal care tasks, and informal supports—the recipient’s

DEFENDANTS’ MOTION FOR PARTIAL

9

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 10 of 25

1 personal care hours flow as a matter of law. Changing the number of base hours associated

2 with the classification groups does not require DSHS to make any new factual findings that

3 would be subject to correction through a hearing process.

4

For instance, DSHS staff conducted an assessment for lead Plaintiff M.R. on June 14,

5 2010. Dkt. 26-1. Based on her functional disabilities DSHS found that she was properly

6 classified in group D Medium-High, with no reduction for informal supports and no

7 circumstances such as wood heating or off-site laundry that would result in add-on hours. Id.

8 She did not appeal those findings. 5th McNeill Decl. ¶ 30. Under the 2010 base hours, M.R.

9 thus qualified for 236 hours per month of personal care. See Wash. St. Reg. 10-14-055

10 (June 30, 2010) (increasing base hours effective July 1, 2010). Under the base hours effective

11 January 2011, she had a right to 215 hours per month. See Wash. St. Reg. 11-02-041 (Dec. 30,

12 2010). Like most members of group D Medium-High, M.R.’s hours were thus reduced by

13 8.9%, rounded to the nearest hour.7 Implementing that change did not require any additional

14 fact-finding or discretion. It was a purely mechanical application of the new law to the

15 established facts, implemented by reprogramming the CARE application. Cool Decl. ¶ 5.

16 Like the percent change to property assessments in Bi-Metallic, applying the legal change to

17 the established facts was a simple matter of multiplying the known number by a new

18 percentage. Given that M.R. did not dispute her 2010 CARE assessment within the 90-day

19 appeal deadline, when implementing the new base hours the state could validly rely on her

20 classification group and other established details from that assessment.

21

On the other hand, Plaintiff S.J. did appeal her 2010 CARE assessment. McDonough

22 Decl., Ex. A. After an evidentiary hearing and a second level of administrative review, the

23 assessment was affirmed in a final order issued on December 3, 2010. Id. DSHS could validly

24 rely on the facts established in that final order when it implemented the change to base hours

25

7 The exception is those who receive add-on hours for circumstances such as off-site laundry or wood

26

heating, or hours under an exception to rule. Unlike base hours, add-on hours and hours awarded as an exception to rule were not reduced by a percentage basis in January 2011.

DEFENDANTS’ MOTION FOR PARTIAL

10

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 11 of 25

1 just weeks later.8

2

Put another way: in light of the mass change to personal care base hours, Plaintiffs have

3 no continuing property interest in personal care services as calculated based on the pre-2011

4 base hours. Plaintiffs’ right to receive personal care services is a creation of state law, and was

5 explicitly subject to change based on funding levels. Wash. Rev. Code § 74.09.520(3) (noting

6 that personal care services “shall be provided to the extent funding is available” and providing

7 a method for implementing “reductions in services made necessary for funding reasons”).

8 Plaintiffs have no “right to the maintenance of the same level of property entitlement” that they

9 received prior to 2011 because the state retains the “power to substitute a different, less

10 valuable entitlement at a later date.” Atkins, 472 U.S. at 129 (so holding as to Congressional

11 acts); see also id. at 147-48 (Brennan, J., dissenting) (“a welfare or utility service recipient

12 whose entitlement should be reduced or terminated under relevant statutes can claim no valid

13 interest in continuation”). DSHS’s compliance with the legal procedures for agency rule-

14 making provided Plaintiffs with all the process that was due.

15

2. The Medicaid hearing requirement does not apply when a State changes

16

the regulations governing services for all recipients.

In order to qualify for federal Medicaid funding, a State must submit a plan that 17

includes provisions “granting an opportunity for a fair hearing before the State agency to any 18

individual whose claim for medical assistance under the plan is denied[.]” 42 U.S.C. § 19

1396a(a)(3). Accordingly, federal regulations generally require a pre-deprivation hearing 20

where a recipient “believes the agency has taken an action erroneously.” 42 C.F.R. § 21

431.220(a)(2). However, no hearing is required “if the sole issue is a Federal or State law 22

requiring an automatic change adversely affecting some or all recipients.” 42 C.F.R. § 23

431.220(b) (emphasis added). Washington law similarly provides that individual recipients 24

25

8 Those recipients whose most recent CARE assessments were not yet finalized due to a pending hearing

26

as of January 2011 continued to receive benefits at the prior level until those claims were resolved. 5th McNeill Decl., Ex. D at 2.

DEFENDANTS’ MOTION FOR PARTIAL

11

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 12 of 25

1 have no right to administrative hearings to challenge system-wide changes to public benefits

2 programs. Wash. Rev. Code § 74.08.080(1)(b); Wash. Admin. Code § 388-418-0020(9).

3

Under the “automatic change” provision, a Medicaid hearing right attaches only to

4 individual factual disputes. For instance, when Tennessee eliminated three of its seventeen

5 Medicaid eligibility categories, the state was not required to provide hearings to all affected

6 recipients. Rosen v. Goetz, 410 F.3d 919, 925-26 (6th Cir. 2005). The Rosen court rejected the

7 idea that a state must provide pro forma hearings to those who disagreed with the change in

8 policy, finding such “challenges to a State’s legal or policy judgment” to be “impermissible”

9 under 42 C.F.R. § 431.220(b). Rosen, 410 F.3d at 926; see also Benton v. Rhodes, 586 F.2d 1,

10 3 (6th Cir. 1978), cert. denied sub. nom. Wisebaker v. Rhodes, 440 U.S. 973 (1979) (“when a

11 state decides to terminate optional [Medicaid] benefits on the basis of lack of appropriated

12 funds . . . this is a matter of state law or policy” that is “not subject to any hearing

13 requirements”).

14

Rosen does differ from this case in a key respect: Tennessee could not implement its

15 change automatically. While Tennessee’s changes meant that many individuals would lose

16 Medicaid coverage altogether, some individuals would still qualify under a different category

17 with different eligibility criteria. As a result, the state asked affected recipients to complete a

18 form and submit documents that might support continuing Medicaid eligibility under a

19 different category. Rosen, 410 F.3d at 923. The new information and documents necessarily

20 were considered on a case-by-case basis, with the potential for individual factual disputes that

21 are properly the subject of individual administrative hearings. If a recipient was denied

22 coverage under a different category of Medicaid coverage and raised a “valid factual dispute”

23 about that coverage, the state would provide a hearing. Id. at 929; see also Greene v. Babbitt,

24 64 F.3d 1266, 1273 (9th Cir. 1995) (where Congress “narrowed eligibility” for a public

25 benefits program by adding a new requirement, a hearing was required “to determine whether

26 those previously eligible can meet the new and narrowed requirements”).

DEFENDANTS’ MOTION FOR PARTIAL

12

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 13 of 25

1

In contrast, DSHS required no new information to institute the reductions in this case.

2 As illustrated above, implementing the new base hours rule involved simply inserting a new

3 number into the existing equation, based on assessments to which recipients had a separate

4 hearing right and which could be updated at any time to reflect significant changes. This case

5 is therefore properly distinguished from those cases where a change in the law resulted in

6 individual adverse actions based on indeterminate changes to individual benefits. Where a

7 state issues Medicaid notices “not . . . to inform recipients of the reasons for their prior

8 individualized coverage determinations, but only to inform those for whom such

9 determinations have previously been made of changes to their programs,” no individual

10 hearing is required. Wood v. Betlach, __ F. Supp. 2d __, 2013 WL 474369, *16 (D. Ariz.

11 2013). The January 2011 amendment to base hours could be automatically implemented based

12 on each recipient’s previously-determined classification group, informal support multiplier,

13 and add-on hours. DSHS was not required to offer pre-reduction individual hearings to all

14 45,000 recipients before implementing the automatic change.

15

3. Plaintiffs’ proposed “cascading effects” exception to the mass change

16

doctrine is unworkable and unsupported by law.

Plaintiffs have argued that a system-wide reduction to personal care services would 17

create “cascading effects” of changes to the recipient’s situation—thus requiring individual 18

determination of these new, changed facts before the new law can take effect. Their proposed 19

exception to the general mass change rule is unworkable, as well as inconsistent with case law. 20

Plaintiffs conflate changed circumstances with the types of factual disputes that give 21

rise to a hearing right prior to implementation of a new law. Plaintiffs have failed to bring 22

forward evidence that the 2011 reduction to personal care services triggered changes to the 23

health, care needs, or informal supports of recipients. Even assuming for the sake of argument 24

that those allegations were true, such changes are not disputes about pre-reduction facts that 25

would prevent an automatic implementation of the new base hours. If an individual’s care 26

DEFENDANTS’ MOTION FOR PARTIAL

13

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 14 of 25

1 needs change significantly between assessments, DSHS will conduct an interim in-person

2 CARE assessment. Wash. Admin. Code § 388-106-0050(1). If the individual’s informal

3 supports change, DSHS will modify the previous assessment without the requirement for

4 another in-person visit. Wash. Admin. Code § 388-106-0050(2)(c). When an assessment is

5 modified or an interim assessment conducted, the recipient has the right to an individual

6 hearing to dispute DSHS’s factual determinations. Wash. Admin. Code §§ 388-106-0050(3),

7 -1305. But in those cases, the facts in dispute are those related to the interim or modified

8 assessment, not any legal change that the recipient may allege was a precipitating factor.

9

Again, Bi-Metallic is instructive. The Supreme Court held that the plaintiff landowner

10 had no right to an individual hearing to contest the state’s valuation of its property when made

11 as an across-the-board percentage increase from the prior assessed value. 239 U.S. at 445-46.

12 Like any other fact, property values are subject to change over time. One might also expect

13 that the tax rate on a property could have downstream effects on the property’s value. Yet the

14 Court was satisfied that due process was served by the state’s reliance on the most recent

15 property assessment. Whether the property right involved is real property or government

16 benefits, once the relevant facts have been determined through appropriate process there is no

17 need to revisit those facts before implementing across-the-board changes to the law. See

18 Wash. Rev. Code § 74.08.080(2)(a) (public assistance benefits decisions become final if not

19 appealed within 90 days); Kingery v. Dep’t of Labor & Indus., 132 Wn.2d 162, 169, 937 P.2d

20 565 (1997) (“An unappealed [agency] order is res judicata”).

21

Moreover, the rule Plaintiffs propose is nonsensical when applied to the CARE tool.

22 When DSHS conducts an assessment, the availability of informal supports factors into the

23 hours of personal care that will be authorized: determining the unpaid assistance available is a

24 necessary step toward determining the paid hours. Wash. Admin. Code § 388-106-0130(2).

25 Plaintiffs’ argument that informal supports must be measured after the authorized hours are

26 known would thus set up a logical paradox: DSHS could not determine the service hours

DEFENDANTS’ MOTION FOR PARTIAL

14

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 15 of 25

1 without measuring informal supports, yet could not determine informal supports without

2 knowing how many hours would be authorized. That chicken-and-egg quandary is entirely

3 unnecessary given the availability of modified assessments to account for post-assessment

4 changes to informal supports. Until such a modification is requested, DSHS may validly rely

5 on facts established at the prior CARE assessment.

6 C. DSHS Provided Plaintiffs With Adequate Notice Of The System-Wide Service

7

Reduction

In addition to their claim that they should have been provided individual hearings prior 8

to the reduced base hours taking effect, Plaintiffs claim that the notice they received was 9

insufficient. Specifically, Plaintiffs have argued they should have been notified of DSHS’s 10

exception-to-rule process, the availability of significant change reassessments, and the 11

availability of other Medicaid services including out-of-home placement. Dkt. 95, at 25-29. 12

For the most part, those claims are disconnected from their protected property interest in 13

personal care services as defined under Washington law. To the extent that their claims are 14

linked to their actual protected interests, the notice was more than adequate. 15

16

1. DSHS met all Medicaid notice requirements.

17

a. The notice DSHS sent to Plaintiffs met the requirements of the Medicaid notice regulation.

18

Medicaid regulations require a participating state to provide notice to a recipient of

19 “any action affecting his or her claim.” 42 C.F.R. § 431.206(c)(2). The term “action” includes

20 “a reduction of . . . covered services.” 42 C.F.R. § 431.201. The notice must be sent at least

21 ten days prior to the proposed action, id. at § 431.211, and must contain:

22

(a) A statement of what action the State . . . intends to take;

23

(b) The reasons for the intended action;

(c) The specific regulations that support, or the change in Federal or State law

24

that requires, the action;

(d) An explanation of—

25

(1) The individual's right to request an evidentiary hearing if one is

26

available, or a State agency hearing; or

DEFENDANTS’ MOTION FOR PARTIAL

15

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 16 of 25

1

(2) In cases of an action based on a change in law, the circumstances

2

under which a hearing will be granted; and (e) An explanation of the circumstances under which Medicaid is continued if a

3

hearing is requested.

4 Id. at § 431.210. Notably, those regulations do not specifically require individualized reasons

5 for the reduction. See Rosen, 410 F.3d at 931 (holding that Medicaid termination notices did

6 not violate 42 C.F.R. § 431.210 or due process when they did not include “specific,

7 individualized reasons supporting the agency’s conclusions”).

8

The notices sent by DSHS met or exceeded those required elements. They explained

9 (a) the specific impact on each individual recipient, (b) the revenue shortfall prompting the

10 reductions, (c) the Governor’s order that supplied the legal basis for the mass change to the

11 rules, (d) the fact that no individual evidentiary hearings were available to contest the change

12 in law and thus (e) that no continuing benefits were available. See Dkt. 12-2 (notice to in-

13 home personal care recipients including individual notice of new hours); Dkt. 12-4 (notice to

14 New Freedom waiver recipients including individual notice of new personal care budget). The

15 notices were mailed between December 7 and December 14, 2010, providing more than ten

16 days’ notice. 5th McNeill Decl. ¶ 13. The Medicaid notice requirement was fully met.

17

b. The Medicaid waiver “feasible alternatives” rule does not require a state to provide notice regarding the availability of institutional

18

placement when implementing a mass change to personal care benefit levels.

19

Plaintiffs also argue that DSHS’s notices were insufficient because they failed to

20 inform Plaintiffs of their option to choose to receive services in other settings outside their

21 homes. Defendants had already informed Plaintiffs of their service options when they chose to

22 enroll in their in-home Medicaid programs.

23

42 U.S.C. § 1396n(c)(2) and 42 C.F.R. § 441.302 provide that a state must make

24 various assurances that are satisfactory to the federal Centers for Medicare and Medicaid

25 (CMS) in order to obtain a federal waiver allowing the state to offer Medicaid services outside

26

DEFENDANTS’ MOTION FOR PARTIAL

16

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 17 of 25

1 of institutional settings. One of those assurances is that the state will inform recipients who

2 qualify for an institutional level of care of the waiver’s “feasible alternatives” to receiving

3 services in a hospital, nursing home, or similar facility. 42 U.S.C. §§ 1396n(c)(2)(C),

4 1396n(d)(2)(C); 42 C.F.R. § 441.302(d)(1). CMS directs states to include that assurance in

5 any waiver application, including a description of how the client’s choice will be documented.

6 CMS, Pub. No. 45, State Medicaid Manual § 4442.7.9 Once a recipient has been given the

7 choice between institutional or home- and community-based services, the state has met its

8 obligation. Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 459 (7th Cir. 2007) (dismissing

9 42 U.S.C. § 1396n(c)(2)(C) claim where the recipient was not “kept ignorant of options open

10 to him”); see also Doe v. Kidd, 501 F.3d 348, 359 (4th Cir. 2007) (dismissing 42 C.F.R. §

11 441.302(d)(2) claim where the waiver recipient “has already been given” that choice).

12

The “feasible alternatives” statutes are intended to ensure that Medicaid recipients are

13 aware of alternatives to institutional care. In this case, every affected recipient is already

14 receiving non-institutional care. It is self-evident that Plaintiffs have been informed of the

15 availability of home care that they have already chosen.

16

Moreover, DSHS has adopted procedures meeting the federal requirements to the

17 satisfaction of CMS, which has approved DSHS’s Medicaid waiver programs. For instance,

18 the COPES waiver explains that DSHS uses its “Acknowledgement of Services” form (Form

19 14-225) to document the recipient’s freedom to choose between institutional and home and

20 community-based services. 5th McNeill Decl., Ex. B. Per that assurance to CMS, DSHS

21 requires recipients to complete the acknowledgement form when electing to receive services

22 under the COPES waiver, or when the recipient’s living situation changes. 5th McNeill Decl.

23 ¶ 5. There is no support for Plaintiffs’ claim that such notice must be provided more often.

24

25

9 Online at http://www.cms.gov>Regulations and Guidance>Manuals> Paper Based Manuals> Publication #45>Chapter 4 -- Services> “sm 04 4 4440 to 4444.doc”; at https://www.lexis.com>Legal>

26

Secondary Legal>CCH>Health Law>CMS Program Manuals>CCH CMS Program Manuals P 4442.7; and at Westlaw.com under the CCH-CMSMAN database.

DEFENDANTS’ MOTION FOR PARTIAL

17

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

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1

The Plaintiffs who participate in a waiver program have each signed form 14-225 or a

2 similar notice. 5th McNeill Decl. ¶ 7, Ex. C. Moreover, while 42 U.S.C. § 1396n(c)(2) applies

3 only to waiver programs, even the Plaintiffs receiving personal care services under

4 Washington’s non-waiver state plan program have received notice of their institutional,

5 community, and in-home care options. E.g., 5th McNeill Decl. ¶ 3. Plaintiffs merely complain

6 that they were not reminded of that information. Such reminders are not required by Medicaid

7 law. The notices previously received by Plaintiffs are enough to defeat their notice claim to

8 the extent it is predicated on the “feasible alternatives” requirement.

9

2. DSHS provided constitutionally adequate notice.

10

Determining the process due under the Constitution generally requires balancing three

11 factors: the private interest affected; the risk of error and the value of additional safeguards;

12 and the burdens of imposing additional procedural requirements. Mathews v. Eldridge, 424

13 U.S. 319, 334-35 (1976). Before depriving an individual of a protected property interest, the

14 state must provide notice “reasonably calculated, under all the circumstances, to apprise

15 interested parties of the pendency of the action and afford them an opportunity to present their

16 objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see

17 Dunsenbery v. United States, 534 U.S. 161, 167–68 (2002) (Mullane rather than Mathews

18 “supplies the appropriate analytical framework” to determine the adequacy of notice).

19 However, where government benefits are adjusted by a change to the governing regulations,

20 the regulatory determination must be considered as part of the process provided. See Atkins,

21 472 U.S. at 130. Where a mass change results in a reduction to individual benefits, the notice

22 is adequate if “individual notices [are] sent to all affected recipients and . . . the notice informs

23 recipients of the change.” Ireson v. Chater, 899 F. Supp. 446, 450 (N.D. Cal. 1995) (citing

24 Atkins, 472 U.S. at 126). The notice language requested by Plaintiffs goes well beyond the

25 demands of due process.

26

DEFENDANTS’ MOTION FOR PARTIAL

18

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

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1

a. Plaintiffs’ protected property interest in receiving personal care

services is limited by state law to those hours generated through the

2

CARE assessment.

3

Because Plaintiffs base their claims in part on benefits in which they have no protected

4 property interest, we begin by identifying the relevant private interest in this case.

5

The Fifth and Fourteenth Amendments prohibit the government from depriving a

6 person of property without due process of law. U.S. Const. amends. V, XIV. To establish that

7 he or she has a protected property interest in a particular public assistance benefit, “a person

8 clearly must have more than an abstract need or desire for it. . . . [or] a unilateral expectation of

9 it. He [or she] must, instead, have a legitimate claim of entitlement to it.” Board of Regents of

10 State Colleges v. Roth, 408 U.S. 564, 577 (1972). A claim of entitlement to benefits must be

11 “grounded in the statute defining eligibility for them.” Id.; see also Atkins, 472 U.S. at 143

12 (Brennan, J., dissenting) (“Because [public assistance benefits] are a matter of statutory

13 entitlement, recipients may claim a property interest only in the level of benefits to which they

14 are entitled under the law, as calculated under whatever statutory formula is provided.”). Thus,

15 whether a particular public assistance benefit qualifies as a protected property interest depends

16 on whether the statutes that create it, and the regulations that implement it, give rise to “a

17 legitimate claim of entitlement to it.” Roth, 408 U.S. at 577. In Association of Orange County

18 Deputy Sheriffs v. Gates, 716 F.2d 733, 734 (1983), cert. denied, 466 U.S. 937 (1984), the

19 Ninth Circuit elaborated on Roth by noting that “[a] reasonable expectation of entitlement is

20 determined largely by the language of the statute and the extent to which the entitlement is

21 couched in mandatory terms.” (Emphasis added).

22

Federal law does not entitle Plaintiffs to personal care services. Those services are an

23 optional category of medical assistance that Medicaid-participating states choose whether to

24 provide. 42 U.S.C. §§ 1396d(a)(24) (defining personal care), (a)(10)(A) (listing mandatory

25 categories of Medicaid assistance). The scope of any protected property interest in personal

26 care services is thus defined purely as a matter of state law.

DEFENDANTS’ MOTION FOR PARTIAL

19

SUMMARY JUDGMENT ON DUE

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ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

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1

In 1989 Washington’s legislature added personal care services to the list of medical

2 assistance provided to Medicaid recipients. 1989 Wash. Sess. Laws page nos. 2335-2336

3 (ch. 427, § 10). DSHS was ordered to adopt “such administrative rules as are necessary to

4 ensure that [Medicaid] personal care services are provided to eligible persons in conformance

5 with federal regulations” including financial and medical eligibility. Wash. Rev. Code §

6 74.09.520(3) (1989). The level of benefits is explicitly conditioned on the availability of funds:

7

The department shall design and implement a means to assess the level of

8

functional disability of persons eligible for personal care services under this

section. The personal care services benefit shall be provided to the extent

9

funding is available according to the assessed level of functional disability.

Any reductions in services made necessary for funding reasons should be

10

accomplished in a manner that assures that priority for maintaining services is

11

given to persons with the greatest need as determined by the assessment of functional disability.

12 Wash. Rev. Code § 74.09.520(4) (1989) (emphasis added). That statutory language remains

13 unchanged to this day. Wash. Rev. Code § 74.09.520(3) (2013).

14

DSHS has exercised its statutory authority to set personal care benefits levels through

15 the CARE formula described in its administrative rules. E.g. Wash. Admin. Code § 388-106-

16 0135 (describing the “maximum hours that [a recipient] may receive”). The CARE formula is

17 the only place in Washington law where an entitlement to personal care services “is couched in

18 mandatory terms.” For the purposes of a due process analysis, the service level described in

19 the CARE rules is the relevant private interest. Plaintiffs can have no legitimate claim to

20 benefits except as determined based on their “assessed level of functional disability”—that is,

21 as determined by the CARE formula—and even then only “to the extent funding is available.”

22

b. Plaintiffs were not entitled to notice of the Department’s purely

23

discretionary ability to authorize additional services beyond those to which Plaintiffs had a protected property interest.

24

Plaintiffs allege that Defendants’ notices informing recipients of the personal care

25 reductions violated due process by failing to inform recipients of DSHS’s Exception To Rule

26

DEFENDANTS’ MOTION FOR PARTIAL

20

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 21 of 25

1 (ETR) process, which can be used to provide an exception to the normal limits on services

2 including Medicaid personal care. Simply put, the ETR process was not implicated in the mass

3 change to base hours any more than it is implicated any time DSHS enforces a rule; DSHS is

4 not required to notify recipients of the ETR process every time it enforces a rule to which

5 exceptions are sometimes made. Moreover, DSHS’s discretion to grant exceptions to its rules

6 is explained in an agency rule promulgated as law. Even without individual notice, Plaintiffs

7 may be presumed to have been aware of the ETR rule because “[a]ll citizens are presumptively

8 charged with knowledge of the law.” Atkins, 472 U.S. at 130.

9

Plaintiffs further argue that recipients have a due process right to contest any denial of

10 exceptional hours. That claim also fails. As described above, Plaintiffs’ interest in personal

11 care services extends only to those described in the CARE rules, not to exceptional services

12 that may be available through a suspension of those rules.

13

The ETR rule reads in its entirety:

14

(1) The secretary of the department, or designee, authorizes department staff to

15

request an exception to a rule in the Washington Administrative Code

(WAC) for individual cases, except as noted in subsection (5) of this

16

section, when:

(a) The exception would not contradict a specific provision of federal law

17

or state statute; and

18

(b) The client's situation differs from the majority; and (c) It is in the interest of overall economy and the client's welfare; and

19

(d) It increases opportunities for the client to function effectively; or

(e) A client has an impairment or limitation that significantly interferes

20

with the usual procedures required to determine eligibility and

payment.

21

(2) The secretary or the secretary's designee makes the final decision on all

22

requests for exceptions to a rule. (3) Clients have no fair hearing rights as defined under chapter 388-02 WAC

23

regarding exception to rule decisions by department staff.

(4) Clients who do not agree with a decision on an exception to rule may file a

24

complaint according to chapter 388-426 WAC.

(5) This section does not apply to requests for noncovered medical or dental

25

services or related equipment. See WAC 388-501-0160.

26 Wash. Admin. Code § 388-440-0001. DSHS provides written notice of decisions regarding

DEFENDANTS’ MOTION FOR PARTIAL

21

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 22 of 25

1 exceptions to rule. Wash. Admin. Code § 388-440-0005. But by its terms, the ETR rule does

2 not provide hearings to those who disagree with DSHS’s decision not to grant an exception to a

3 particular rule in an individual case. Wash. Admin. Code § 388-440-0001(3).

4

The rules governing personal care services specifically note that an ETR may be

5 granted for “in-home personal care hours in excess of the amount determined to be available to 6 you by the CARE tool.” Wash. Admin. Code § 388-106-0140(2).10 However, the ETR

7 process is not specific to personal care services; it allows DSHS the flexibility to make an

8 exception to nearly any program rule when warranted by compelling individual circumstances.

9

The ETR process thus allows DSHS to provide benefits beyond those to which

10 recipients have a legitimate entitlement. Under the CARE tool and its associated regulations,

11 Plaintiffs have already been authorized personal care services to the extent they are legally

12 eligible. Wash. Admin. Code § 388-106-0135. The total services available were at all times

13 subject to the availability of funding. Wash. Rev. Code § 74.09.520(3). Plaintiffs can have no

14 legitimate claim to services that would require the suspension of the rules governing benefits

15 levels. An individual who is not currently receiving personal care services through an ETR has 16 no “legitimate claim of entitlement” and thus no property interest in those additional benefits.11

17

DSHS’s discretionary ability to offer additional services in individual cases does not

18 create any legally protected property interest implicating due process. DSHS was not required

19 to notify Plaintiffs of the ETR process prior to implementing a mass change to base hours.

20

21
10 Prior to 2013, requests by recipients for additional hours were vetted by the recipient’s case manager

22 and the regional DSHS office before being forwarded for review by the ETR committee. Case managers

requested ETRs for about four percent of all personal care recipients, and about eight-eight percent of requests

23 were approved in whole or in part. Dkt. 170, ¶¶ 9, 14. The Department has since changed its procedure such that
any recipient’s request for additional hours will be reviewed by the ETR committee. DSHS Home and

24 Community Services, Management Bulletin No. H13-001, “Exception to Rule Requests for In-home Personal
Care Services” (Jan 9, 2013), available at https://fortress.wa.gov/dshs/adsaapps/Professional/MB/

25

Default.aspx?year=2013. 11 Conversely, Wash. Admin. Code § 388-106-1315(1) provides a hearing right for the termination or

26

reduction of services authorized through an ETR to which a recipient may have a property interest by virtue of already receiving those services.

DEFENDANTS’ MOTION FOR PARTIAL

22

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 23 of 25

1

c. Plaintiffs were not entitled to notice of the availability of a new

CARE assessment when DSHS instituted the across-the-board

2

service reduction.

3

CARE assessments are normally conducted annually, but will also be conducted where

4 a person’s ability to care for himself or herself changes significantly during the course of the

5 year. Wash. Admin. Code § 388-106-0050(1). An assessment can also be modified without an

6 in-person interview, for instance to account for “[c]hanges in the level of informal support

7 available” to the recipient. Wash. Admin. Code § 388-106-0050(2). Plaintiffs claim that

8 DSHS was required to notify them that they could request additional personal care hours if

9 their circumstances changed as a result of the January 2011 base hour reductions. No such

10 notice was required, especially given that Plaintiffs already had been given notice of their

11 responsibility to bring significant changes to DSHS’s attention.

12

All personal care recipients in Washington receive and sign a form summarizing their

13 “rights and responsibilities” under DSHS programs. 5th McNeill Decl. ¶ 3, Ex. A. That form

14 instructs recipients to “[t]ell your social service worker if there is a change in: Your medical

15 condition; [or] The help you get from family or other agencies[.]” Id., Ex. A. Even without

16 such individual notice, Plaintiffs may be presumed to have known of the availability of new or

17 modified CARE assessments. Recipients may always request a new assessment due to

18 changed circumstances, regardless of what may have directly or indirectly precipitated the

19 change. See Wash. Admin. Code § 388-106-0050(2)(c). Moreover, DSHS generally has no

20 way of knowing if there is a change to a recipient’s circumstances unless the recipient provides

21 that information to DSHS staff. Recipients thus have the responsibility to notify a DSHS

22 social worker of any changed circumstances, specifically including changes to the recipient’s

23 medical condition or unpaid assistance available. Wash. Admin. Code § 388-106-1303(6)(a),

24 (6)(b). Again, Plaintiffs may be presumed to have been aware of those regulations because

25 “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins, 472 U.S. at 130.

26

DEFENDANTS’ MOTION FOR PARTIAL

23

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 24 of 25

1

Plaintiffs are correct that CARE modifications or reassessments would entail agency

2 factual findings that recipients could challenge in administrative hearings. And Plaintiffs

3 would of course have a right to appeal such individual assessments. Unlike the mass change to

4 base hours at issue in this case, annual assessments and reassessments prompted by significant

5 changes are individualized determinations. However, the fact that Plaintiffs would have a

6 hearing right to challenge subsequent individual actions does not create a right to challenge the

7 system-wide reductions at issue in this case. See Jeneski v. Myers, 163 Cal. App. 3d 18, 32,

8 209 Cal. Rptr. 178 (1984) (differentiating between the lack of appeal right to mass Medicaid

9 reductions and the appeal right to subsequent agency decisions). “There must be a limit to

10 individual argument in such matters if government is to go on.” Bi-Metallic, 239 U.S. at 445.

11

V. CONCLUSION

12

Plaintiffs’ due process claim is entirely a legal question properly determined under

13 summary judgment. Because there is no merit to Plaintiffs’ legal arguments for additional

14 notice, their first cause of action should be dismissed.

15

RESPECTFULLY SUBMITTED this 23rd day of May 2013.

16

ROBERT W. FERGUSON

17

Attorney General

18

s/ Jonathon Bashford

19

JONATHON BASHFORD, WSBA No. 39299 WILLIAM BRUCE WORK, WSBA No. 33824

20

EDWARD J. DEE, WSBA No. 15964 JOHN McILHENNY, WSBA No. 32195

21

Assistant Attorneys General Attorneys for Defendants

22

Office of the Attorney General

23

7141 Cleanwater Drive SW P.O. Box 40124

24

Olympia, WA 98504-0124 Phone: 360-586-6565

25

E-mail Addresses: JonB@atg.wa.gov Bruce.Work@atg.wa.gov

26

Edward.Dee@atg.wa.gov JohnM5@atg.wa.gov

DEFENDANTS’ MOTION FOR PARTIAL

24

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269 Filed 05/23/13 Page 25 of 25

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 23, 2013, I electronically filed the foregoing with the Clerk

3 of the Court using the CM/ECF system, which will send notification of such filing to the

4 following:
5

6

Katrin Frank:

kayf@mhb.com

7

Stacey Leyton:

sleyton@altshulerberzon.com

8

Regan Rush:

regan.rush@usdoj.gov

9

10

s/ Jonathon Bashford JONATHON BASHFORD, WSBA No. 39299

11

Office of the Attorney General 7141 Cleanwater Drive SW

12

P.O. Box 40124 Olympia, WA 98504-0124

13

Phone: 360-586-6565

14

15

16

17

18

19

20

21

22

23

24

25

26

DEFENDANTS’ MOTION FOR PARTIAL

25

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS -- NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269-1 Filed 05/23/13 Page 1 of 3

1

2

3

4

5

6

7

The Honorable Thomas S. Zilly

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 M.R., et al.,

NO. C10-2052-TSZ

11

Plaintiffs,

12

v.

13 SUSAN DREYFUS, et al.,

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON DUE PROCESS CLAIMS

14

Defendants.

15 THIS MATTER came before the court on Defendants’ Motion for Partial Summary
16 Judgment on Due Process Claims and the accompanying declarations and exhibits in support
17 of Defendants’ Motion for Partial Summary Judgment. The Court having considered
18 Defendants’ motion, Plaintiffs’ response, if any, and the records and files herein, and being
19 fully advised, orders as follows:
20 IT IS HEREBY ORDERED
21 That Defendants’ Motion for Partial Summary Judgment on Due Process Claims is
22 granted.
23 DATED this _____ day of May 2013.
24

25

UNITED STATES DISTRICT JUDGE

26

[PROPOSED] ORDER GRANTING

1

DEFENDANTS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269-1 Filed 05/23/13 Page 2 of 3

1 Presented by:

2 ROBERT W. FERGUSON Attorney General
3

4 s/ Jonathon Bashford JONATHON BASHFORD, WSBA No. 39299
5 WILLIAM BRUCE WORK, WSBA No. 33824 EDWARD J. DEE, WSBA No. 15964
6 JOHN McILHENNY, WSBA No. 32195 Assistant Attorneys General
7 Attorneys for Defendants

8 Office of the Attorney General

7141 Cleanwater Drive SW

9 P.O. Box 40124

Olympia, WA 98504-0124

10 Phone: 360-586-6565

Attorneys’ E-mail Addresses:

11

Edward.Dee@atg.wa.gov

Bruce.Work@atg.wa.gov

12

JonB@atg.wa.gov

johnM5@atg.wa.gov

13

14

15

16

17

18

19

20

21

22

23

24

25

26

[PROPOSED] ORDER GRANTING

2

DEFENDANTS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:10-cv-02052-TSZ Document 269-1 Filed 05/23/13 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 23, 2013, I electronically filed the foregoing with the Clerk

3 of the Court using the CM/ECF system which will send notification of such filing to the

4 following:
5

6

Katrin Frank:

kayf@mhb.com

7

Stacey Leyton:

sleyton@altshulerberzon.com

8

Regan Rush:

regan.rush@usdoj.gov

9

s/ Jonathon Bashford

10

JONATHON BASHFORD, WSBA No. 39299 WSBA No. 33824

11

Office of the Attorney General 7141 Cleanwater Drive SW

12

P.O. Box 40124 Olympia, WA 98504-0124

13

Phone: 360-586-6565

14

15

16

17

18

19

20

21

22

23

24

25

26

[PROPOSED] ORDER GRANTING

3

DEFENDANTS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT ON DUE

PROCESS CLAIMS NO. C10-2052-TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

 
 Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 1 of 17
U.S. District Court Western District of Pennsylvania (Erie) CIVIL DOCKET FOR CASE #: 1:06−cv−00078−BR

CLOSED

VOICES FOR INDEPENDENCE, (VFI) ET AL v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ET AL Assigned to: Judge Barbara Rothstein related Cases: 1:02−cv−00203−SPB
1:04−cv−00328−BR
1:11−cv−00016−MRH
Case in other court: Third Circuit, 07−04195
Third Circuit, 07−04319 Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 03/28/2006 Date Terminated: 03/11/2009 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

VOICES FOR INDEPENDENCE, (VFI)

represented by Craig A. Markham Elderkin, Martin, Kelly & Messina 150 East Eighth Street Erie, PA 16501−1819 (814) 456−4000 Fax: (814) 454−7411 Email: camarkham@elderkinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan Heberle & Finnegan 2580 Craig Road Ann Arbor, MI 48103 (734) 302−3233 Email: hffirm@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MICHAEL L. EAKIN

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAY SHUFFSTALL

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff CAROLYN A. CREHAN

represented by

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 2 of 17

Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff KATHY A. HERTZOG

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PAUL PECUNAS

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff SANDRA FULLER

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MARY ANN PARSNIK

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PAT WEAVER

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 3 of 17

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FELICIA BONGIORNO

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MELVIN BORREO

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff STEPHEN CLARK

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JILL HRINDA−PATTEN

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MARY KRUG

represented by Craig A. Markham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
B. LYNNE VESTAL on behalf of themselves and all others

represented by Craig A. Markham (See above for address)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 4 of 17

similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Mark Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
Defendant ALLEN D. BIEHLER P.E., in his official capacity as Secretary of Transportation of the Commonwealth of Pennsylvania Defendant CITY OF ERIE, PENNSYLVANIA
Defendant CITY OF MEADVILLE, PENNSYLVANIA

represented by Scott A. Bradley Office of the Attorney General Litigation Section 1251 Waterfront Place Mezzanine Level Pittsburgh, PA 15222 (412) 565−3586 Email: sbradley@attorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Bradley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald J. Villella Dailey, Karle & Villella 900 State Street Suite 310 Erie, PA 16501 (814) 453−4651 Email: gvillella@erie.pa.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David L. Hotchkiss Steptoe & Johnson PLLC 201 Chestnut Street Suite 200 Meadville, PA 16335 (814) 336−6400 Email: Dave.Hotchkiss@Steptoe−Johnson.com TERMINATED: 06/21/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Alizzeo Shafer Law Firm 360 Chestnut St. Meadville, PA 16335 814−724−4540 Fax: 814−724−4545 Email: galizzeo@shaferlaw.com ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 5 of 17

03/28/2006
03/28/2006 05/26/2006 05/26/2006 05/26/2006 05/26/2006 05/30/2006
05/30/2006 05/30/2006 06/29/2006 06/29/2006 06/30/2006 06/30/2006

1 COMPLAINT against all defendants ( Filing fee $ 250 receipt number 06−279.), filed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Attachments: # 1 Civil Cover Sheet # 2 Summons # 3 Receipt of payment)(sdp) (Entered: 03/28/2006)
Summons Issued as to COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (sdp) (Entered: 03/28/2006)
2 SUMMONS/Return of Service Returned Executed by FELICIA BONGIORNO. COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL served on 3/30/2006, answer due 4/19/2006. (Attachments: # 1 Affidavit service)(Markham, Craig) Modified on 5/30/2006 to edit office served(dm). (Entered: 05/26/2006)
3 SUMMONS/Return of Service Returned Executed by FELICIA BONGIORNO. ALLEN D. BIEHLER served on 4/6/2006, answer due 4/26/2006. (Attachments: # 1 Affidavit service)(Markham, Craig) (Entered: 05/26/2006)
4 SUMMONS/Return of Service Returned Executed by FELICIA BONGIORNO. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION served on 4/6/2006, answer due 4/26/2006. (Attachments: # 1 Affidavit service)(Markham, Craig) (Entered: 05/26/2006)
5 SUMMONS/Return of Service Returned Executed by FELICIA BONGIORNO. COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL served on 4/3/2006, answer due 4/26/2006. (Attachments: # 1 Affidavit service)(Markham, Craig) Modified on 5/30/2006 to edit office served (dm). (Entered: 05/26/2006)
6 MOTION for Extension of Time to File Answer re 1 Complaint, filed by KATHY A. HERTZOG,, MARY ANN PARSNIK,, MICHAEL L. EAKIN,, MARY KRUG,, PAUL PECUNAS,, SANDRA FULLER,, FELICIA BONGIORNO,, STEPHEN CLARK,, VOICES FOR INDEPENDENCE, (VFI),, JAY SHUFFSTALL,, CAROLYN A. CREHAN,, MELVIN BORREO,, JILL HRINDA−PATTEN,, B. LYNNE VESTAL, by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (Attachments: # 1 Proposed Order)(Bradley, Scott) (Entered: 05/30/2006)
7 MOTION for Extension of Time to File Answer by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (Attachments: # 1 Proposed Order)(Bradley, Scott) (Entered: 05/30/2006)
8 ORDER granting 6 Motion for Extension of Time to Answer COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION answer due 6/29/2006; ALLEN D. BIEHLER answer due 6/29/2006. Signed by Judge Sean J. McLaughlin on 5/30/06. (nk) (Entered: 05/30/2006)
9 ANSWER to Complaint with Jury Demand by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER.(Bradley, Scott) Modified on 6/30/2006 (sdp). JURY DEMAND not listed in document. JURY DEMAND REMOVED until Request filed. (Entered: 06/29/2006)
10 PRELIMINARY SCHEDULING ORDER Rule 26 Meeting Report due by 7/13/2006; Proposed Pretrial Order due by 8/14/2006; Case Management Conference set for 8/23/2006 at 10:00 AM in Courtroom C before Judge Sean J. McLaughlin. Signed by Judge Sean J. McLaughlin on 6/29/06. (nk) (Entered: 06/29/2006)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 9 Answer to Complaint ERROR: Jury demand is not present in the document CORRECTION: to file a Request for Jury Demand. This message is for informational purposes only. (sdp) (Entered: 06/30/2006)
11 DEMAND for Trial by Jury by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (Bradley, Scott) (Entered: 06/30/2006)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 6 of 17

08/14/2006 08/18/2006 08/22/2006 08/22/2006 08/22/2006 09/07/2006
09/07/2006
09/07/2006 09/08/2006
09/08/2006 09/13/2006 09/13/2006

12 REPORT of Rule 26(f) Planning Meeting. (Bradley, Scott) (Entered: 08/14/2006)
TEXT NOTICE of Case Management Conference; PLEASE TAKE NOTICE THAT THE Case Management Conference previously set for 8/23/06 has been RESCHEDULED for 8/22/2006 AT 10:00 AM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (nk) (Entered: 08/18/2006)
TEXT NOTICE of Status Conference; PLEASE TAKE NOTICE THAT a Status Conference is set for 9/13/2006 at 9:30 AM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitues the Court's order or notice on the matter. (nk) (Entered: 08/22/2006)
Text Minute Entry for proceedings held before Judge Sean J. McLaughlin : Case Management Conference held on 8/22/2006. Case Mangement Order to follow; Stats conference set for 9/13/06 at 9:30 am. Text−only entry; no PDF document will issue. This text−only entry constitues the Court's order or notice on the matter. (Court Reporter Ron Bench.)(nk) (Entered: 08/22/2006)
13 CASE MANAGEMENT ORDER: Discovery due by 12/19/2006 Plaintiff Pretrial Statement due by 1/8/2007. Defendant Pretrial Statement due by 1/29/2007. Summary Judgment due by 1/8/2007. Response to Summary Judgment due by 1/29/2007. Signed by Judge Sean J. McLaughlin on 8/22/06. (nk) (Entered: 08/22/2006)
14 First AMENDED COMPLAINT against all defendants. all defendants, filed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Attachments: # 1 Summons City of Erie# 2 Summons City of Meadville)(Markham, Craig) (Entered: 09/07/2006)
15 STIPULATION re 14 Amended Complaint, CONSENT TO FILING OF AMENDED COMPLAINT by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Markham, Craig) (Entered: 09/07/2006)
TEXT NOTICE of Status Conference. PLEASE TAKE NOTICE that the Status Conference set for 9/13/2006 will be held at 9:15 AM in Courtroom C before Judge Sean J. McLaughlin. The Attorney General's office will participate by phone. Text−only entry; no PDF document will issue. This text−only entry constitues the Court's order or notice on the matter.(nk) (Entered: 09/07/2006)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 15 Stipulation,. ERROR: Signature on document and filer do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the document using the Errata event. This message is for informational purposes only., CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: Wrong event selected. CORRECTION: The proper attorney should refile this as a consent. (sdp) (Entered: 09/08/2006)
Summons Issued as to CITY OF ERIE, PENNSYLVANIA, CITY OF MEADVILLE, PENNSYLVANIA. (sdp) (Entered: 09/08/2006)
Text Minute Entry for proceedings held before Judge Sean J. McLaughlin : Status Conference held on 9/13/2006. Another Status Conference will be held on 10/6/06 at 2:30 pm. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter. (Court Reporter Ron Bench.) (nk) (Entered: 09/13/2006)
TEXT NOTICE of Status Conference set for 10/6/2006 02:30 PM in Courtroom C before Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter.(nk) (Entered: 09/13/2006)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 7 of 17

09/15/2006
09/15/2006
09/27/2006 09/29/2006
10/02/2006
10/02/2006 10/04/2006 10/12/2006
10/12/2006 10/19/2006

16 SUMMONS/Return of Service Returned Executed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. CITY OF ERIE, PENNSYLVANIA served on 9/14/2006, answer due 10/4/2006. (Markham, Craig) (Entered: 09/15/2006)
17 SUMMONS/Return of Service Returned Executed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. CITY OF MEADVILLE, PENNSYLVANIA served on 9/14/2006, answer due 10/4/2006. (Markham, Craig) (Entered: 09/15/2006)
18 ANSWER to Amended Complaint by CITY OF ERIE, PENNSYLVANIA.(Villella, Gerald) (Entered: 09/27/2006)
NOTICE of Hearing Status Conference; PLEASE TAKE NOTICE that a TELEPHONIC status conference has been scheduled for 10/2/2006 at 1:30 PM before Judge Sean J. McLaughlin. Attorney Markham will initiate the call, with all counsel on the and call the conference line at 814−464−9615. Also, please take note that the Status Conference previously set for 10/6/06 at 2:30 pm has been changed to 11:00 in Courtroom C, before the Honorable Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter(nk) (Entered: 09/29/2006)
Text Minute Entry for proceedings held before Judge Sean J. McLaughlin : Status Conference held on 10/2/2006. Status Conference previously scheduled for 10/6/06 at 10:00 am has been RESCHEDULED for 10/12/06 at 9:00 am. Oral Order that Parties are to meet and confer with their positions before the next Status Conference. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(Court Reporter Ron Bench.) (nk) (Entered: 10/02/2006)
Text NOTICE of Status Conference set for 10/12/2006 at 9:00 AM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 10/02/2006)
19 ANSWER to Amended Complaint by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Certificate of Service)(Hotchkiss, David) (Entered: 10/04/2006)
20 Minute Entry for proceedings held before Judge Sean J. McLaughlin : Status Conference held on 10/12/2006. City of Meadville and Commonwealth in two weeks from today shall submit a proposed settlement agreement as to their positions. Plaintiff and the City of Erie will identify the intersections that remain in dispute within the next two weeks. Telephonic Status conference will be held in following weeks. Notice of Status Conference will be sent. (Court Reporter Ron Bench.) (nk) Modified on 10/13/2006 (dm). (Entered: 10/12/2006)
TEXT NOTICE of Telephonic Status Conference set for 11/2/2006 at 1:30 PM in Courtroom C before Judge Sean J. McLaughlin. PLEASE TAKE NOTICE that a telephonic status conference has been scheduled; Attorney Markham will initiate the call, with all counsel on the line and call the conference line at 814−464−9615. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter(nk) (Entered: 10/12/2006)
TEXT NOTICE of TELEPHONIC Status Conference set for 11/2/2006 PLEASE TAKE NOTICE THAT the telephonic status conference set for 11/2/06 has been moved to 10:00 AM before Judge Sean J. McLaughlin. Attorney Markham will initiate the call, with all counsel on the line and call the conference line at 814−464−9615. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter (nk) (Entered: 10/19/2006)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 8 of 17

10/26/2006 11/02/2006 11/02/2006 11/15/2006
11/17/2006 11/17/2006 12/06/2006
12/07/2006 12/12/2006 12/21/2006 12/22/2006 12/22/2006

21 SETTLEMENT AGREEMENT Proposed by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Supplement Proposed Settlement Agreement)(Hotchkiss, David) (Entered: 10/26/2006)
TEXT Minute Entry for proceedings held before Judge Sean J. McLaughlin : Status Conference held on 11/2/2006. Telephonic Status Conference scheduled for 11/17/06 at 9:30 am. Attorney Markham will initiate the call. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter(Court Reporter Ron Bench.) (nk) (Entered: 11/02/2006)
TEXT NOTICE of Telephonic Status Conference set for 11/17/2006 at 9:30 AM in before Judge Sean J. McLaughlin. Attorney Markham will initiate the call will all counsel on the line and call the Conference line at 814−464−9615. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter(nk) (Entered: 11/02/2006)
TEXT NOTICE of Status Conference; PLEASE TAKE NOTICE that the TELEPHONIC STATUS CONFERENCE scheduled for 11/17/2006 will be at 8:30 AM before Judge Sean J. McLaughlin. Attorney Markham will initiate the call with all counsel on the line and call the Conference line at 814−464−9615. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 11/15/2006)
Text Minute Entry for proceedings held before Judge Sean J. McLaughlin : Status Conference held on 11/17/2006. Final Settlement conference is set for 12/6/06 at 1:00 pm. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (Court Reporter Ron Bench.) (nk) (Entered: 11/17/2006)
TEXT NOTICE of Settlement Conference; PLEASE TAKE NOTICE that a Settlement Conference is scheduled for 12/6/2006 at 1:00 PM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 11/17/2006)
Text Minute Entry for proceedings held before Judge Sean J. McLaughlin : Status Conference held on 12/6/2006. Defendant's City of Meadville and the States Summary Judgement due 30 days from today; Plaintiff's response due 30 days thereafter. Another Status/Settlement conference for City of Erie, Penn Dot and Plaintiff is scheduled for 1/3/07 at 2:30 pm. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(Court Reporter Ron Bench.) (nk) (Entered: 12/06/2006)
Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. NOTICE of Settlement Conference set for 1/3/2007 at 2:30 PM in Courtroom C before Judge Sean J. McLaughlin. (nk) (Entered: 12/07/2006)
TEXT NOTICE of Settlement Conference; PLEASE TAKE NOTICE that the Settlement Conference in this case has been RESCHEDULED for 1/17/2007 at 2:30 PM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 12/12/2006)
22 Joint MOTION for Entry of Settlement Agreement by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Proposed Settlement Agreement)(Hotchkiss, David) (Entered: 12/21/2006)
23 ORDER granting 22 Motion for Entry of Settlement Agreement. Signed by Judge Sean J. McLaughlin on 12/22/06. (nk) (Entered: 12/22/2006)
24 TRANSCRIPT of Settlement Conference Proceedings held on 12/6/2006 before Judge Sean J. McLaughlin. Court Reporter: Ron Bench. The parties have five (5) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court or the court reporter/transcriber. Notice of Intent for Redaction of Personal Data Identifiers due by

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 9 of 17

01/05/2007 01/05/2007 01/05/2007 01/05/2007 01/05/2007 01/08/2007
01/17/2007 01/17/2007 01/31/2007
03/05/2007 03/08/2007 03/08/2007 03/27/2007

1/9/2007. (dm) (Entered: 12/22/2006)
25 MOTION for Summary Judgment by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (Attachments: # 1 Proposed Order)(Bradley, Scott) (Entered: 01/05/2007)
26 BRIEF in Support re 25 MOTION for Summary Judgment filed by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (Bradley, Scott) (Entered: 01/05/2007)
27 MOTION for Partial Summary Judgment by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Exhibit B − Memorandum in Support of Motion for Partial Summary Judgment# 2 Exhibit A − Affidavit of Joseph A. Chriest# 3 Certificate of Service)(Hotchkiss, David) (Entered: 01/05/2007)
28 STATEMENT OF FACTS 27 Motion for Partial Summary Judgment,. by CITY OF MEADVILLE, PENNSYLVANIA.. (Attachments: # 1 Certificate of Service)(Hotchkiss, David) (Entered: 01/05/2007)
29 BRIEF in Support re 27 MOTION for Partial Summary Judgment filed by CITY OF MEADVILLE, PENNSYLVANIA. (sdp) (Entered: 01/08/2007)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 27 MOTION for Partial Summary Judgment ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Memorandum in Support of Motion for Partial Summary Judgment. This message is for informational purposes only. (sdp) (Entered: 01/08/2007)
Minute Entry for proceedings held before Judge Sean J. McLaughlin : Settlement Conference held on 1/17/2007. Case did not settle; Another settlement conference is set for 1/31/07 at 1:30 PM before the Honorable Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter. (Court Reporter Ron Bench.) (nk) (Entered: 01/17/2007)
NOTICE of Hearing: PLEASE TAKE NOTICE that a Settlement Conference has been set for 1/31/2007 at 1:30 PM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter.(nk) (Entered: 01/17/2007)
Minute Entry for proceedings held before Judge Sean J. McLaughlin : Settlement Conference held on 1/31/2007. Parties have 30 days from today to file a settlement agreement. Defendant's to supply within 14 days to Plaintiff's counsel a proposed draft of settlement; Plaintiffs to return to Defendant's proposed draft within one week of receipt. Deadlines for responses to summary judgment motions postponed until settlement agreement is filed. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter (Court Reporter Ron Bench.) (nk) (Entered: 01/31/2007)
NOTICE of Telephonic Status Conference set for 3/12/2007 at 1:30 PM in before Sean J. McLaughlin. Attorney Markham will initiate the call with all counsel on the line and call the conference line at 814−464−9615. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 03/05/2007)
PLEASE TAKE NOTICE that the telephonic Status Conference set for 3/12/07 is CANCELLED. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (nk) Modified on 3/9/2007 (sdp). (Entered: 03/08/2007)
NOTICE of Status Conference set for 3/27/2007 at 1:30 PM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 03/08/2007)
Minute Entry for proceedings held before Judge Sean J. McLaughlin : Status Conference held on 3/27/2007. Plaintiff to file a Brief in Opposition to Penn Dot within twenty (20) days for today. Text−only entry; no PDF document will issue. This

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 10 of 17

04/16/2007
04/16/2007
04/19/2007
04/19/2007 04/19/2007 05/25/2007 05/31/2007 05/31/2007 05/31/2007 06/01/2007 06/11/2007

text−only entry constitutes the Court's order or notice on the matter. (Court Reporter Ron Bench.)(nk) (Entered: 03/27/2007)
30 BRIEF in Opposition re 27 MOTION for Partial Summary Judgment, 25 MOTION for Summary Judgment filed by Meadville and PennDOT with opposition filed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Markham, Craig) (Entered: 04/16/2007)
31 RESPONSE To Concise Statement of Facts filed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Markham, Craig) (Entered: 04/16/2007)
32 SETTLEMENT AGREEMENT Signed by All Parties and filed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Markham, Craig) (Entered: 04/19/2007)
33 ORDER APPROVING SETTLEMENT AGREEMENT of CITY OF ERIE, PENNSYLVANIA and PENNDOT, signed by Judge McLaughlin on 4/19/07. (nk) Modified on 4/30/2007. (tt) (Entered: 04/19/2007)
NOTICE of Oral Argument on Motion 27 MOTION for Partial Summary Judgment, 25 MOTION for Summary Judgment: TAKE NOTICE THAT an OralARGUMENT is set for 5/30/2007 at 1:30 PM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 04/19/2007)
PLEASE TAKE NOTICE THAT the oral argument set for 5/30/07 is CANCELLED. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter. (nk) (Entered: 05/25/2007)
34 NOTICE by CITY OF MEADVILLE, PENNSYLVANIA re 27 MOTION for Partial Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Supplemental Case# 2 Certificate of Service)(Hotchkiss, David) (Entered: 05/31/2007)
ORDER Response re 34 Notice of Supplemental Authority filed by City of Meadville; ORDERED that the Plaintiff's file a response to the Order on or before 6/13/2007. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. Signed by Judge Sean J. McLaughlin on 5/31/07. (nk) (Entered: 05/31/2007)
35 NOTICE by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER re 25 MOTION for Summary Judgment (State Defendants' Notice of Supplemental Authority) (Attachments: # 1 Exhibit 1 (Ledbetter Slip Opinion))(Bradley, Scott) (Entered: 05/31/2007)
ORDER Response re 35 Notice of supplemental authority. Plaintiff's Response to Motion due by 6/14/2007. Signed by Judge Sean J. McLaughlin on 6/1/07. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 06/01/2007)
36 REPLY BRIEF by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN to 34 35 Notice of Supplemental Authority filed by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 11 of 17

09/28/2007 10/26/2007
11/05/2007 11/06/2007 11/09/2007
02/22/2008 02/22/2008 03/17/2008
03/31/2008 03/31/2008 06/09/2008

HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Markham, Craig) Modified on 6/12/2007 (sdp). (Entered: 06/11/2007)
37 MEMORANDUM OPINION AND ORDER denying 25 Motion for Summary Judgment filed by Defendants the Commonwealth of Pennsylvania Department of Transportation and Allen D. Biehler; denying 27 Motion for Partial Summary Judgment filed by Defendant the City of Meadville, Pennsylvania. Signed by Judge Sean J. McLaughlin on 09/28/07. (kas) (Entered: 09/28/2007)
38 NOTICE OF APPEAL as to 37 Order on Motion for Summary Judgment,, Order on Motion for Partial Summary Judgment, by CITY OF MEADVILLE, PENNSYLVANIA. Filing fee $ 455, receipt number 720231. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Hotchkiss, David) (Entered: 10/26/2007)
40 TRANSCRIPT REQUEST by CITY OF MEADVILLE, PENNSYLVANIA re 38 Notice of Appeal,, NO TRANSCRIPT (Hotchkiss, David) (Entered: 11/05/2007)
Record complete for Appeal purposes. (sdp) (Entered: 11/06/2007)
41 NOTICE OF CROSS APPEAL by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN to 37 order. Filing fee $ 455, receipt number 732862. Representing Attorney: Craig A. Markham. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will not be mailed to the parties. The form is available on the Court's internet site.Appeal Record due by 11/9/2007. (Markham, Craig) Modified on 11/13/2007 (sdp). (Entered: 11/09/2007)
43 STATUS REPORT re Compliance with Settlement Agreement by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Exhibit 2007 Ramp Report − Meadville) (Hotchkiss, David) (Entered: 02/22/2008)
44 CERTIFICATE OF SERVICE by CITY OF MEADVILLE, PENNSYLVANIA re 43 Status Report re Compliance with Settlement Agreement (Hotchkiss, David) (Entered: 02/22/2008)
45 ORDER of USCA as to 38 Notice of Appeal, filed by CITY OF MEADVILLE, PENNSYLVANIA, 41 Notice of Cross Appeal, filed by FELICIA BONGIORNO, SANDRA FULLER, PAUL PECUNAS, MELVIN BORREO, KATHY A. HERTZOG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MARY ANN PARSNIK, CAROLYN A. CREHAN, PAT WEAVER, MARY KRUG, MICHAEL L. EAKIN, STEPHEN CLARK, JILL HRINDA−PATTEN, JAY SHUFFSTALL (tmk3) The appeals are dismissed for lack of appellate jurisdiction. The District court's order denying motions for summary judgment is not a final order. (Entered: 03/17/2008)
46 STATUS REPORT (2007 Schedule A−Meadville) by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (Bradley, Scott) (Entered: 03/31/2008)
47 STATUS REPORT (2007 Schedule A − Erie) by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. (Bradley, Scott) (Entered: 03/31/2008)
NOTICE of Status Conference set for 7/8/2008 at 1:30 PM before Judge Sean J. McLaughlin. Attorney Finnegan and Attorney Bradely may partipate by phone. Attorney Finnegan shall initiate the call with Attorney Bradely on the line and call the conference line at 814−464−9615, all other counsel will shall be present in person. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter.(nk) (Entered: 06/09/2008)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 12 of 17

07/08/2008
08/04/2008
09/03/2008
11/06/2008 11/20/2008 11/21/2008 11/21/2008 03/04/2009
03/09/2009

Text Minute Entry for proceedings held before Judge Sean J. McLaughlin: Status Conference held on 7/8/2008. The Court entered an oral order on the record scheduling a settlement conference for Wednesday, September 3, 2008 at 10:00 a.m. in the within case. Counsel for Plaintiffs and the City of Meadville shall be present at that time, along with a representive of the City of Meadville possessing final settlement authority. To the extent that matters have not been finally resolved between the Plaintiffs and PENNDOT as of that date, Counsel for PENNDOT shall be present at 1:00 p.m. for the settlement conference, along with a PENNDOT representative possessing final settlement authority. The City of Erie is excused from this settlement conference. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (Court Reporter: Ron Bench) (kas) (Entered: 07/08/2008)
NOTICE of Settlement Conference set for Wednesday, September 3, 2008 at 10:00 a.m. Counsel for Plaintiffs and the City of Meadville shall be present at that time, along with a representive of the City of Meadville possessing final settlement authority. To the extent that matters have not been finally resolved between the Plaintiffs and PENNDOT as of that date, Counsel for PENNDOT shall be present at 1:00 p.m. for the settlement conference, along with a PENNDOT representative possessing final settlement authority. The City of Erie is excused from this settlement conference. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter (nk) (Entered: 08/04/2008)
Minute Entry for proceedings held before Judge Sean J. McLaughlin: Settlement/Status Conference held on 9/3/2008. Meadville/Penndot parties to have their draft to Plaintiff's c counsel on or before 10/3/08. Settlement Conference is set for 11/6/08 at 10:00 before Judge McLaughlin. If there is an agreement between the parties, then Attorney Bradley will participate by phone, if not he will attend the conference in person. Attorney Bradley will contact the Court as to how he plans on attending this conference the Friday before November 6, 2008. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter (Court Reporter: Ron Bench) (nk) (Entered: 09/04/2008)
48 Minute Entry for proceedings held before Judge Sean J. McLaughlin: Settlement Conference held on 11/6/2008. Tentative settlement reached between Plaintiff's and City of Meadville. Parties will submit a proposed consent decree within two weeks. (Court Reporter: Ron Bench) (nk) (Entered: 11/12/2008)
49 STATUS REPORT by CITY OF MEADVILLE, PENNSYLVANIA. (Hotchkiss, David) (Entered: 11/20/2008)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 49 Status Report. ERROR: no caption, no signature, incorrect date. CORRECTION: attorney is going to resubmit with corrections. This message is for informational purposes only. (sdp) (Entered: 11/21/2008)
50 AMENDED DOCUMENT by CITY OF MEADVILLE, PENNSYLVANIA. Amendment to 49 Status Report. (Hotchkiss, David) (Entered: 11/21/2008)
51 SETTLEMENT AGREEMENT (Third) Between Plaintiffs and Commonwealth of Pa, Dept. of Transportation, by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Attachments: # 1 Exhibit Sch E, Erie, # 2 Exhibit Sch E Meadville, # 3 Proposed Order) (Markham, Craig) (Entered: 03/04/2009)
52 ORDER GRANTING 51 Settlement Agreement, filed by FELICIA BONGIORNO, SANDRA FULLER, PAUL PECUNAS, MELVIN BORREO, KATHY A. HERTZOG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MARY ANN PARSNIK, CAROLYN A. CREHAN, PAT WEAVER, MARY KRUG, MICHAEL L. EAKIN, STEPHEN CLARK, JILL HRINDA−PATTEN, JAY SHUFFSTALL. Signed by Judge Sean J. McLaughlin on 3/9/09. (nk) (Entered: 03/09/2009)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 13 of 17

03/11/2009
03/11/2009 09/02/2010 01/30/2012
05/11/2012
05/11/2012 05/23/2012
05/25/2012 06/14/2012 06/14/2012 06/20/2012 06/21/2012 06/21/2012

53 CONSENT DECREE by JAY SHUFFSTALL, CAROLYN A. CREHAN, KATHY A. HERTZOG, PAUL PECUNAS, SANDRA FULLER, MARY ANN PARSNIK, PAT WEAVER, FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, JILL HRINDA−PATTEN, MARY KRUG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MICHAEL L. EAKIN. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Proposed Order) (Markham, Craig) (Entered: 03/11/2009)
54 Approved Consent Decree. Signed by Judge Sean J. McLaughlin on 3/11/09. (nk) (Entered: 03/11/2009)
55 EXHIBIT OF MAP SHOWING THE NATURE AND STATUS OF CURB RAMP RETROFITTING IN THE CITY OF MEADVILLE by CITY OF MEADVILLE, PENNSYLVANIA. (IN EXHIBIT ROOM IN CLERK'S OFFICE) (sdp) (Entered: 09/02/2010)
56 SETTLEMENT AGREEMENT With PennDOT (4th Agreement) by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Markham, Craig) (Entered: 01/30/2012)
57 SETTLEMENT AGREEMENT proposed order by FELICIA BONGIORNO, MELVIN BORREO, CITY OF MEADVILLE, PENNSYLVANIA, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Markham, Craig) (Entered: 05/11/2012)
58 ORDER Granting 56 SETTLEMENT AGREEMENT With PennDOT (4th Agreement). Signed by Judge Sean J. McLaughlin on 5/11/12. (nk) (Entered: 05/11/2012)
59 MOTION to Enforce Settlement Agreement filed by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order) (Markham, Craig) (Entered: 05/23/2012)
ORDER Response re 59 Motion to Enforce Settlement Agreement, Response to Motion due by 6/14/2012. Signed by Judge Sean J. McLaughlin on 5/25/12. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 05/25/2012)
60 MOTION for Extension of Time to File Response/Reply as to 59 MOTION to Enforce Settlement Agreement filed by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 06/14/2012)
61 ORDER granting 60 Motion for Extension of Time to File Response/Reply re 59 MOTION to Enforce Settlement Agreement filed Responses due by 6/21/2012. Signed by Judge Sean J. McLaughlin on 6/14/12. (nk) (Entered: 06/14/2012)
62 STATUS REPORT by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (City of Erie Curb Ramp Inventory), # 2 Exhibit B (City of Meadville Curb Ramp Inventory), # 3 Exhibit (Instructions), # 4 Exhibit (Example)) (Bradley, Scott) (Entered: 06/20/2012)
63 MOTION to Withdraw as Attorney by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Proposed Order) (Hotchkiss, David) (Entered: 06/21/2012)
64 RESPONSE to Motion re 59 MOTION to Enforce Settlement Agreement filed filed by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT

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06/21/2012 06/25/2012 07/05/2012 07/11/2012
07/20/2012
07/20/2012
07/25/2012
08/27/2012 08/30/2012 08/30/2012 09/05/2012

OF TRANSPORTATION. (Attachments: # 1 Exhibit s A−C) (Bradley, Scott) (Entered: 06/21/2012)
65 ORDER granting 63 Motion to Withdraw as Attorney. Attorney David L. Hotchkiss terminated. Signed by Judge Sean J. McLaughlin on 6/21/12. (nk) (Entered: 06/21/2012)
66 NOTICE of Appearance by Gary M. Alizzeo on behalf of CITY OF MEADVILLE, PENNSYLVANIA. (Alizzeo, Gary) (Entered: 06/25/2012)
NOTICE of Status Conference set for 7/25/2012 at 2:00 PM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (nk) (Entered: 07/05/2012)
67 REPLY to Response to Motion re 64 Response to Motion to Enforce Settlement Agreements filed by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Attachments: # 1 Exhibit 3, # 2 Exhibit 4, # 3 Exhibit 5) (Markham, Craig) (Entered: 07/11/2012)
68 MOTION to Enforce Settlement Agreement Respecting Omitted Curb Ramps by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) (Markham, Craig) (Entered: 07/20/2012)
69 BRIEF in Support re 68 Motion to Enforce Settlement Agreement, Respecting Omitted Curb Ramps filed by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Markham, Craig) (Entered: 07/20/2012)
Minute Entry for proceedings held before Judge Sean J. McLaughlin: Status Conference held on 7/25/2012. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION response to 68 MOTION to Enforce Settlement Agreement Respecting Omitted Curb Ramps due on or before 8/27/12. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter (Court Reporter: Ron Bench) (nk, ) (Entered: 07/26/2012)
70 MOTION for Extension of Time to File Response/Reply as to 68 MOTION to Enforce Settlement Agreement Respecting Omitted Curb Ramps by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 08/27/2012)
71 RESPONSE to Motion re 68 MOTION to Enforce Settlement Agreement Respecting Omitted Curb Ramps filed by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Bradley, Scott) (Entered: 08/30/2012)
72 BRIEF in Support of 71 Response to Motion filed by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit s A−C, # 2 Exhibit D, # 3 Exhibit s E−F, # 4 Exhibit G) (Bradley, Scott) (Entered: 08/30/2012)
ORDER denying as moot 70 Motion for Extension of Time to File Response/Reply. Signed by Judge Sean J. McLaughlin on 9/5/12. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 09/05/2012)

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 15 of 17

09/13/2012 10/01/2012 11/08/2012 11/21/2012 12/18/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/27/2012
01/14/2013 01/29/2013

73 NOTICE of Filing Inspection Certifications by CITY OF ERIE, PENNSYLVANIA (Attachments: # 1 Affidavit) (Villella, Gerald) (Entered: 09/13/2012)
74 REPLY to Response to Motion re 71 Response to Motion filed by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG. (Attachments: # 1 Exhibit 1) (Markham, Craig) (Entered: 10/01/2012)
75 SUPPLEMENT by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION to 72 Brief in Support − Other. (Attachments: # 1 Exhibit s H−I) (Bradley, Scott) (Entered: 11/08/2012)
76 REPLY BRIEF re 75 Supplement Of PennDOT filed by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Markham, Craig) (Entered: 11/21/2012)
ORDER that the Commonwealth of Pennsylvania file a Sur−Reply to 76 Reply Brief on or before 1/4/2013. Signed by Judge Sean J. McLaughlin on 12/18/12. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 12/18/2012)
NOTICE of Hearing on Motion re 59 MOTION to Enforce Settlement Agreement filed, 68 MOTION to Enforce Settlement Agreement Respecting Omitted Curb Ramps: Oral Argument set for 1/29/2013 at 10:00 AM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry. No PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 12/21/2012)
77 MOTION for Extension of Time to File , MOTION for Extension of Time to File Response/Reply as to 76 Reply Brief, by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 12/21/2012)
78 ORDER granting 77 Motion for Extension of Time to File ; granting 77 Motion for Extension of Time to File Response/Reply re 59 MOTION to Enforce Settlement Agreement, 68 MOTION to Enforce Settlement Agreement Respecting Omitted Curb Ramps. Sur−Reply due by 1/14/2013. Signed by Judge Sean J. McLaughlin on 12/21/12. (nk) (Entered: 12/21/2012)
NOTICE of Hearing on Motion re 59 MOTION to Enforce Settlement Agreement filed, 68 MOTION to Enforce Settlement Agreement Respecting Omitted Curb Ramps: Oral Argument set for 1/29/2013 will be held at 1:30 PM in Courtroom C before Judge Sean J. McLaughlin. Text−only entry. No PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 12/21/2012)
79 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on 7/25/12 before Judge Sean J. McLaughlin. Court Reporter/Transcriber Ron Bench, Telephone number 464−9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 1/3/2013. Redaction Request due 1/17/2013. Redacted Transcript Deadline set for 1/28/2013. Release of Transcript Restriction set for 3/27/2013. (sdp, ) (Entered: 12/27/2012)
80 Sur−Reply re 76 Reply Brief, filed by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Bradley, Scott) (Entered: 01/14/2013)
Minute Entry for proceedings held before Judge Sean J. McLaughlin: Motion Hearing held on 1/29/2013 re 68 MOTION to Enforce Settlement Agreement Respecting

Case: 1:06-cv-00078-BR As of: 11/24/2018 07:41 PM EST 16 of 17

01/30/2013
01/31/2013 02/22/2013 04/18/2013 04/19/2013 06/03/2013
02/04/2014

Omitted Curb Ramps filed by FELICIA BONGIORNO, SANDRA FULLER, PAUL PECUNAS, MELVIN BORREO, KATHY A. HERTZOG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MARY ANN PARSNIK, CAROLYN A. CREHAN, PAT WEAVER, MARY KRUG, MICHAEL L. EAKIN, STEPHEN CLARK, JILL HRINDA−PATTEN, JAY SHUFFSTALL, 59 MOTION to Enforce Settlement Agreement filed filed by FELICIA BONGIORNO, SANDRA FULLER, PAUL PECUNAS, MELVIN BORREO, KATHY A. HERTZOG, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), MARY ANN PARSNIK, CAROLYN A. CREHAN, PAT WEAVER, MARY KRUG, MICHAEL L. EAKIN, STEPHEN CLARK, JILL HRINDA−PATTEN, JAY SHUFFSTALL. MOTIONS GRANTED for the reasons set forth on the record. (Court Reporter: Ron Bench) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (nk) (Entered: 01/29/2013)
81 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings on Plaintiff's Motion to Enforce Settlement Agreement (Court's Order) held on 1/29/13 before Judge Sean J. McLaughlin. Court Reporter/Transcriber Ronald Bench, Telephone number 464−9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 2/6/2013. Redaction Request due 2/20/2013. Redacted Transcript Deadline set for 3/4/2013. Release of Transcript Restriction set for 4/30/2013. (sdp, ) (Entered: 01/30/2013)
82 STATUS REPORT (Annual Reports for 2012) by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (City of Erie), # 2 Exhibit B (City of Meadville)) (Bradley, Scott) (Entered: 01/31/2013)
83 STATUS REPORT by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Exhibit A) (Alizzeo, Gary) (Entered: 02/22/2013)
84 SETTLEMENT AGREEMENT FIFTH, filed by FELICIA BONGIORNO, MELVIN BORREO, STEPHEN CLARK, CAROLYN A. CREHAN, MICHAEL L. EAKIN, SANDRA FULLER, KATHY A. HERTZOG, JILL HRINDA−PATTEN, MARY KRUG, MARY ANN PARSNIK, PAUL PECUNAS, JAY SHUFFSTALL, B. LYNNE VESTAL, VOICES FOR INDEPENDENCE, (VFI), PAT WEAVER. (Attachments: # 1 Exhibit A− Erie Inventory, # 2 Exhibit Erie Inventory attachments, # 3 Exhibit B−Meadville Inventory, # 4 Exhibit Meadville Inventory attachments, # 5 Proposed Order) (Markham, Craig) (Entered: 04/18/2013)
85 ORDER APPROVING SETTLMENT AGREEMENT. Signed by Judge Sean J. McLaughlin on 4/19/13. (nk) (Entered: 04/19/2013)
86 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Pltf's Motion to Enforce Settlement Agreement Proceedings held on 1/29/13 before Judge Sean J. McLaughlin. Court Reporter/Transcriber Ron Bench, Telephone number 464−9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 6/10/2013. Redaction Request due 6/24/2013. Redacted Transcript Deadline set for 7/5/2013. Release of Transcript Restriction set for 9/3/2013. (sdp, ) (Entered: 06/03/2013)
87 STATUS REPORT by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (City of Erie), # 2 Exhibit B (City of Meadville)) (Bradley, Scott) (Entered: 02/04/2014)

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02/07/2014 01/30/2015 02/04/2015 02/05/2015 01/28/2016 01/28/2016 11/23/2016 11/25/2016
11/28/2016
01/30/2017 01/30/2018

88 STATUS REPORT by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Exhibit A) (Alizzeo, Gary) (Entered: 02/07/2014)
89 STATUS REPORT (PennDOT Annual Reports) by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (City of Erie), # 2 Exhibit B (City of Meadville)) (Bradley, Scott) (Entered: 01/30/2015)
Case reassigned to Judge Barbara Rothstein. Chief Judge Sean J. McLaughlin no longer assigned to the case. (sdp) (Entered: 02/04/2015)
90 STATUS REPORT by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Exhibit 2014 ADA Report) (Alizzeo, Gary) (Entered: 02/05/2015)
91 STATUS REPORT by CITY OF MEADVILLE, PENNSYLVANIA. (Attachments: # 1 Exhibit A 2015 ADA Report) (Alizzeo, Gary) (Entered: 01/28/2016)
92 STATUS REPORT by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (City of Erie), # 2 Exhibit B (City of Meadville)) (Bradley, Scott) (Entered: 01/28/2016)
93 Joint MOTION to Dismiss All Claims Against City of Meadville by CITY OF MEADVILLE, PENNSYLVANIA. (Alizzeo, Gary) (Main Document 93 replaced on 11/25/2016) (nk) (Additional attachment(s) added on 11/25/2016: # 1 Proposed Order) (nk) (Entered: 11/23/2016)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 93 Motion to Dismiss. ERROR: Proposed Order was made part of main document. CORRECTION: Attorney advised that in future proposed orders are to be made attachments to the main document. This message is for informational purposes only. (nk) (Entered: 11/25/2016)
94 MINUTE ORDER: Upon presentation and consideration of the foregoing, 93 Joint Motion to Dismiss is hereby GRANTED. Each case and all claims against the City of Meadville shall be dismissed, with prejudice, and marked closed. Signed by Judge Barbara Rothstein on 11/28/2016. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jds) (Entered: 11/28/2016)
95 STATUS REPORT by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (City of Erie), # 2 Exhibit B (City of Meadville)) (Bradley, Scott) (Entered: 01/30/2017)
96 STATUS REPORT by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (City of Erie), # 2 Exhibit B (City of Meadville)) (Bradley, Scott) (Entered: 01/30/2018)

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 M. R.; S. J.; C. B.; D. W.; A. B.;
M. B.; A N. B.; J. B.; K. S.; T. M.; A. R.; M. J. B.; J. H.; H. C.; T HE ARC OF WASHINGTON; SERVICE EMPLOYEES INTERNATIONAL UNION HEALTHCARE 775NW; P UGET SOUND ALLIANCE FOR RETIRED AMERICANS,
Plaintiffs-Appellants,

No. 11-35026

v. SUSAN DREYFUS, in her

 D.C. No. 2:10-cv-02052-TSZ

professional capacity as Secretary

OPINION

of Washington State Department

of Social and Health Services;

WASHINGTON STATE DEPARTMENT OF

SOCIAL AND HEALTH SERVICES, a

Department of the State of

Washington,

 Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted June 9, 2011—Seattle, Washington
Filed December 16, 2011
Before: Stephen Reinhardt, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge William A. Fletcher; Dissent by Judge Rawlinson
21109

M. R. v. D REYFUS

21113

COUNSEL
Stephen P. Berzon. Eve Hedy Cervantez, Stacey Leyton, Matthew John Murray, Casey Austin Roberts, ALSHULER BERZON LLP, San Francisco, California, Andrea Brenneke, MACDONALD HOAGUE & BAYLESS, Seattle, Washington, for the appellants.
Edward J. Dee, William T. Stephens, William Bruce Work, OFFICE OF THE WASHINGTON ATTORNEY GENERAL, Olympia, Washington, for the appellees.

21114

M. R. v. D REYFUS OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs, Washington State Medicaid beneficiaries with severe mental and physical disabilities, appeal the district court’s denial of their motion for a preliminary injunction. Plaintiffs seek to enjoin the operation of a regulation promulgated by Washington’s Department of Social and Health Services (“DSHS”) that reduces the amount of in-home “personal care services” available under the state’s Medicaid plan. The United States Department of Justice has filed a “statement of interest” in the district court supporting Plaintiffs’ request for an injunction.

“Personal care services ” provide assistance in performing basic life activities — such as eating, bathing, dressing, moving from place to place, and using the toilet — that Plaintiffs, because of their disabilities, cannot perform by themselves. To comply with Governor Christine Gregoire’s executive order that directed an across-the-board reduction in all state agency expenditures, DSHS promulgated a regulation that cut the base hours of covered in-home personal care services by an average of 10 percent per beneficiary per month.

Plaintiffs argue principally that the regulation violates the antidiscrimination provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), because the reduction in hours will substantially increase the risk that they will be institutionalized in order to receive care adequate to maintain their mental and physical health. The district court denied preliminary relief.

We reverse. We conclude that Plaintiffs have demonstrated a likelihood of irreparable injury because they have shown that reduced access to personal care services will place them at serious risk of institutionalization. We further conclude that Plaintiffs have raised serious questions going to the merits of

M. R. v. D REYFUS

21115

their Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their favor, and that a preliminary injunction will serve the public interest. See Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011). We therefore remand for entry of a preliminary injunction.

I. Background and Procedural History

A. Factual Background

Medicaid is a cooperative federal-state program under which the federal government provides states with financial assistance to supply medical services to low-income people. Arc of Wash. State Inc. v. Braddock , 427 F.3d 615, 617 (9th Cir. 2005). State participation is voluntary, but once a state chooses to participate, the state must submit for federal approval a plan that complies with federal statutory and regulatory requirements. Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir. 2003). A state plan must cover the cost to eligible people of certain medical services, including inpatient and outpatient hospital care; laboratory and X-ray services; nursing facility care; and services provided by physicians, dentists, nursemidwives, and pediatric or family nurse practitioners. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21); 42 C.F.R. §§ 440.210, 440.220. Within this federal framework, however, states retain “substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage.” Alexander, 469 U.S. at 303; see also Beal v. Doe, 432 U.S. 438, 444 (1977); 42 C.F.R. § 430.0.

States may, but need not, choose to subsidize other types of medical services, including “personal care services,” the benefit at issue here. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(24). “Personal care services” are:

services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility,

21116

M. R. v. D REYFUS

intermediate care facility for the mentally retarded, or institution for mental disease that are

(A) . . . authorized for the individual in accordance with a service plan approved by the State,

(B) provided by an individual who is qualified to provide such services and who is not a member of the individual’s family, and

(C) furnished in a home or other location.

Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarifying that a family member is “a legally responsible relative ”); CTRS. FOR MEDICARE AND MEDICAID SERVS., STATE MEDICAID MANUAL § 4480(C), at 4-495 (1999) (personal care services “include a range of human assistance provided to persons with disabilities and chronic conditions . . . which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability, ” and “most often relate[ ] to . . . eating, bathing, dressing, toileting, transferring, . . . maintaining continence, . . . personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management”).

Washington has elected to cover the cost of personal care services, which the state defines as “physical or verbal assistance with activities of daily living and instrumental activities of daily living provided because of a person’s functional disability.” WASH. REV. CODE § 74.39A.009(18). The state defines “activities of daily living,” in turn, to include bathing, bed mobility, body care, dressing, eating, locomotion inside and outside one’s room and immediate living environment, walking in one’s room and immediate living environment, medication management, toilet use, transferring between surfaces, and personal hygiene. W ASH. ADMIN. CODE § 388-106-

M. R. v. D REYFUS

21117

0010. The state defines “instrumental activities of daily living” as including meal preparation, ordinary housework, essential shopping, wood supply when wood is used as one’s sole source of heat, travel to medical services, managing finances, and telephone use. Id.

Washington’s DSHS administers the state’s Medicaid programs. See 42 U.S.C. § 1396a(a)(5); WASH. REV. CODE § 74.09.530. DSHS covers the cost of personal care services for approximately 45,000 people. Some 15,000 of those beneficiaries are “categorically needy” participants in the state’s Medicaid plan. The remaining 30,000 beneficiaries participate in one of Washington’s Medicaid waiver programs, “under which the Secretary of Health and Human Services is authorized to waive certain Medicaid requirements for innovative or experimental state health care programs. ” Townsend, 328 F.3d at 514. Consistent with Congress’s preference for community rather than institutional care, “the waiver program provides Medicaid reimbursement to States for the provision of community-based services to individuals who would otherwise require institutional care, upon a showing that the average annual cost of such services is not more than the annual cost of institutional services. ” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 n.12 (1999) (citing 42 U.S.C. § 1396n(c)).

Before Washington may cover the cost of in-home personal

care services to participants in a Medicaid waiver program,

the state must have made “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.

” Id.

§ 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also,

e.g., WASH. ADMIN. CODE § 388-106-0310(4) (participants in

Community Options Program Entry Services ( “COPES”)

waiver program must “need the level of care provided in a

nursing facility”); id. §§ 388-106-0410(4), 388-106-0510(4)

21118

M. R. v. D REYFUS

(same with respect to participants in Medically Needy Residential Waiver ( “MNRW”) and Medically Needy In-Home Waiver (“MNIW”) programs); id. § 388-845-0030(2) (developmentally disabled participants in Home and Community-Based Services (“HCBS”) waiver programs must need the level of care provided in an intermediate care facility for the mentally retarded).

DSHS determines the number of hours of in-home personal services care to which a Medicaid beneficiary is entitled through the Comprehensive Reporting Evaluation ( “CARE”). See WASH. ADMIN. CODE § 388-106-0050 to -0145. The Washington Supreme Court has described CARE as follows:

In the initial stage of a CARE evaluation, the individual is scored on factors such as an individual’s ability to perform daily activities and an individual’s mental status. The individual is then assigned to 1 of 17 classification groups, each group having a set number of base . . . hours associated with it. Once these base hours are established, an assessor individually considers the recipient’s self-performance and the amount of informal support available for the recipient’s activities of daily living (ADL) and instrumental activities of daily living (IADL). The recipient’s level of informal support for each ADL and IADL then reduces the base hours allocated to that recipient by a predetermined percentage.

Samantha A. v. Dep’t of Soc. & Health Servs ., 256 P.3d 1138, 1140 (Wash. 2011) (en banc) (internal citation omitted); see also, e.g., Jenkins v. Wash. Dep’t of Soc. & Health Servs., 157 P.3d 388, 389-90 (Wash. 2007) (en banc). DSHS sets the base monthly hours associated with each classification group by regulation. WASH. ADMIN. CODE § 388-106-0125. DSHS conducts CARE reassessments at least annually, or whenever a beneficiary’s ability to care for himself changes. Id. § 388106-0050(1). A beneficiary who disagrees with his CARE

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evaluation may appeal the evaluation in an administrative hearing. Id. § 388-106-1305. A beneficiary who remains dissatisfied with his allocated hours of assistance may request additional hours through an Exception to Rule ( “ETR”). Id. § 388-440-0001. DSHS will grant an ETR when “[t]he client’s situation differs from the majority; . . . [i]t is in the interest of overall economy and the client’s welfare; and [i]t increases opportunities for the client to function effectively. ” Id. § 388-440-0001(1)(b)-(d).

Once the CARE evaluation sets the number of hours to which a beneficiary is entitled, the beneficiary and his DSHS case manager work together to design a plan of care that specifies the services that the beneficiary will receive as well as the caregivers who will provide those services. Id. §§ 388106-0045, 388-106-0130. At all times, a beneficiary has the right to choose where he will receive authorized services (for example, in his home, in a residential facility, or in a nursing home), id. § 388-106-0030; to “[t]ake part in and have [his] wishes included in planning [his] care, ” id. § 388-1061300(13); and to “[c]hoose, fire, or change ” his caregiver, id. § 388-106-1300(14).

On September 13, 2010, Governor Gregoire issued an executive order stating that because of “the national economic downturn” and “revenues [that] have fallen short of projections,” the state’s general fund was in danger of running a deficit. Exec. Order No. 10-04, Ordering Expenditure Reductions in Allotments of State General Fund Appropriations (Sept. 13, 2010), available at http://www.governor.wa.gov/execorders/ eo_10-04.pdf. Governor Gregoire ordered an across-the-board reduction in general fund appropriations to all state agencies, in an amount to be computed by the state’s Office of Financial Management. Id; see WASH. REV. CODE § 43.88.110(7) (“If at any time during the fiscal period the governor projects a cash deficit in a particular fund or account . . . the governor shall make across-the-board reductions in allotments for that particular fund or account so as to prevent a cash deficit. ”).

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The Office of Financial Management, in turn, determined that each state agency would be required to reduce its allotment from the general fund by 6.287 percent. See Office of Fin. Mgmt., Allotment Reduction Instructions for Across-theBoard Cuts Mandated by Executive Order 10-04, at 2 (Sept. 16, 2010), available at http://www.ofm.wa.gov/budget/ instructions/allotment/Allotment_reduction_instructions 091610.pdf.

To comply with the governor’s order, DSHS promulgated an emergency regulation that reduced the base monthly hours of in-home personal services care authorized for each CARE classification group, effective January 1, 2011. See Wash. Reg. 11-02-041 (Dec. 30, 2010) (codified at W ASH. ADMIN. CODE § 388-106-0125), available at http://apps.leg.wa.gov/ documents/laws/wsr/2011/02/11-02-041.htm. DSHS applied the lowest percentage reductions to the classification groups composed of the most disabled beneficiaries. See WASH. REV. CODE § 74.09.520(4) (“Any reductions in services made necessary for funding reasons should be accomplished in a manner that assures that priority for maintaining services is given to persons with the greatest need as determined by the assessment of functional disability. ”). For example, DSHS reduced the base monthly hours for people in group D High from 277 to 260, a 6.1 percent decrease. Wash. Reg. 11-02-041. By contrast, DSHS reduced the monthly base hours for people in group B Low from 47 to 39, a 17 percent decrease. Id. The average reduction in hours across all groups was about 10 percent. Susan Dreyfus, DSHS’s Director, declared in January 2011 that the reduction in hours would save $19.2 million in the five months then remaining in the 2011 fiscal year. DSHS acknowledged in agency planning documents that “[w]ith reduced hours, in-home clients will have to choose which tasks their employees spend their time on and there may not be enough time to complete all tasks. ” Moreover, DSHS anticipated that “[a]t the higher percentage reductions, some needed tasks may not be completed on a regular basis. In some cases, a safe in-home plan of care will not be possible

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and clients may need to go to community residential or nursing facility settings.”

On December 6, 2010, about three weeks before the reduction was to take effect, DSHS mailed notice of the change to beneficiaries. The notice stated that “you will receive fewer personal care hours each month starting January 1, 2011, ” set forth the beneficiary’s current and revised monthly hours, and computed the difference. The notice stated that “[t]his notification serves as an amendment to your plan of care. You will need to work with your personal care worker to prioritize tasks within this reduced number of monthly authorized hours.” Finally, the notice explained that DSHS

is making this change in response to the Governor’s September 14th Executive Order 10-04 for 6.3% reductions. This was one of a number of changes made across government to address the State’s revenue shortfall.

There are no appeal rights for this change through the Office of Administrative Hearings because this is a service change directed by the governor and applies to the entire program. We know these changes may be difficult for you. If you have questions or concerns about changes to your services, please contact your case manager.

B. Procedural History

On December 23, 2010, Plaintiffs — 14 recipients of inhome personal services care whose hours were reduced, two advocacy organizations, and a union that represents Washington home-care workers — brought suit in federal district court for the Western District of Washington. The 14 individual plaintiffs sued on behalf of a proposed class of “Medicaideligible individuals in the State of Washington living at home who were assessed to need personal care services based upon

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individualized CARE assessments of their needs and who received these Medicaid services in accordance with their assessment[s] until DSHS reduced their services to below their level of need for budgetary reasons alone. ” Plaintiffs alleged that the regulation violated the Americans with Disabilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C. § 794(a), due process, and various statutory and regulatory Medicaid requirements. Plaintiffs sought a declaratory judgment, as well as a temporary restraining order and preliminary and permanent injunctions prohibiting DSHS from implementing the regulation. In the alternative, Plaintiffs sought to enjoin the reduction in hours until beneficiaries received individual CARE reassessments, notice of alternative institutional placements, and administrative hearings.

The district court denied the motion for a TRO and deferred hearing on the motion for a preliminary injunction. Plaintiffs appealed the denial of the motion for a TRO, prompting the district court to stay proceedings and cancel a scheduled hearing on Plaintiffs’ motion for a preliminary injunction. On appeal, a motions panel of this court stayed implementation of the emergency regulation pending the district court’s disposition of the motion for a preliminary injunction. The panel concluded that denial of the TRO was reviewable “because the district court took the hearing for the motion for preliminary injunction off calendar,” making denial of the TRO “tantamount for present purposes to the denial of a motion for a preliminary injunction.” On the merits, the panel determined that a stay pending a hearing on the motion for a preliminary injunction was justified because “[n]o other relief is available that will remedy the irreparable injury which continues to occur pending such hearing. ”

On remand, the district court denied Plaintiffs’ motion for a preliminary injunction. The court determined that Plaintiffs failed to satisfy any prong of Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008). According to the court, Plaintiffs did not demonstrate a likelihood of irreparable injury because

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they “failed to submit evidence that the reduction will deny beneficiaries needed services, or that it will create a serious risk of institutionalization. ” Nor, in the view of the court, were Plaintiffs likely to succeed on the merits. Plaintiffs were unlikely to prevail on their ADA/Rehabilitation Act claim because “the State’s budget reduction does not leave individuals with no choice [but] to submit to institutional care to obtain needed services” and because “it is likely that requiring the State to continue current funding levels for personal care services indefinitely would constitute a fundamental alteration in the State’s Medicaid program. ” Implementation of the emergency regulation did not violate due process because “Medicaid recipients are not entitled to notice and a hearing when the State implements a mass change that affects . . . all recipients.” The court rejected Plaintiffs’ Medicaid claims by adopting the reasoning of its order denying Plaintiffs’ motion for a TRO. Finally, the balance of hardships and the public interest favored DSHS because the challenged reductions “do not involve medical care. ” The court conceded that “a few of the plaintiffs” might “ultimately require institutionalization as a result of the State’s reduction in services. ” However, the court found “the possible threat of institutionalization for a few personal care service beneficiaries ” outweighed by “the State’s interest in balancing the competing needs of a host of different state-sponsored social service programs that currently provide aid to a diverse group of medically and financially disadvantaged state residents. ”

Plaintiffs appealed. The district court stayed proceedings, including disposition of the motion for class certification, pending our decision.

II. Standard of Review

We review the denial of a preliminary injunction for abuse of discretion. Alliance for the Wild Rockies, 632 F.3d at 1131. A district court abuses its discretion if it bases its decision “on an erroneous legal standard or clearly erroneous findings of

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fact.” Id. (quoting Lands Council v. McNair , 537 F.3d 981, 986 (9th Cir. 2008) (en banc)). We review a district court’s legal conclusions de novo and its factual findings for clear error. Id. (quoting Lands Council, 537 F.3d at 986-87). In doing so, “we first look to whether the trial court identified and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution . . . resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. ” Winter, 555 U.S. at 20. A preliminary injunction is proper if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest. Alliance for the Wild Rockies , 632 F.3d at 1131-32.

III. Discussion

For the reasons that follow, we conclude that the district court abused its discretion in denying the motion for a preliminary injunction under the standard articulated in Alliance for the Wild Rockies. We reach only Plaintiffs’ claims under the Americans with Disabilities Act ( “ADA”) and the Rehabilitation Act.

A. Irreparable Injury

The 12 named Plaintiffs remaining in this litigation submitted substantial evidence that the emergency regulation threatens them with a serious risk of institutionalization. 1 DSHS

1Two of the original 14 named Plaintiffs no longer allege that they face a risk of institutionalization. Plaintiff M.J.B. has received an ETR increas-

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contested this evidence as to some named Plaintiffs, but as to others it offered either unsubstantiated and conclusory responses or no responses at all. The district court rejected Plaintiffs’ showing by relying on three general rationales. It wrote that Plaintiffs “fail to show a threat of harm because they (1) ascribe the threat of institutionalization to [their] deteriorating medical conditions, unrelated to the provision of personal care services hours; (2) demonstrate ineffective management of currently allocated personal care services hours; or (3) identify non-personal care services as the cause of their predicted institutionalization.” We conclude that the district court did not sufficiently consider individualized evidence that the named Plaintiffs were likely to suffer irreparable injury. We describe three Plaintiffs whose situations illustrate the inadequacy of DSHS’s responses, as well as the inadequacy of the general rationales, to counteract Plaintiffs’ showing of the likelihood of irreparable injury.

1. M.R.

Lead plaintiff M.R., a 37-year-old woman, suffers from severe mental retardation, daily grand and petite mal seizures, scoliosis, cerebral palsy, hypothyroidism, and mood disorder. M.R. lives with her mother, a registered nurse, who provides personal care services. M.R.’s mother assists her with almost all basic activities of daily life, including eating, toilet care, bathing, dressing, medication management, and moving from place to place. She prepares all of M.R.’s meals and feeds M.R. through a tube when she refuses to eat. M.R.’s feeding tube “requires extensive maintenance because the tube was inserted too low and has a tendency to ooze and become infected, and because [M.R.] has a tendency to grab and pull on it.” M.R. is incontinent, wears adult diapers, and cannot use the toilet or clean herself without assistance. “Frequent-

ing her authorized hours, and Plaintiff H.C. has died, for reasons unrelated to the hours reduction.

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ly,” M.R. “has accidents” and “[a]s a result of incontinence, . . . must bathe at least twice a day to remove urine and sometimes feces.” M.R. likes to choose her own clothing, but needs her mother’s assistance to dress and undress herself. Because of her scoliosis and cerebral palsy, M.R. “requires assistance for walking, . . . is unsteady on her feet, . . . has poor balance and unequal leg length, and her knees buckle. ” M.R.’s mother administers her numerous prescription medications through her feeding tube several times a day.

M.R. participates in a Medicaid waiver program administered by DSHS’s Division of Developmental Disabilities. That is, M.R. is eligible for full-time institutional care, see 42 U.S.C. § 1396n(c)(1), WASH. ADMIN. CODE § 388-845-0005, but M.R.’s mother has chosen to care for her at home “because her extensive personal care and medical needs are best served at home . . . . M.R. loves the independence she is afforded by living at home to set her own schedule, do puzzles, color or trace letters, and spend time with [her mother] playing with beads or sorting coins. ” M.R.’s CARE assessment assigned her to group D Medium-High, a designation that entitled her to 236 hours of in-home personal care services per month. As is true of many family providers of personal care services, M.R.’s mother provides more than 236 hours of care per month; the additional hours go uncompensated. The emergency regulation reduced M.R.’s authorized hours of compensated time to 215 per month, a decrease of 8.9 percent.

Before the challenged regulation took effect, a DSHS assessment of M.R. concluded that her household was in “crisis mode” and at “serious risk of failure.” The emergency regulation, M.R.’s mother declared, “will push us, in our already vulnerable situation, over the edge. . . . I will have to find a job outside of the house and cut back the time spent caring for M.R. . . . Already, I am stretched thin and am living on the margin. . . . I cannot provide more care for no pay when already there are insufficient funds to keep our household

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afloat.” M.R.’s mother declared, “[i]f M.R.’s hours are reduced from their present levels, I will have no other option but to take another job, which will require moving M.R. into an institutional facility. I cannot afford to continue giving services at the rate that I have[.] I have to get an outside job, and I know of no other individual, Adult Family Home or Personal Care Provider who can take care of M.R. due to her medical and behavioral issues. ” If M.R.’s mother is forced to take a paying job outside the home, M.R. will lose more than just 21 hours of care per month. She will lose the 21 compensated hours, but she will also lose the uncompensated hours that her mother was previously able to provide because she was not employed outside the home.

Because M.R. has difficulty communicating, is “disruptive and aggressive,” and “makes unwanted physical contact with others . . . by trying to hug them or assault them, ” she will likely suffer in an institutional setting; indeed, she has previously been expelled from two Adult Day Health facilities. Institutional placement will exacerbate M.R.’s already severe mental and physical disabilities. Dr. William Gardner, an expert in habilitative mental health treatment, declared that “[w]hen individuals with . . . developmental disabilities . . . would be able to live successfully in the community, but are institutionalized because of insufficient home and community based support, that is likely to result in frustration, despair, hopelessness, and the severe deterioration of their mental and often physical health.”

In response to M.R.’s factual allegations, DSHS introduced a declaration from Geri-Lyn McNeill, a DSHS program manager. McNeill has never met M.R. McNeill declared that she “spoke to [M.R.’s] case manager[;] he does not believe that the decrease in hours would significantly increase the risk of injury, health deterioration or institutionalization for M.R. ”

The district court found that M.R. had made an insufficient showing of irreparable injury for three reasons, none of them

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specific to M.R. First, the court determined that M.R.’s medical condition, like that of eight other named Plaintiffs (S.J., A.B., An.B., M.B., J.B., J.H., D.W., and C.B.), had “deteriorated since [her] last CARE assessment. ” Consequently, the court was “unable to determine whether the alleged threat of institutionalization [M.R.] face[s] is the result of the State’s reduction in personal care service hours or the deterioration in [her] medical condition[ ].”

This finding misapprehends the law of causation in the context of an irreparable injury inquiry. M.R. did indeed provide evidence that her condition had deteriorated since her July 2010 CARE assessment. She suffered infections and injured her head, back, and chin during grand mal seizures. M.R.’s feeding tube fell out, leaving her with an open wound and causing dehydration. Her replacement feeding tube makes it painful for M.R. to eat and drink, so her mother must give her food and water in smaller, more frequently administered, quantities. M.R.’s mobility has also worsened, making it more difficult for her mother to help her use the toilet and clean herself. M.R.’s decline in health has necessitated more trips to hospitals and physicians for care, and these trips consume more time because M.R. cannot move as easily as she once could.

[1] M.R.’s mother’s filed two declarations. Her first declaration, filed before any of the incidents of deterioration just discussed occurred, established that the reduction in hours would threaten M.R. with institutionalization even in her predeterioration condition. Her second declaration, which described M.R.’s deteriorating condition, showed that the risk of institutionalization had grown, not that it had newly arisen. A plaintiff who seeks preliminary injunctive relief must show “that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. She need not further show that the action sought to be enjoined is the exclusive cause of the injury. See, e.g., Harris v. Bd. of Supervisors , 366 F.3d 754, 766 (9th Cir. 2004). In Harris, we affirmed a preliminary

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injunction barring Los Angeles County from closing one hospital that served indigent patients and reducing the number of beds at another. Id. at 766-67. We determined that the patients had shown that reducing the available public health care facilities would likely cause them irreparable harm that “includes pain, infection, amputation, medical complications, and death due to delayed treatment.” Id. at 766. This was so “[a]lthough delays exist in the stretched county health care system already.” Id. We affirmed because “exacerbation of the current overcrowded situation and additional suffering [could] be avoided” by enjoining the hospital closures. Id.

Likewise, in Brown v. Plata , 131 S. Ct. 1910, 1936-37 (2011), the Supreme Court affirmed an injunction ordering a reduction in California’s prison population even though the constitutional violations that prompted the injunction — systemwide deficiencies in the provision of medical and mental health care — “were caused by factors in addition to overcrowding and . . . reducing crowding in the prisons would not entirely cure the violations.” Id. at 1936. Applying the restrictive standard set forth in the Prison Litigation Reform Act — legislation designed to “curb[ ] the equitable discretion of district courts,” Miller v. French , 530 U.S. 327, 339 (2000) — the Court concluded that overcrowding was a “primary cause” of the constitutional violations. 131 S. Ct. at 1923, 1936 (quoting 18 U.S.C. § 3626(a)(3)(E)(I)). The court reached this conclusion notwithstanding its acknowledgment that “[i]n addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures.” Id. at 1936.

[2] Like many Washington beneficiaries of in home personal care services, M.R. suffers from numerous mental and physical disabilities, some of them degenerative. Her medical condition will worsen over time, and as her health declines she will face an increased risk of institutionalization. That risk

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is not exclusively attributable to the challenged regulation reducing the number of compensated hours of assistance, but the challenged regulation and resulting reduction in hours will exacerbate that risk. The regulation therefore inflicts cognizable irreparable injury for purposes of a preliminary injunction. See Harris, 366 F.3d at 766.

Second, in the alternative, the district court found that M.R. had not shown a likelihood of irreparable injury because there was “evidence controverting the possibility of any harm.” The sole basis in the record for the court’s finding was McNeill’s declaration, which relied on the conclusory opinion of a DSHS case manager who “does not believe that the decrease in hours would significantly increase the risk of injury, health deterioration, or institutionalization for M.R. ” McNeill’s declaration contains neither the detail nor the substantiation necessary to rebut M.R.’s detailed factual showing. See United States v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992) .

Third, the district court concluded that M.R., like four other named Plaintiffs (T.M., M.B., A.B., and A.R.), had not made a showing of cognizable harm because she “argue[s] that [she] face[s] a threat of institutionalization because the budget reduction will reduce available services for supervision, exercise, and medication management.” The court reasoned, “personal care services do not include supervision, exercise, or medication management.” DSHS concedes that the court erred as a matter of law by excluding medication management from personal care services. See WASH. ADMIN. CODE § 388106-0010. Further, the court’s conclusion does not sufficiently take into account M.R.’s evidence. M.R.’s “personal care services” do include supervision, and without such supervision, she faces the threat of institutionalization. M.R.’s mother declared that she “needs constant supervision ” in order to perform activities of daily living and instrumental activities of daily living that constitute covered personal care services. For example, if left unsupervised, M.R. “could wake up, try to get out of bed, and fall with no ability to get up. ”

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Compare WASH. ADMIN. CODE § 388-106-0010 (covered activities of daily living include “bed mobility” and “locomotion in room and immediate living environment”). In addition, M.R. “could have bowel and bladder accidents and be unable to get clean, resulting in skin breakdowns and hospitalization.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered activities of daily living include “toilet use” and “personal hygiene”). M.R. could “pull out the feeding tube ” and therefore “wouldn’t get adequate nutrition or medications on schedule.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered activities of daily living include “eating” and “medication management”).

2. C.B.

Plaintiff C.B., a 55-year-old woman, suffers from spinal stenosis, congestive heart failure, emphysema, hepatitis B and C, chronic bacterial infections, neuropathy in both hands and feet, high blood pressure, depression, and bipolar disorder. C.B. requires assistance with a range of tasks, including cooking, transporting herself to and from appointments with physicians, bathing and dressing herself, and cleaning her home. C.B. participates in Washington’s COPES Medicaid waiver program. The emergency regulation reduced her authorized in-home personal services care hours from 133 to 115 per month, a 13.5 percent decrease. As a result, C.B. stated, her caregiver Tia Davis “will be forced to change her work schedule and cut back the time spent on taking me to and from doctor’s appointments and household chores such as cooking and helping me bathe. ” C.B.’s health will likely suffer because absent Davis’s assistance she will have difficulty transporting herself to doctor’s appointments; will bathe herself and attend to her personal hygiene less capably; will not clean her home, which will exacerbate the symptoms of her bacterial infections; and will feed herself by preparing only microwaveable hot meals, with adverse consequences for her high blood pressure and obesity. If these predictable results occur, C.B. “will face severe deterioration in [her] condition and [will] have to

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seek emergency room care and admission to a nursing home from an even weaker point. ”

DSHS did not respond to C.B.’s evidence. The district court, relying on a single sentence in a declaration in which C.B. stated that her “health has deteriorated,” rejected C.B.’s showing of irreparable injury on the same ground that it rejected the showings made by M.R. and seven other named Plaintiffs. That is, the court stated that it was “unable to determine whether the alleged threat of institutionalization these particular plaintiffs face is the result of the State’s reduction in personal care service hours or the deterioration in their medical conditions.”

[3] The court did not sufficiently analyze C.B.’s individualized evidence and the impact of the emergency regulation on her specific clinical situation. C.B. established that because of the hours reduction, Davis will spend less time with her. Consequently, Davis will cook fewer meals for C.B., so that C.B. will “eat microwaveable instant foods that are generally high in fat and sodium and detrimental to my pre-diabetes, high blood pressure, and obesity. ” Davis “will likely have to spend less time taking C.B. to her doctor’s appointments, ” resulting in compromised care because C.B. “[v]ery rarely . . . has energy to use the paratransit services alone, as she finds it much more cumbersome and more difficult for her to get around without the one-on-one assistance I provide. ” Necessarily, C.B. will bathe and clean her home less often because she can do neither by herself. When C.B. is left alone, her apartment falls into “disarray — pet fur everywhere, dirty dishes in the sink, pet food scattered across the kitchen floor . . . . [T]he inevitable clutter around her apartment also increases her risk of tripping and falling. ”

[4] The reduction in hours places C.B. at risk of institutionalization. Dr. Mitchell LaPlante, an expert in the demography and epidemiology of disability, declared that “[h]aving inadequate levels of help compromises the safety, comfort,

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and hygiene of individuals requiring help with ADLs and IADLs, reducing their ability to live independently and increasing their risk of institutionalization and death. ” Dr. LaPlante declared that “[u]nmet needs are especially serious . . . when individuals go unbathed, remain in the same clothing for an extended period, are left in a bed or chair longer than is acceptable, or are unassisted when they need to go to the bathroom or eat. Because these activities involve satisfying primary biological functions [unmet] need cannot be tolerated for long.”

[5] The reduction in hours, like the risk of institutionalization that the reduction produces, is directly attributable to the emergency regulation, not to C.B.’s deteriorating health. And, as explained above, C.B. was not required to show that the emergency regulation was the exclusive cause of her injury. She need only show that, by depriving her of access to care that is critical to her health, the regulation exacerbates the risk that she will be institutionalized.

3. K.S.

Plaintiff K.S., a 59-year-old woman, suffers from diabetes, congenital glaucoma, macular degeneration, and clinical depression. K.S. participates in Washington’s COPES waiver program. She has undergone hip and knee replacements and has very limited mobility. She uses a walker to move about her home and is susceptible to falls. K.S. requires assistance moving, bathing and dressing herself, cooking, managing her medications, using the toilet, and cleaning herself after accidents. If K.S. experiences incontinence while she is left alone, she must sit on the toilet until a provider arrives to help her undress, bathe, and launder her soiled clothes.

Prior to the challenged regulation, K.S. received 133 hours of in-home personal care services per month. The regulation reduced her authorized monthly hours to 115, a 13.5 percent decrease. To accommodate the reduction in hours, K.S. dis-

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continued weekend care and has “suffered negative physical and mental health consequences. ” For example, K.S. wears compression stockings because she suffers from edema. K.S. cannot remove her stockings without assistance, so when she is unattended for long periods of time, the skin on her legs becomes dry and itchy and develops sores, putting K.S. at risk of infection. Because K.S. cannot lace her shoes without help, she cannot leave her home on the weekends because it is too dangerous for her to walk in slippers. Consequently, she feels “trapped” in her home and “shut off from the world. ” K.S. declared that “[i]t is difficult to get all of my cleaning, shopping, food preparation, bathing and hygiene needs done ” during the hours authorized. Consequently, K.S. is “worried that I would be unable to remain in my home . . . and I very much want to avoid going to an adult group home. Staying in my home gives me a feeling of independence and I believe my mental health condition would deteriorate in an adult day home quickly. Even though I would be able to get more continuous hours of care at a nursing home, the lack of privacy and the lack of independence that I would experience there would be very difficult for me. ”

[6] In response, DSHS introduced a declaration from McNeill, who stated that it was “unclear” why K.S. did not discuss her concerns about going unattended on the weekends with her case manager. Had she done so, McNeill declared, “[a] Care Plan could have been developed with a daily schedule or a schedule with a shorter gap between care. . . . Recipients and providers often believe that more hours are the only solution to problems, but good care planning and effective case management can often create effective alternatives. DSHS believes that could occur here. ” The district court relied on McNeill’s declaration to find that K.S.’s “apparent failure to contact [her] case manager[ ] about [her] concerns is particularly noteworthy. Rather than giving the State an opportunity to correct any gaps in care, [K.S.] appear[s] to assume that the reduction will result in harm and that the only

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alternative to reinstatement of [her] hours is institutionalization.”

[7] McNeill’s declaration ignores the fact that K.S. did contact her case manager to discuss the impact of the hours reduction on her care plan. In a declaration filed before McNeill’s, K.S. stated that after learning of the hours reduction, she “informed my case manager . . . that in order to cope with the announced cuts to my home care hours, I had made the decision to let go of my weekend provider. ” K.S.’s case manager “did not suggest any alternative scheduling arrangements for me to avoid going without weekend care during or any time since that phone call. ” The district court should not have discounted K.S.’s showing of harm on the ground that she should have revised her care plan with her case manager. K.S. had attempted to do just that, but without success.

4. Summary

[8] The detailed evidence introduced to show the adverse impact of the challenged regulation on M.R., C.B., and K.S., as well as the weak responses that DSHS offered to contest that evidence, establish a sufficient likelihood of irreparable injury. Each of the named Plaintiffs has made similar showings of specific ways in which the hours reduction will injure them, but the district court addressed these individualized showings in a generalized fashion .

Our dissenting colleague, Judge Rawlinson, faults us for relying on Plaintiffs’ declarations and not adequately deferring to the district court’s determination regarding irreparable injury. However, as discussed above, the district court relied on an overly strict causation standard and an erroneous assumption that personal care services did not include medication management, and it did not address the facts of the individual Plaintiffs’ cases. Judge Rawlinson implies that the district court discredited the Plaintiffs’ declarations because of their “verbatim or nearly verbatim ” recitations of harm.

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The declarations’ similarities in structure and language are offset by the many different, specific details, such as those described above for M.R., C.B., and K.S., about each named Plaintiff.

[9] We have several times held that beneficiaries of public assistance “may demonstrate a risk of irreparable injury by showing that enforcement of a proposed rule ‘may deny them needed medical care.’ ” Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (quoting Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)), cert. granted on other issue , 131 S. Ct. 992 (2011); see also, e.g., Cal. Pharmacists Ass’n v. Maxwell-Jolly , 596 F.3d 1098, 1113 (9th Cir. 2010), cert. granted on other issue , 131 S. Ct. 992 (2011); Rodde v. Bonta , 357 F.3d 988, 998-99 (9th Cir. 2004); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983). District courts in our circuit have reached the same conclusion. See, e.g., Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 997 (N.D. Cal. 2010) (“[T]he reduction or elimination of public medical benefits is sufficient to establish irreparable harm to those likely to be affected by the program cuts. ”); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1121-22 (N.D. Cal. 2009); Brantley v. Maxwell-Jolly , 656 F. Supp. 2d 1161, 1176-77 (N.D. Cal. 2009).

[10] In its order, the district court emphasized that “[t]his case does not involve . . . the provision of medical care . . . ; rather this case relates solely to in-home personal care services, which consist of non-medical assistance with activities of daily living. ” The court reasoned that “[t]he standard articulated in Beltran and Independent Living Ctr. . . . is not applicable in this case because personal care services are not included within Medicaid’s definition of ‘medical care.’ ” But whether personal care services are included in Medicaid’s definition is not the critical issue. The critical issue is whether the services are necessary to maintain Plaintiffs’ mental or physical health, and to avoid serious risk of institutionalization.

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[11] Under Washington law, DSHS may cover the costs to beneficiaries only for services deemed “medically necessary.” WASH. ADMIN. CODE § 388-501-0050(4)(d). All payments by DSHS, both before and after the promulgation of the challenged regulation, are therefore payments for “medically necessary” services. “Medically necessary” services are defined as those that are “reasonably calculated to prevent, diagnose, correct, cure, alleviate or prevent worsening of conditions in the client that endanger life, or cause suffering or pain, or result in an illness or infirmity, or threaten to cause or aggravate a handicap, or cause physical deformity or malfunction. ” Id. § 388-501-0005. Plaintiffs have shown that the services they will lose as a result of the challenged regulation — which include assistance in feeding, cleaning, and medicating themselves — relate intimately to their mental and physical health. The loss of these services will exacerbate Plaintiffs’ already severe mental and physical difficulties. These predictable consequences will put Plaintiffs at serious risk of institutionalization.2 We therefore conclude that Plaintiffs have shown a likelihood of irreparable injury.

B. Serious Questions Going to the Merits

Plaintiffs argue that the challenged regulation violates the antidiscrimination provisions of the ADA, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a). We conclude that Plaintiffs have at least presented serious questions going to the merits of their ADA and Rehabilitation Act claims. Because the applicable provisions of the ADA and the Rehabilitation Act are “co-extensive,” we discuss both claims together, focusing on the ADA. Sanchez v. Johnson, 416 F.3d 1051, 1062 & n.6 (9th Cir. 2005).

2We do not reach Plaintiffs’ alternative argument that DSHS’s CARE tool measures minimum individual need, such that any departure below hours authorized by the CARE process will necessarily cause irreparable injury.

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In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem. ” 42 U.S.C. § 12101(a)(2). Moreover, Congress found that “discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization, ” id. § 12101(a)(3); and that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, . . . failure to make modifications to existing facilities and practices, . . . [and] . . . segregation, ” id. § 12101(a)(5).

[12] In an attempt to remedy society’s history of discriminating against the disabled — discrimination that included isolating, institutionalizing, and segregating them — the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132; accord 29 U.S.C. § 794(a). The Department of Justice has promulgated regulations implementing the ADA. See 42 U.S.C. § 12134(a). One of the regulations is the so-called “integration mandate,” providing that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. ” 28 C.F.R. § 35.130(d). The “most integrated setting” is the one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible. ” Id. Part 35, App. B (2011). The regulation also provides that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. ” Id. § 35.130(b)(7).

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In Olmstead, the Supreme Court addressed this statutory

and regulatory scheme and reached two conclusions. First, the

Court held that “[u]njustified isolation” of disabled persons

“is properly regarded as discrimination based on disability. ”

527 U.S. at 597; see also Sanchez, 416 F.3d at 1063 (“In Olm-

stead, the Supreme Court interpreted . . . the ADA as forbid-

ding the arbitrary segregation of the disabled in large state

institutions.”). Second, however, the Court held that “[t]he

State’s responsibility, once it provides community-based

treatment to qualified persons with disabilities, is not bound-

less. . . . Sensibly construed, the fundamental-alteration com-

ponent of the reasonable-modifications regulation would

allow the State to show that, in the allocation of available

resources, immediate relief for the plaintiffs would be inequi-

table, given the responsibility the State has undertaken for the

care and treatment of a large and diverse population of per-

sons with . . . disabilities. ” 527 U.S. at 603-04; see also Arc

of Wash. State, 427 F.3d at 619 (“[T]he Court recognized cer-

tain state justifications that would defeat an ADA-based chal-

lenge, for example ‘the States’ need to maintain a range of

facilities for the care and treatment of persons with diverse

. . . disabilities, and the States’ obligation to administer ser-

vices with an even hand.’ ” (quoting Olmstead, 527 U.S. at

597)). The Court held that under the ADA,

“States are

required to provide community-based treatment for persons

with . . . disabilities when the State’s treatment professionals

determine that such placement is appropriate, the affected per-

sons do not oppose such treatment, and the placement can be

reasonably accommodated, taking into account the resources

available to the State and the needs of others with . . . disabili-

ties.” Olmstead, 527 U.S. at 607; accord id. at 587.

The district court rejected Plaintiffs’ ADA claim on two grounds. The court concluded that to state a violation of the ADA’s integration mandate, Plaintiffs were required to show “that the State’s action leaves them no choice but to submit to institutional care to obtain services for which they are otherwise qualified.” In the alternative, the court concluded that

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requiring Washington to maintain in-home personal care services hours at pre-regulation levels “would likely constitute a fundamental alteration of the state’s Medicaid program. ” We take the court’s two conclusions in turn.

[13] First, the district court erred in stating the legal standard under the integration mandate of the ADA. An ADA plaintiff need not show that institutionalization is “inevitable” or that she has “no choice” but to submit to institutional care in order to state a violation of the integration mandate. Rather, a plaintiff need only show that the challenged state action creates a serious risk of institutionalization. The United States Department of Justice ( “DOJ”), the agency that promulgated the regulation containing the integration mandate, 28 C.F.R. § 35.130(d), filed a statement of interest in the district court in which it argued in favor of a preliminary injunction. In its filing, DOJ wrote that “[t]he integration mandate prohibits public entities from pursuing policies that place individuals at risk of unnecessary institutionalization. ” “[I]mminent risk of institutionalization is not required.” Rather, “[t]he elimination of services that have enabled Plaintiffs to remain in the community violates the ADA, regardless of whether it causes them to enter an institution immediately, or whether it causes them to decline in health over time and eventually enter an institution in order to seek necessary care. ”

[14] We afford DOJ’s view considerable respect. Olmstead, 527 U.S. at 597-98 ( “Because the Department is the agency directed by Congress to issue regulations implementing Title II [of the ADA], its views warrant respect. ”). We also defer to an agency’s reasonable interpretation of its own statutorily authorized regulation. Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (citing Fed. Express Corp. v. Holowecki , 552 U.S. 389, 395, 397 (2008)). An agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins , 519 U.S. 452, 461 (1997) (internal quotation marks omitted); Barboza v. Cal. Ass’n of Prof’l

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Firefighters, 650 F.3d 1073, 1079 (9th Cir. 2011) ( “[U]nless an alternative reading is compelled by the regulation’s plain language or by other indications of [the agency’s] intent at the time of the regulation’s promulgation, deference is required. ” (internal quotation marks and citation omitted)).

The district court discounted DOJ’s interpretation of the integration mandate as “a self-serving agency interpretation taken solely in the context of ongoing litigation. ” In Auer, the Supreme Court rejected the argument that an agency position taken in an amicus brief was unworthy of deference:

[T]hat the Secretary’s interpretation comes to us in the form of a legal brief . . . does not, in the circumstances of this case, make it unworthy of deference. The Secretary’s position is in no sense a post hoc rationalization advanced by an agency seeking to defend past agency action against attack. There is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.

519 U.S. at 462 (internal quotation marks and citation omitted); accord Holowecki, 552 U.S. at 397 (deferring to agency’s interpretation of a regulation in an amicus brief); Barrientos, 583 F.3d at 1214 (same). The circumstances in this case are similar to those in Auer. DOJ is not a party and is not “seeking to defend past agency action against attack. ” Its “statement of interest” in the district court under 28 U.S.C. § 517 is comparable to an amicus brief because of its interest in ensuring a proper interpretation and application of the integration mandate. Further, we note that DOJ’s interpretation of the integration mandate in this case is consistent with its interpretation in another case before this court. The district court, and our dissenting colleague, overlook the Supreme Court’s direction about how to treat agency interpretations in such instances.

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DOJ’s interpretation is not only reasonable; it also better effectuates the purpose of the ADA “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. ” 42 U.S.C. § 12101(b)(2). Institutionalization sometimes proves irreversible. Dr. Gardner, Plaintiffs’ expert on habilitative mental health care, declared that “[i]nstitutionalization . . . creates an unnecessary clinical risk that the individual will become so habituated to, and so reliant upon, the programmatic and treatment structures that are found in an inpatient setting that his or her ability to function in less structured, less restrictive, environments may become severely compromised. ” In recognition of this clinical reality, the cases accord with DOJ’s interpretation. See, e.g., V.L., 669 F. Supp. 2d at 1119 (“[P]laintiffs who currently reside in community settings may assert ADA integration claims to challenge state actions that give rise to a risk of unnecessary institutionalization. ”); Brantley, 656 F. Supp. 2d at 1170-71 ( “[T]he risk of institutionalization is sufficient to demonstrate a violation of [the ADA].”); see also, e.g. , Fisher v. Okla. Health Care Auth , 335 F.3d 1175, 1182 (10th Cir. 2003) ( “Olmstead does not imply that disabled persons who, by reason of a change in state policy, stand imperiled with segregation, may not bring a challenge to that state policy under the ADA’s integration regulation without first submitting to institutionalization. ”).

The district court’s second ground for rejecting Plaintiffs’ ADA claim was that requiring DSHS to maintain preregulation levels of personal care services hours would likely constitute a fundamental alteration of the state’s Medicaid plan. We have not previously decided whether a state may assert a fundamental alteration defense where, as here, the state opposes an injunction that would preserve a preexisting program that complies with the ADA. The text of the regulation suggests that the defense is available only to excuse prospective modifications to programs . See 28 C.F.R. § 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices, or procedures . . . unless the

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public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”). Here, Plaintiffs argue that they are seeking to preserve the status quo and prevent modifications to the state’s preexisting program. The Tenth Circuit rejected a fundamental alteration defense in similar circumstances, observing, “[n]or is it clear why the preservation of a program as it has existed for years and as approved by the federal government would fundamentally alter the nature of the program. ” Fisher, 335 F.3d at 1183 (internal quotation marks omitted). However, we need not decide whether the fundamental alteration defense applies in these circumstances because, even if it does, Plaintiffs have at least raised a serious question on the merits about the validity of the defense on the facts.

[15] When evaluating a fundamental alteration defense, a court must consider “not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State’s obligation to mete out those services equitably. ” Olmstead, 527 U.S. at 597. That is, the ADA requires home or community-based placement of disabled persons only if “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities. ” Id. at 607; see also 28 C.F.R. § 35.130(b)(7); Sanchez, 416 F.3d at 1067-68; Arc of Wash. State, 427 F.3d at 618-19. But b udgetary concerns do not alone sustain a fundamental alteration defense. See Fisher, 335 F.3d at 1181 ( “If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.”); see also, e.g. , Townsend, 328 F.3d at 520 (“[E]ven if extension of community-based long term care services to the medically needy were to generate greater expenses for the state’s Medicaid program, it is unclear whether these extra costs would, in fact, compel cutbacks in services to other Medicaid recipients. ”); Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d

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Cir. 2005); Radaszewski v. Maram , 383 F.3d 599, 614 (7th Cir. 2004); Frederick L., 364 F.3d at 495-96; Cota, 688 F. Supp. 2d at 995. DSHS must show how “fund-shifting . . . would disadvantage other segments of the . . . disabled population.” Frederick L., 364 F.3d at 497; see Townsend, 328 F.3d at 520.

[16] At this point in the litigation, it is highly speculative that preliminary injunctive relief for Plaintiffs will compromise care for the rest of Washington’s disabled community to such an extent that Washington’s Medicaid program would be fundamentally altered. Dreyfus, DSHS’s director, filed a declaration in the district court stating that if an injunction were granted the agency “would need to eliminate the Optional State Plan Service of Medicaid Personal Care and put a limit on the number of recipients . . . served under the Long Term Care [42 U.S.C. § 1396n(c)] waivers including COPES and New Freedom.” It is difficult to assess Dreyfus’s dire predictions and to determine, even if they are borne out, whether they would constitute a fundamental alteration. Washington’s legislature has mandated that the state Medicaid plan include the provision of personal care services for the categorically needy, and DSHS has touted COPES as the centerpiece of the legislatively mandated commitment to deinstitutionalization. WASH. REV. CODE § 74.09.520(2). In its briefs, DSHS did not identify specific programs that would necessarily be cut if all or part of the challenged regulation were preliminarily enjoined, nor was counsel able to identify such programs at oral argument. Indeed, DSHS counsel was unable to say with certainty whether the cuts would necessarily come from the Medicaid program, or whether cuts could be made to some other portion of Washington’s budget if Plaintiffs were to prevail in this litigation. See Townsend, 328 F.3d at 520 (to make out fundamental alteration defense, state must show that the “provision of community-based services to medically needy disabled Washingtonians might fundamentally alter its Medicaid programs” (emphasis added)). The state must make a more particularized showing of harm to others in the disabled

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community in order to eliminate serious questions on the merits concerning the validity of the fundamental alteration defense. See Frederick L. , 364 F.3d at 497; Townsend, 328 F.3d at 520.

C. Balance of Hardships

[17] We conclude that the balance of hardships tips sharply in favor of Plaintiffs. As discussed above, the record in this case establishes that the named Plaintiffs suffer severe hardship, made still more severe by the challenged regulation, resulting in a serious risk of institutionalization in violation of the ADA and the Rehabilitation Act. Set against Plaintiffs’ hardship are diffuse and nonspecific hardships asserted by the State. It is clear that money spent on behalf of the Plaintiffs is money that will not be spent on other programs. But it is not clear from the evidence in the record or from the arguments made to us precisely what those other programs are and the extent to which they would be cut. See, e.g., Harris, 366 F.3d at 766 ( “The County suggests that the injunction forces it to cut other important programs . . . . But whether any or all of those programs will actually be impacted by the court’s injunction is much more speculative than the probable injury the chronically ill plaintiffs face absent preliminary injunctive relief.”).

Nor is it clear that the state, on balance, will save money by cutting the services at issue in this case, given the cost to the state of institutionalizing Plaintiffs. We have several times held that the balance of hardships favors beneficiaries of public assistance who may be forced to do without needed medical services over a state concerned with conserving scarce resources. See, e.g., Indep. Living Ctr. , 572 F.3d at 659 (“State budgetary considerations do not therefore, in social welfare cases, constitute a critical public interest that would be injured by the grant of preliminary relief. ”). The balance of hardships favors plaintiffs challenging cuts to state programs “in light of evidence in the record that suggests that

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[the action sought to be enjoined] may have an adverse, rather than beneficial, effect on the State’s budget, such that it would actually save the State money if it maintained [the status quo].” Dominguez v. Schwarzenegger , 596 F.3d 1087, 1098 (9th Cir. 2010); see also Rodde, 357 F.3d at 999-1000. Plaintiffs have advanced such evidence in this case by showing that if program beneficiaries currently treated in their homes transition to more costly institutional care, the state will not realize its anticipated cost savings.

D. Public Interest

The Washington legislature has expressly found that “the public interest would best be served by a broad array of longterm care services that support persons who need such services at home or in the community whenever practicable and that promote individual autonomy, dignity, and choice. ” WASH. REV. CODE § 74.39A.005. “[T]here is a robust public interest in safeguarding access to health care for those eligible for Medicaid, whom Congress has recognized as ‘the most needy in the country.’ ” Indep. Living Ctr. , 572 F.3d at 659 (quoting Schweiker v. Hogan, 457 U.S. 569, 590 (1982)); see also Cal. Pharmacists Ass’n , 596 F.3d at 1114-15 (rejecting the argument that the public interest required that the legislature be able to “exercise its considered judgment in a manner that serves the best interests of both [Medicaid] recipients and the State as a whole, ” despite the state’s argument that “injunctions against payment reductions have forced the State to eliminate many optional [Medicaid] services ”).

[18] We recognize that a preliminary injunction is an “extraordinary remedy never awarded as of right. ” Winter, 555 U.S. at 24. But given the likelihood of irreparable harm to Plaintiffs, the serious questions on the merits raised by their suit, the balance of hardships that tips sharply in their favor, and the statutorily declared policy of the state in favor of the services they seek to preserve, we conclude that the public interest is served by preserving the status quo by means of a

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preliminary injunction. See Rodde, 357 F.3d at 999 n.14 (that Plaintiffs seek “to preserve, rather than alter, the status quo while they litigate the merits of this action also strengthens their position”).

E. Scope of the Injunction

[19] Our conclusion with respect to irreparable injury and risk of institutionalization is limited to the named Plaintiffs. We have stated that “[s]ystem-wide [injunctive] relief is required if the injury is the result of violations of a statute . . . that are attributable to policies or practices pervading the whole system (even though injuring a relatively small number of plaintiffs), or if the unlawful policies or practices affect such a broad range of plaintiffs that an overhaul of the system is the only feasible manner in which to address the class’s injury.” Armstrong v. Davis , 275 F.3d 849, 870 (9th Cir. 2001). The challenged regulation obviously establishes such a policy for a system of care. But Armstrong involved a certified class. Subject to exceptions not applicable here, “[w]ithout a properly certified class, a court cannot grant relief on a class-wide basis. ” Zepeda v. INS , 753 F.2d 719, 728 n.1 (9th Cir. 1984). The district court stayed its decision on class certification pending our ruling on appeal. We conclude that the regulation must be preliminarily enjoined as to the named Plaintiffs. We leave it to the district court to determine on remand whether, in light of this opinion, broader preliminary injunctive relief is appropriate.

Conclusion

The named Plaintiffs have shown a likelihood of irreparable injury because the regulation puts them at serious risk of institutionalization. For the same reason, they have raised a serious question going to the merits of their ADA/ Rehabilitation Act claim. They have also raised a serious question on the merits about the validity of the fundamental alteration defense. The balance of hardships tips sharply in

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Plaintiffs’ favor, and the public interest favors a preliminary injunction. We therefore reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion in this case. It is important to note at the outset that this appeal challenges the denial of a preliminary injunction. Our review is for an abuse of the considerable discretion afforded the district court in making the determination whether a preliminary injunction should be entered. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). So long as the district court “got the law right,” we “will not reverse the district court.” Id. (citation omitted). Our scope of review is necessarily limited. See Sports Form, Inc. v. UPI, Inc ., 686 F.2d 750, 752 (9th Cir. 1982).
In a thoughtful and comprehensive 50-page order, the district court denied the request for a preliminary injunction. As the majority acknowledges, any factual findings made by the district court must be accepted unless clearly erroneous. See Alliance for the Wild Rockies , 632 F.3d at 1131. The district court prefaced its decision by noting its “careful” review” of the 164+ documents filed by the parties and the 5 + hours of oral argument during two hearings. See District Court Order , p. 2 n.4. The district court also recognized that a preliminary injunction is an “extraordinary interlocutory remedy ” that should be the exception rather than the rule. See id. at p. 3 (quoting Winter v. Natural Res. Defense Counsel Inc ., 129 S. Ct. 365, 376 (2008)).
The district court found that not one of the named plaintiffs satisfied the criteria to be placed in the classification reflect-

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ing the highest acuity of need. See id. at p. 10. Keeping in mind that the services at issue are personal care services, and not medical care, the district court determined that the plaintiffs failed to establish a likelihood of irreparable harm. See id. at p. 12 & n.13. The district court relied largely on its determination that the threatened injury (institutionalization) was not imminent. See id. at p. 13 n.14 (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 101-02 (1983)). The district court emphasized that this factor was particularly important where a party seeks to enjoin official action on the part of a State. See id. (noting federalism concern).

The district court underscored the fact that Washington’s assessment mechanism did not reflect the individual need of each program participant. Rather, the assessment reflected the relative acuity of the need for personal care services. See id. at p. 14. The assessment essentially determined what share of the available resources a program participant should be allocated. See id. at p. 15. Because the assessment does not translate into a number of absolute hours of required personal services, the district court concluded that plaintiffs could not persuasively argue that a decrease in the number of personal care services hours resulted in the required showing that institutionalization was imminent. Indeed, the district court found to the contrary. See id. at p. 17 n.20 (referring to evidence in the record that the 2009 reduction in personal care services hours “did not result in any negative consequences to personal care service beneficiaries . . . . ”) (emphasis in the original). Specifically, program participants were not institutionalized due to the decrease in personal care service hours. See id.; see also id. at p. 18 (explaining that since the 2011 reductions went into effect, “over 99% of the sampled records reflected no complaint concerning the adequacy of allotted hours ”).

I recognize that my colleagues in the majority rely on the declarations from the plaintiffs to support their reversal of the district court’s decision. However, without a showing of clear error on the part of the district court judge, it is not enough

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to simply credit one party’s view of the evidence. Actually, Supreme Court precedent dictates exactly the opposite approach. Where there are two views of the evidence presented, and the trier of fact selects one view over the other, no clear error can be shown. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) ( “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. ”) (citations omitted).

In this case, the plaintiffs presented declarations averring that institutionalization was likely if the personal service hours were decreased. The State defendants presented declarations refuting those submitted by the plaintiffs. At this stage of the proceedings and considering our limited standard of review, I am not persuaded that the district court clearly erred in crediting the State’s view of the facts. 1

Ultimately, the district court determined that the plaintiffs’ declarations failed to make an adequate showing of a likely threat of harm because the declarations

(1) ascribe the threat of institutionalization to plaintiffs’ deteriorating medical conditions, unrelated to the provision of personal care service hours; (2) demonstrate ineffective management of currently allocated personal care service hours; or (3) identify non-personal care services as the cause of their predicted institutionalization.

Id. at p. 24. 2

1It is of some interest that the district court noticed that the plaintiffs’ declarations of harm were “repeated verbatim or nearly verbatim throughout the various declarations . . . ” Id. at p. 24 n.30.
2The district court also noted the use of qualifying language in the declarations that rendered them “speculative at best . . . ” Id. at p. 25 n.31.

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The district court described nine plaintiffs whose medical conditions worsened without regard to the decrease in personal care service hours. See id. at pp. 24-25. The district court also credited evidence from the State defendants regarding “[i]nefficient [u]se of [c]urrently [a]llocated [p]ersonal [c]are [s]ervice [h]ours[,]” Id. at pp. 26-27, and the inclusion of non-personal care services in the asserted harm arguments, see id. at pp. 27-28.

Considering the district court’s determination regarding the likelihood of irreparable harm with the required deference to its factual findings, I am not persuaded that we should reverse the district court’s determination.

In my view, a similar conclusion is in order upon review of the district court’s resolution of plaintiffs’ claim predicated on the provisions of the Americans With Disabilities Act (ADA). The thrust of plaintiffs’ argument is that the mandated decrease in personal care services hours violates the ADA requirement that disabled individuals be integrated into the community for services rather than be institutionalized to receive services. According to plaintiffs, the decrease in personal care services hours will result in institutionalization of individuals who could remain in the community if the personal care services hours were maintained at their previous levels. The majority agrees with the plaintiffs’ contention, describing this issue as a serious question going to the merits of plaintiffs’ ADA claims.

The Supreme Court addressed the ADA’s integration provision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). In that case, mental patients were retained in institutional facilities after medical providers concluded that treatment in community-based facilities was appropriate. See id. at 593. The Court held that the ADA required placement in a community-based facility if “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities . . . . ”

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Id. at 587. The Court fully acknowledged that the State had multiple and diverse obligations to its disabled citizens and a concomitant obligation to administer all its services “with an even hand . . . . ” Id. at 597. The Court explained that the State’s obligation to provide a variety of services evenly for all program participants mandated that more leeway be afforded the States in administering those programs. See id. at 605.

Given the leeway that the Supreme Court has instructed must be afforded the States in administering social services programs, the question of whether plaintiffs have raised a serious issue going to the merits is not as cut-and-dried as the majority portrays.

The majority urges “considerable respect” to the Department of Justice’s bald statement that “the elimination of services that have enabled Plaintiffs to remain in the community violates the ADA, regardless of whether it causes them to enter an institution immediately, or whether it causes them to decline in health over time and eventually enter an institution in order to seek necessary care. ” Majority Opinion, pp. 21140-41 (quoting the statement of interest filed by the DOJ). However, the district court was not persuaded that the DOJ’s bald statement was entitled to deference. See District Court Order, p. 39 n.42.

The Supreme Court in Olmstead stopped short of requiring that deference be given to the DOJ’s view. Rather, the Supreme Court stated:

We need not inquire whether the degree of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc . . . . is in order: [i]t is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.

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Olmstead, 527 U.S. at 598 (citation, alteration and internal quotation marks omitted) (emphasis added).

The fact that the district court elected not to defer to the DOJ’s bald, unreasoned statement did not run afoul of the Supreme Court’s permissive view of the deference owed to the DOJ’s interpretation of the integration regulation.

Because I conclude that the plaintiffs have not raised serious questions going to the merits of their claim, and because the district court committed no clear error in finding a lack of irreparable harm, I would affirm the district court’s denial of injunctive relief on those bases. However, I also note that Olmstead contains language supporting the district court’s determination that granting the relief requested by Plaintiffs would likely constitute a fundamental alteration of the State’s plan. See Olmstead, 527 U.S. at 597 ( “In evaluating a State’s fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with . . . disabilities, and the State’s obligation to mete out those services equitably.”). This same rationale supports the district court’s determination that the public interest favors permitting the State to equitably balance the needs of all persons who are served by the Medicaid program rather than requiring the State to accommodate the needs of a discrete subset of that population at the expense of others in need.

Keeping in mind our limited scope of review and the deference owed to the district court’s factual findings, I do not agree that the district court abused its discretion when it denied the requested preliminary injunction. Therefore, I respectfully dissent from the majority opinion.

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 M. R.; S. J.; C. B.; D. W.; A. B.;

M. B.; A N. B.; J. B.; K. S.; T. M.;

A. R.; M. J. B.; J. H.; H. C.; T HE

ARC OF WASHINGTON; SERVICE

EMPLOYEES INTERNATIONAL UNION

No. 11-35026

HEALTHCARE 775NW; P UGET SOUND

D.C. No.

ALLIANCE FOR RETIRED AMERICANS,

2:10-cv-02052-TSZ

Plaintiffs-Appellants,

ORDER

v.

 AMENDING

SUSAN DREYFUS, in her

OPINION AND

professional capacity as Secretary

DENYING

of Washington State Department

REHEARING AND

of Social and Health Services;

AMENDED

WASHINGTON STATE DEPARTMENT OF

OPINION

SOCIAL AND HEALTH SERVICES, a

Department of the State of

Washington,

 Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted June 9, 2011—Seattle, Washington
Filed December 16, 2011 Amended June 18, 2012
Before: Stephen Reinhardt, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.
6957

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Order; Dissent to Order by Judge Bea; Opinion by Judge William A. Fletcher; Dissent to Opinion by Judge Rawlinson

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COUNSEL
Stephen P. Berzon. Eve Hedy Cervantez, Stacey Leyton, Matthew John Murray, Casey Austin Roberts, ALSHULER BERZON LLP, San Francisco, California, Andrea Brenneke, MACDONALD HOAGUE & BAYLESS, Seattle, Washington, for the appellants.

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Edward J. Dee, William T. Stephens, William Bruce Work, OFFICE OF THE WASHINGTON ATTORNEY GENERAL, Olympia, Washington, for the appellees.

ORDER

The opinion filed December 16, 2011, and published at 663 F.3d 1100, is amended as follows:

On page 1107, right column, lines 16-19: delete <The district court stayed proceedings, including disposition of the motion for class certification, pending our decision.>

On page 1121, left column, line 10: change <obviously> to <likely>

On page 1121, left column, lines 17-19: change <The district court stayed its decision on class certification pending our ruling on appeal.> to <At the time we reviewed this appeal, the district court had yet to rule on Plaintiffs’ motion for class certification.>

With these amendments, Judges Reinhardt and W. Fletcher

have voted to deny Plaintiffs-Appellants’ petition for rehear-

ing and Defendants-Appellees’ petition for rehearing and peti-

tion for rehearing en banc. Judge Rawlinson has voted to deny

Plaintiff-Appellants’ petition for rehearing and to

grant

Defendants-Appellees’ petition for rehearing and petition for

rehearing en banc.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f).

The petitions for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or for

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rehearing en banc may be filed. The mandate shall be issued forthwith.

BEA, Circuit Judge, joined by KOZINSKI, Chief Judge, and O’SCANNLAIN, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges, dissenting from denial of rehearing en banc:
This case is one of several recently brought requesting an injunction to block across-the-board decreases in expenditures for social services, enacted to eliminate a state’s budgetary deficits. This, despite the fact that the rate reductions were validly adopted by agency regulation, and despite a state law requirement to prevent deficits in accounts. This, in the name of preventing “discrimination” against disabled persons under the Americans with Disabilities Act (“ADA”). Yet the panel majority sided with the plaintiffs and reversed the denial of a requested preliminary injunction.
Mind you, this case does not involve the provision of certain social services to one group of disabled—those in nursing homes—but not to another group—the disabled residing at their own homes. No, the panel majority’s decision proceeds on the premise that the very reduction of social services currently provided the at-home disabled will risk their going to nursing homes, and that such reduction therefore “discriminates” against the at-home disabled, although not in favor of the disabled in nursing homes, or anyone else. But virtually everything the government does involves discrimination; it is in the nature of laws that they treat some people differently from others. This is not generally impermissible discrimination. Most government spending affects some groups more than others, but that doesn’t mean that the result is impermissible discrimination.
The Supreme Court tells us that discrimination against the disabled may occur when certain social services a state actu-

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ally provides are found only at nursing homes, and not provided at-home. Then the risk arises that the at-home disabled must enter nursing homes, rather than remain at-home. That is discrimination under the ADA. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).

As noted, a divided panel of our court reversed the denial of a requested preliminary injunction to block the reductions here. This decision has the immediate effect of blocking the reductions of services for only the twelve named plaintiffs. But since the decision interprets and applies the ADA, it constitutes binding precedent in our nine Western states, with 20% of the nation’s population. 1

We should have taken this case en banc. The panel majority’s opinion fits the criteria of Federal Rule of Appellate Procedure 35(a) to a tee. The panel majority’s opinion conflicts with precedent of the Supreme Court,2 our court,3 and the Second Circuit.4 It is also a case of exceptional importance. It involves nothing less than the ability of a state to reduce the amount of its totally voluntary and optional Medicaid social welfare expenditures to balance its budget. No doubt that is why California joined Washington to urge us to review the case en banc. The issue is whether state budgetary decisions

1In Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc), our en banc court recently clarified that all published opinions—including those interpreting statutory law at the preliminary injunction stage, as occurred in that case—constitute “law of the circuit,” such that they “constitute[ ] binding authority which must be followed unless and until overruled by a body competent to do so.” Id. at __ n.4 (internal quotation marks omitted).
2Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581 (1999). See infra pp. 6970-74.
3Townsend v. Quasim , 328 F.3d 511 (9th Cir. 2003). See infra pp. 6974-75.
4Rodriguez v. City of New York , 197 F.3d 611 (2d Cir. 1999). See infra pp. 6976-77.

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will be replaced by those of our colleagues, federal appellate judges, by use of a strained interpretation of the ADA.

I. Background

1. The program at issue. Washington has voluntarily elected to pay for “personal care services,” such as feeding, medication management, cooking, and other “physical or verbal assistance with activities of daily living” to certain disabled individuals under its state Medicaid program. See Wash. Rev. Code § 74.39A.009(18). Approximately 45,000 disabled individuals receive personal care services. M.R. v. Dreyfus, 663 F.3d 1100, 1104 (9th Cir. 2011). Some of the providers of personal care services are professionals, but others are family members who take care of their disabled relatives, at state expense. Washington’s receipt of federal Medicaid money for other medical services in no way depends on its provision of these “personal care services.”

Washington devised an individualized assessment system called CARE to determine the number of hours for each aid recipient. Id. Under CARE, “the individual [recipient] is scored on factors such as an individual’s ability to perform daily activities and an individual’s mental status,” and is then assigned to one of 17 groups. Id. (quoting Samantha A. v. Dep’t of Soc. & Health Servs. , 256 P.3d 1138, 1140 (Wash. 2011) (en banc)). In 2010, before the proposed cuts, the most needy group received 416 hours of personal care assistance per month (nearly 14 hours a day, 30 days per month), and the least needy group received 26 hours per month. D. Ct. Order 6.

It is critical to understand, as the district court found and the panel majority’s opinion does not dispute, that although CARE is an individualized assessment based on needs, it is not a guarantee of a minimum level of care needed to keep an individual at home or outpatient locations, rather than in a nursing home. D. Ct. Order 13. To the contrary, the program

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is a flexible one: coverage is dependent in part on how much money the state has.

Washington has used this flexibility to change its payout for personal care service hours a number of times in the last ten years. From 2004 to 2006, the number of hours paid for was on average approximately the same as now, after the most recent (late 2010) cuts.5 When the economy and the collections rose, from 2007-2009, the paid hours allotment increased. Following the recent recession, the state reduced base hours by an average of about 4%; but in early 2010, the state restored those 2009 cuts. Finally, because of the state’s last budget crisis and an executive order of late 2010, the State made the approximately 10% average cuts, which brought the state back down to 2004 to 2006 levels of payments for hours provided. See generally D. Ct. Order 7. Though the number of hours provided has fluctuated, the record shows that Washington has shown consistent success in accomplishing the goal of the integration mandate: keeping the disabled in the community. In every year since 1992, the number of disabled persons in Washington who receive community-based care has increased, while the number of persons who receive nursing home care has decreased. See Exhibit Below.

5As explained below, under the panel majority’s reasoning, even the 2004 to 2006 hours allotment would violate the ADA.

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Two other features of the program must be kept in mind. The first is called the “Exception to the Rule,” or ETR, process. As the panel majority mentioned, a beneficiary who disputes that his allotted hours are adequate for his needs may request an increase in payment for hours of personal services. M.R., 663 F.3d at 1105. What the panel majority does not mention is that the state approved 89% of the ETR requests for additional hours in 2010. D. Ct. Order 7.
Second, Washington’s program is extraordinarily generous. Even after the proposed cuts, Washington pays for up to 393 hours per month for an individual. Of course, even more paid hours are possible through the ETR process. D. Ct. Order 6, Table 1. By contrast, the maximum number of personal care hours authorized in California is 283 per month. Cal. Welf. & Inst. Code § 12303.4(b).
2. The proposed cuts. Washington, like many states, faced a severe budget crisis in 2010. On September 13, 2010,

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Governor Gregoire issued an executive order requiring across-the-board budget cuts because “the national economic downturn” caused “revenues [that] have fallen short of projections,” and the state’s general fund was in danger of running a deficit.6 663 F.3d at 1105. The Department of Social and Health Services adopted a regulation which cut the base hours of CARE recipients, with cuts ranging from 6.3% for those receiving many hours to 18.8% for those receiving fewer. The variation in cuts is based on “the notion that the individuals currently receiving only a handful of personal care service hours per month are the most independent and therefore the least likely to require nursing home care.” D. Ct. Order 8 n.7. Even after the cuts, anyone may still request an ETR to adjust hours upward.7 WAC 388-440-0001.

3. This lawsuit. The plaintiffs are disabled and elderly individuals who receive in-home personal care services through the voluntary “personal services” feature of Washington’s Medicaid program. They are currently proceeding individually, and a motion for class certification was recently stricken without prejudice to its being refiled following the issuance of

6As the panel majority opinion acknowledges, Washington law requires that “[i]f at any time during the fiscal period the governor projects a cash deficit in a particular fund or account . . . the governor shall make acrossthe-board reductions in allotments for that particular fund or account so as to prevent a cash deficit.” 663 F.3d at 1105 (citing Wash. Rev. Code § 43.88.110(7)).
7As of the time of the district court’s order, at least one of the original named plaintiffs had already received additional hours through the ETR process, and this adjustment actually increased his hours over those hours he received before the cuts. Two others who requested ETRs will instead receive a re-assessment of their base CARE classification level. They are likely to be placed into a higher CARE group, and so will probably be entitled to more hours than their previous allotment following the acrossthe-board reduction. Five of the named plaintiffs applied for and were denied extra hours when the state committee determined that the plaintiffs did not require more hours to preserve their health and safety.

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this court’s mandate. See Proposed Order Amending Opinion at 2.8

As relevant here, the plaintiffs allege that the state’s reduction violates the general non-discrimination provision of the ADA, which provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. An implementing regulation, called the “integration mandate” provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 9 28 C.F.R. § 35.130(d). The plaintiffs contend that the state’s reductions in paid hours for “personal services” violate the ADA because “the reduction in hours will substantially increase the risk that they will be institutionalized in order to receive care adequate to maintain their mental and physical health.” M.R., 663 F.3d at 1102.

The district court held over five hours of oral argument and, in an order amply supported by the evidence, found that plaintiffs’ claims of irreparable injury (risk of institutionalization) were unlikely to succeed. He denied a request for a preliminary injunction. D. Ct. Order 2 n.4, 3. The panel majority, over Judge Rawlinson’s dissent, reverses the district court’s legal conclusions and factual findings, and remands for entry of a preliminary injunction as to the named plaintiffs. The injunction prohibits the state from enforcing the reductions against the named plaintiffs, and the panel “leave[s] it to the

8Two advocacy organizations and the union that represents Washington’s home care workers are also plaintiffs in this suit. M.R., 663 F.3d at 1106.
9An “integrated setting” is one where a disabled individual is cared for in a community-type setting (i.e., at-home or outpatient), as opposed to a nursing home.

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district court to determine on remand whether, in light of this opinion, broader preliminary injunctive relief is appropriate.” 663 F.3d at 1121.

II. Reasons to Take This Case En Banc

The district court’s order was correct on the law, on the facts, and on the standard for issuing a preliminary injunction. Now, after this decision, the ADA will block states from making even small, evenhanded cuts to programs which the state has voluntarily added to its Medicaid program. This is so even when the reductions are in response to severe budget deficits, and even when there is no evidence that anyone will be subjected to imminent institutionalization. Somehow, this is all done in the name of prevention of discrimination . Congress, with the passage of the ADA, certainly never contemplated nor sanctioned such a one-way ratchet on governmental spending. We should have gone en banc to correct course.

1. The opinion’s incorrect analysis of the ADA. The panel held that there were “serious questions going to the merits” of whether a 10% cut to services in this voluntary and optional Medicaid program, which is being administered evenhandedly, violates the regulation that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The panel held that, to prevail on a claim under the integration mandate, “a plaintiff need only show that the challenged state action creates a serious risk of institutionalization.” 663 F.3d at 1116.

That is not the law. According to the Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the integration mandate means that “[s]tates are required to provide community-based treatment for persons with . . . disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably

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accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities .” Id. at 607 (emphasis added). But it is not disputed that Washington does “provide community-based treatment for persons with . . . disabilities” on an even-handed—even exemplary—basis.

There is no claim that Washington discriminates against community-based recipients by favoring institutionalized recipients with more or better “services, programs, [or] activities.” See 28 C.F.R. § 35.130(d). Olmstead requires that community-based treatment be provided only after “taking into account the resources available to the State and the needs of others . . . with disabilities.” 527 U.S. at 607. Here, the reductions in personal care service hours were applied in view of “resources available” and on a rational basis depending on need, and not on any discriminatory basis as between the community-based recipient and the institutionalized recipient.

The panel majority seems to view an across-the-board reduction of services to the community-based recipients to be “discrimination” because of the effect the reduction might have: to cause some community-based recipients to seek institutional care. But even the broad view of “discrimination” endorsed in Olmstead requires some form of differential treatment amongst the disabled. What the Supreme Court held in Olmstead is that the disabled are discriminated against if states, without justification, provide services to the institutionalized that are not provided to community-based recipients, thus forcing certain individuals into institutionalized settings.10 See 527 U.S. at 597, 600-01. What Olmstead did not hold— indeed what it specifically stated it was not holding—was that any sort of a level of services must be provided to prevent institutionalization, else the recipient would suffer discrimination.

10Our court explained this principle clearly: “where the issue is the location of services, not whether services will be provided, Olmstead controls.” Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (emphasis in original). See infra pp. 6974-75.

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Indeed, the district court plainly found that the record showed no such discrimination was occurring here, stating that “the record does not reflect that the State is providing services to individuals in institutions that it has declined to provide to individuals living in community-based settings. To the contrary, plaintiffs’ evidence demonstrates that individuals living in community-based settings currently receive more and better care than individuals living in institutions.” D. Ct. Order 36. The panel majority’s opinion unfortunately ignored this finding.

An example might help. If the reduction of personal services were to eliminate specific services from the personal care program—for instance, dressing care services—but that service were to be provided by institutionalized care, that would be discrimination as interpreted by Olmstead: this needed service, provided only in institutions, would require the disabled person to seek institutional care. Here, though, there is no allegation, much less proof, that the state made any cuts to particular personal care services. There is no service at all that was provided in 2009 that is no longer provided after the reductions.

The gravamen of the claim, then, is simply that the plaintiffs want more hours of the personal care services they would receive in their homes following the reductions. It is understandable for the plaintiffs to want more services to be provided at no cost to them. The problem is that the plaintiffs are not entitled to any particular level of services—or a “standard of care”—under the ADA. This is especially so because more services for these plaintiffs necessarily means less for others, since “the State has submitted unrefuted evidence that it will need to make drastic cuts in other state programs if this Court grants plaintiffs’ requested preliminary injunction.” D. Ct. Order 41.11

11The reason the panel majority in M.R. rejected this finding by the district court—a finding which was supported by unrefuted evidence—is:

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The panel’s view of what constitutes “discrimination” conflicts with Olmstead, which explicitly conditioned benefits to community-based recipients on “resources available.” Olmstead condemns only “unjustified isolation.” 427 U.S. at 597 (emphasis added). Now, under M.R., states must provide community-based services in a way that eliminates any “serious risk” that any individual currently receiving in-home services will be transferred to a nursing home. The opinion demands that community-based care meet a certain standard: the program must guarantee that each disabled individual currently receiving benefits in the program is able to continue to live in the community indefinitely. But the ADA requires only non-discrimination in the provision of services amongst the community-based recipients, or between the communitybased recipients and the institutionalized, when a state allocates discretionary resources. The ADA does not require that any particular services be provided, or that any particular level of services be provided. Indeed, the Supreme Court has already rejected the opinion’s view of the ADA:

We do not in this opinion hold that the ADA imposes on the States a “ standard of care” for whatever medical services they render, or that the ADA requires States to “provide a certain level of benefits to individuals with disabilities.” . . . We do hold, however, that States must adhere to the ADA’s non-

“[i]t is clear that money spent on behalf of the Plaintiffs is money that will not be spent on other programs. But it is not clear from the evidence in the record or from the arguments made to us precisely what those other programs are and the extent to which they would be cut.” 663 F.3d at 1119-20. The opinion did not grace us with what details were missing. Should the state submit an entire budget, passed with alternatives, should a panel of judges on this court invalidate some cuts? That would require the court to engage in mini-management for which it is ill-suited. The impossibility of a state’s ever prevailing on the basis of Washington’s showing here is exactly what Olmstead called “unacceptable” because “it would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks.” 527 U.S. at 603.

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discrimination requirement with regard to the services they in fact provide.

Olmstead, 527 U.S. at 603 n.14 (quoting Olmstead, 527 U.S. at 624 (Thomas, J., dissenting)) (emphases added). The Court’s language helps to interpret the integration mandate’s language. 28 C.F.R. § 35.130(d) requires the states to “administer” existing programs and services in the most integrated setting possible, so as to avoid discrimination. The mandate does not require the states to “provide” or “maintain” programs to avoid discrimination.

It gets worse, though, because we too have already rejected

M.R.’s limitless expansion of Olmstead. In Townsend v. Qua-

sim, 328 F.3d 511 (9th Cir. 2003), we properly read Olmstead

to have a limited scope when we stated that “where the issue

is the location of services, not whether services will be pro-

vided, Olmstead controls.” Id. at 517; see also Olmstead, 527

U.S. at 612 (Kennedy, J., concurring in judgment) (“No State

has unlimited resources, and each must make hard decisions

on how much to allocate to treatment of diseases and disabili-

ties. . . . The judgment [regarding resource allocation], how-

ever, is a political one and not within

the reach of the

statute.”). Yet, despite this clear language in Olmstead and the

instruction from our court in Townsend, a new standard of

care based on a recipient’s subjective claims is exactly what

the panel requires from the state of Washington. After M.R.,

that standard can never be reduced.

In the teeth of this precedent, the panel majority’s opinion gives what amounts to controlling interpretive deference to a “statement of interest” the DOJ filed in support of the plaintiffs. See M.R., 663F.3d at 1117. In Olmstead, the Court declined to consider whether to accord deference to the DOJ’s views of the ADA and implementing regulations. 527 U.S. at 598.12 Notwithstanding the Supreme Court’s forbearance, the

12There, the United States participated as amicus at the Supreme Court level. The Court also noted three previous appellate-level amicus briefs,

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panel majority here contends that this “statement of interest,” filed in district court, is the equivalent of an “agency’s interpretation of its own regulation,” which the panel then says is “controlling unless plainly erroneous or inconsistent with the regulation.” M.R., 663 F.3d at 1117 (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)).

This is one leap too far. First, unlike Olmstead, where the United States participated through the appearance of the Solicitor General, the DOJ did not even submit an amicus brief to our court in this appeal, despite the fact that its position lost in district court. Second, a “statement of interest” has not gone through anywhere near the rigorous controls as has a regulation adopted pursuant to the Administrative Procedure Act, or even a Supreme Court amicus brief. Third, in any event, the DOJ’s view leads to a plainly unreasonable interpretation of the plain text of the ADA, so it must be rejected. See Auer, 519 U.S. at 461 (agency interpretation of a regulation not controlling if “plainly erroneous or inconsistent with the regulation” (internal quotation marks omitted)). 13 It is

and observed that “We need not inquire whether the degree of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is in order; [i]t is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Olmstead, 527 U.S. at 598 (1999) (internal quotation marks omitted; alteration in original). Notice also that the Court there referred to whether Chevron deference was in order. The Court did not even mention Auer deference, which is the form of deference used by the panel majority here.
13The panel also ignores the fact that our court has read Auer narrowly and refused to “give controlling deference” to “interpretations of statutes expressed for the first time in case-by-case amicus filings.” Christopher v. SmithKline Beecham Corp. , 635 F.3d 383, 395 (9th Cir. 2011), cert. granted 132 S. Ct. 760 (2011). Moreover, the core principle in Auer that a court should ever substantially defer to an agency’s interpretation of its own regulation, even if validly asked to do so in a brief filed before the tribunal deciding the case, has recently been cast into doubt by subsequent

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plainly unreasonable to claim it is “discrimination” under the ADA when there is an even-handed reduction of a voluntarily-provided welfare benefit and no claim that this reduction will lead to anyone’s imminent institutionalization.

Finally, in imposing on the states a standard of care for per-

sonal care service programs, we do not just depart from bind-

ing Supreme Court precedent. We also create a conflict with

the Second Circuit. In Rodriguez v. City of New York , 197

F.3d 611 (2d Cir. 1999), decided after Olmstead, the Second

Circuit considered a case where a class of mentally-disabled

plaintiffs contended that New York violated the ADA because

the state failed to provide “safety-monitoring services” in its

personal-care services program. Id. at 613. As here, the plain-

tiffs claimed that the state’s failure to do this rendered the per-

sonal care services provided “inadequate to

meet their

medical needs and to allow them to continue living in their

homes.” Id. at 614.

The Second Circuit recognized that this argument does not allege “illegal discrimination against the disabled” but instead presents a challenge to “the substance of the services provided.” Id. at 618. This is because “[t]he ADA requires only that a particular service provided to some not be denied to disabled people.” Id. The court thus rejected the “discrimination” claim. Id. In so doing, the Second Circuit also explained that Olmstead was “inapposite” in such a case because it does not “stand for the proposition that states must provide disabled individuals with the opportunity to remain out of institutions.” Id. at 619. Instead, Olmstead means “only that States must adhere to the ADA’s nondiscrimination requirement with

administrative law cases. See Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring) (“It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity.”).

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regard to the services they in fact provide .” Id. (quoting Olmstead, 527 U.S. at 603 n.14) (emphasis inoriginal).

The bottom line is simple enough: “[T]he disabilities statutes do not guarantee any particular level of medical care for disabled persons, nor assure maintenance of service previously provided.” Rodriguez, 197 F.3d at 619 (quoting Cerpac v. Health and Hosp. Corp., 147 F.3d 165, 168 (2d Cir. 1998)) (emphasis added). Yet “maintenance of service previously provided” is exactly what our court requires in M.R.14

The panel majority’s insistence that Washington state provide a particular standard of care means the remainder of Ninth Circuit states must abandon any attempt to reduce voluntarily-provided, optional personal care services from their current levels. Instead, states are locked into a program they thought voluntary and optional, one not required by Medicaid—and certainly not required to continue at a particular service level. If a 10% reduction in hours in one of the nation’s most generous programs creates a “serious risk of institutionalization,” then it is hard to imagine what other reduction, in any state, will ever fail to meet the “serious risk” standard. This is because Washington state’s entire personal care services program is essentially an at-home substitute for nursing home care. Almost by definition, if this program offers fewer hours and serves fewer people, more people will be at risk of needing to go into a nursing home. But, at worst, that risk is not caused by discrimination in the services actu-

14Rodriguez relied explicitly on the ADA itself, rather than the integration mandate. However, the Second Circuit’s extensive discussion of Olmstead makes clear that its decision is directly applicable in this context, and that, following Rodriguez, the Second Circuit would have decided our case differently. Indeed, our own court has looked to Rodriguez in a case explicitly about the integration mandate, and stated: “ As Rodriguez makes clear, where the issue is the location of services, not whether services will be provided, Olmstead controls.” Townsend, 328 F.3d at 517 (first emphasis added).

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ally provided, but by the lessening of the services previously provided.

Thus, plaintiffs will argue, applying the integration mandate to this type of service in the first place leads inexorably to the conclusion that the states that do not currently participate in this optional program are in violation of the ADA. If cutting personal care hours presents a “serious risk of institutionalization,” the argument will go, surely providing no personal care services at all presents an even bigger risk of institutionalization. Now, after the panel majority’s opinion in M.R., there is no stopping point to the plaintiffs’, activist organizations’, and unions’ claims that the “integration mandate” prohibits any reduction in services to the at-home disabled. This argument is absurd on its face, and we should have taken this case en banc now to stop plaintiffs’ assertion of what they may style as an “inexorable” progression.

2. The opinion’s impermissible factfinding. The panel majority acknowledged in its standard of review section that this court reviews a denial of preliminary injunction for abuse of discretion and that, in so doing, “we first look to whether the trial court identified and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution . . . resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). Our standard was drawn directly from the Supreme Court’s language in Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 577 (1985) (“Based on our own reading of the record, we cannot say that either interpretation of the facts is illogical or implausible. Each has support in inferences that may be drawn from the facts in the record; and if either interpretation had been drawn by a district court on the record before us, we would not be inclined to find it clearly erroneous.”) (emphases added). Yet the panel majority replaces the district court’s amply-supported factual findings with its own findings. The

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opinion fails to keep in mind my colleague Judge Farris’s pithy line characterizing the “appropriate appellate function”: while his colleague in dissent “would retry,” Judge Farris was “content to review.” Li v. Ashcroft, 378 F.3d 959, 964 n.1 (9th Cir. 2004).

The discussion of irreparable harm in the panel opinion focuses nearly exclusively on three of the twelve plaintiffs: M.R., C.B., and K.S. 663 F.3d at 1108-14. The facts the panel majority relates of their conditions are sad and unfortunate, as M.R. and C.B. in particular are severely disabled individuals who require extensive care on a daily basis. The plaintiffs contend that they have “demonstrated a likelihood of irreparable injury because they have shown that reduced access to personal care services will place them at serious risk of institutionalization.” Id. at 1102. The panel majority agreed, overturning the district court’s careful findings to the contrary. The panel majority reversed the district court because the state’s responses to the plaintiffs’ recitations of harm were “weak”15 and the “the district court addressed these individualized showings in a generalized fashion.” Id. at 1114.

On the contrary, the district court did indeed give individu-

alized consideration to each plaintiff. For instance, after citing

the declarations of nine of the named plaintiffs whose “medi-

cal conditions have deteriorated”—a group that includes both

M.R. and C.B.—the district court said that “the Court is

unable to determine whether the alleged threat of institutional-

ization these particular plaintiffs face is the result of

the

State’s reduction in personal care service hours or the deterio-

ration in their medical conditions.” D. Ct. Order 25. In a

lengthy passage, the district court also described evidence that

contradicted the allegations of harm to the plaintiffs arising

from the reduction, and the district court further noted that

15This word is a classic giveaway that the panel majority weighed the evidence anew, rather than applying the standard of appellate review of factfinding demanded by Anderson and Hinkson.

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some of the allegations in the plaintiffs’ declarations were “speculative at best.” Id. at 25 n.31.

The district court also found that certain declarations did not show a likelihood of irreparable injury because plaintiffs had not attempted to raise the hours of personal care they claimed to need through the available ETR process. D. Ct. Order 26-27. For instance, in the case of plaintiff A.R., the district court said that it “can only conclude that the declarations relating to A.R. do not suggest a likelihood of irreparable injury because, until the State has had the opportunity to correct the gap in care through case management, the Court cannot determine whether the threat of harm is the result of the State’s reduction, or the decision by A.R.’s guardian to give preference to the provider’s convenience over A.R.’s care needs.” Id. at 27. The panel opinion does not address this reasoning. Instead, it pretends this finding was not there.

Moreover, the panel majority’s criticism of the district court’s findings as impermissibly general is misplaced. The panel majority does not claim that the district court failed to comply with Fed. R. Civ. P. 52(a)(2), which requires that “[i]n granting or refusing an interlocutory injunction, the court must . . . state the findings [of fact] and conclusions [of law] that support its action.” Instead, the panel majority conflates a criticism of how the district court discussed the evidence with an evaluation of the sufficiency of the evidence itself. This contradicts our circuit’s test for “clear error,” which turns only on whether there was a sufficient evidentiary basis for the determination the district court made, not how the trial court “addressed” the evidence in the record. Here, there was a sufficient evidentiary basis for the district court’s findings.

In 2009, our en banc court closely tracked the Court’s language in Anderson when it stated that factual findings would be overturned only if they were “illogical, implausible, or without support in inferences that may be drawn from the

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facts in the record.” Hinkson, 585 F.3d at 1263 (drawing on and quoting from Anderson, 470 U.S. at 577 (1985)). Yet, in direct contradiction to this mandatory analytical framework, the panel opinion never lets the reader know upon which of these shoals the district court’s factual findings ran aground, or why. This error too demanded en banc review, because it constitutes a three-judge panel’s departure from an en bancapproved standard.

III. The Effect of Our Decision

Under M.R., states will be hard-pressed to reduce benefit levels in voluntarily-provided personal care services programs and, perhaps, in a variety of other voluntary social services programs. This not only departs from the text of the relevant statutes and regulations, but it presents two major practical problems. First, in the near term, states will not be able to balance their budgets. Second, in the longer term, if states do not have flexibility to cut the provision of such services, then they are far less likely to decide to provide the programs in the first place. Both of these cause serious harm to states and their citizens, yet this harm was entirely ignored by the panel majority.

Of course, I am not a state executive or legislative official, charged with administering the state budget, so do not take my word for it. Instead, look at the recent remarks of California Governor Jerry Brown regarding the state’s $16 billion budget deficit. Why is the shortfall so large—and in particular so much larger than the $9 billion deficit forecast only months ago? “Tax receipts are coming in lower than expected,” he said. “And the federal government and the courts have blocked us from making billions in necessary budget reductions.”16 At a press conference on Monday, May 14, 2012, Governor Brown noted:

16See J.J. McGrath, California Budget Gap Widens to $16B from $9B ,

Int’l Business Times (May 13, 2012),

available at http://

www.ibtimes.com/articles/340491/20120513/california-budget-deficit-

taxes-cuts-transcript-video.htm?page=all (emphasis added).

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The fact is we’re in a democratic society. We have so much money from the people, and we’ve got so much spending. We can have it be out of alignment for a while . . . but I’ve committed to getting it into balance. What that means is that things that are good in and of themselves have got to be stopped or curtailed if we’re going to have balance. Otherwise, we borrow and sink deeper into debt, and you see Spain, Portugal, Italy, Ireland, England, they’re all having trouble. While the short-term pain is real, I think the greater good is balancing the revenue with the spending.17

The majority ignores this fundamental reality of our democracy.

The long-term impact of the panel majority’s decision and the inevitable path we will now be forced to follow is that legislators will think long and hard about ever again authorizing such voluntary and optional programs. After all, state legislators and executive officials are not blind to what we do here at the Ninth Circuit. Rather, those who govern in the states in our circuit will see the reductions we have blocked, even to voluntary, optional services like the one here, and then ask themselves: why should we ever go through this battle again? The harm that will come to all of us from these programs foregone—these legislative possibilities left untried—will be hard to measure. But it will be very real.

Fortunately, this is not a result demanded by the ADA, the facts of this case, or the balancing of the equities courts look to in issuing injunctions. Far from it. This result is one manufactured by the panel majority’s stretched reading of the law, its mistreatment of the record, and its arrogation to itself of the factfinding function. We should have gone en banc to cor-

17See Video of Press Conference on May 14, 2012, http://www.calchannel.com/video-on-demand/.

available at

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rect this opinion’s turn toward anti-democratic budgeting by judicial fiat.

OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs, Washington State Medicaid beneficiaries with severe mental and physical disabilities, appeal the district court’s denial of their motion for a preliminary injunction. Plaintiffs seek to enjoin the operation of a regulation promulgated by Washington’s Department of Social and Health Services (“DSHS”) that reduces the amount of in-home “personal care services” available under the state’s Medicaid plan. The United States Department of Justice has filed a “statement of interest” in the district court supporting Plaintiffs’ request for an injunction.
“Personal care services” provide assistance in performing basic life activities — such as eating, bathing, dressing, moving from place to place, and using the toilet — that Plaintiffs, because of their disabilities, cannot perform by themselves. To comply with Governor Christine Gregoire’s executive order that directed an across-the-board reduction in all state agency expenditures, DSHS promulgated a regulation that cut the base hours of covered in-home personal care services by an average of 10 percent per beneficiary per month.
Plaintiffs argue principally that the regulation violates the antidiscrimination provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), because the reduction in hours will substantially increase the risk that they will be institutionalized in order to receive care adequate to maintain their mental and physical health. The district court denied preliminary relief.

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We reverse. We conclude that Plaintiffs have demonstrated a likelihood of irreparable injury because they have shown that reduced access to personal care services will place them at serious risk of institutionalization. We further conclude that Plaintiffs have raised serious questions going to the merits of their Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their favor, and that a preliminary injunction will serve the public interest. See Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011). We therefore remand for entry of a preliminary injunction.

I. Background and Procedural History

A. Factual Background

Medicaid is a cooperative federal-state program under which the federal government provides states with financial assistance to supply medical services to low-income people. Arc of Wash. State Inc. v. Braddock , 427 F.3d 615, 617 (9th Cir. 2005). State participation is voluntary, but once a state chooses to participate, the state must submit for federal approval a plan that complies with federal statutory and regulatory requirements. Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir. 2003). A state plan must cover the cost to eligible people of certain medical services, including inpatient and outpatient hospital care; laboratory and X-ray services; nursing facility care; and services provided by physicians, dentists, nursemidwives, and pediatric or family nurse practitioners. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21); 42 C.F.R. §§ 440.210, 440.220. Within this federal framework, however, states retain “substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage.” Alexander, 469 U.S. at 303; see also Beal v. Doe , 432 U.S. 438, 444 (1977); 42 C.F.R. § 430.0.

States may, but need not, choose to subsidize other types of medical services, including “personal care services,” the ben-

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efit at issue here. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(24). “Personal care services” are:

services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for the mentally retarded, or institution for mental disease that are

(A) . . . authorized for the individual in accordance with a service plan approved by the State,

(B) provided by an individual who is qualified to provide such services and who is not a member of the individual’s family, and

(C) furnished in a home or other location.

Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarifying that a family member is “a legally responsible relative”); CTRS. FOR MEDICARE AND MEDICAID SERVS., STATE MEDICAID MANUAL § 4480(C), at 4-495 (1999) (personal care services “include a range of human assistance provided to persons with disabilities and chronic conditions . . . which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability,” and “most often relate[ ] to . . . eating, bathing, dressing, toileting, transferring, . . . maintaining continence, . . . personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management”).

Washington has elected to cover the cost of personal care services, which the state defines as “physical or verbal assistance with activities of daily living and instrumental activities of daily living provided because of a person’s functional disability.” WASH. REV. CODE § 74.39A.009(18). The state defines “activities of daily living,” in turn, to include bathing,

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bed mobility, body care, dressing, eating, locomotion inside and outside one’s room and immediate living environment, walking in one’s room and immediate living environment, medication management, toilet use, transferring between surfaces, and personal hygiene. W ASH. ADMIN. CODE § 388-1060010. The state defines “instrumental activities of daily living” as including meal preparation, ordinary housework, essential shopping, wood supply when wood is used as one’s sole source of heat, travel to medical services, managing finances, and telephone use. Id.

Washington’s DSHS administers the state’s Medicaid pro-

grams. See 42 U.S.C. § 1396a(a)(5); WASH. REV. CODE

§ 74.09.530. DSHS covers the cost of personal care services

for approximately 45,000 people. Some 15,000 of those bene-

ficiaries are “categorically needy” participants in the state’s

Medicaid plan. The remaining 30,000 beneficiaries participate

in one of Washington’s Medicaid waiver programs, “under

which the Secretary of Health and Human Services is autho-

rized to waive certain Medicaid requirements for innovative

or experimental state health care programs.” Townsend, 328

F.3d at 514. Consistent with Congress’s preference for com-

munity rather than institutional care, “the waiver program

provides Medicaid reimbursement to States for the provision

of community-based services to individuals who would other-

wise require institutional care, upon a showing that the aver-

age annual cost of such services is not more than the annual

cost of institutional services.” Olmstead v. L.C. ex rel. Zim-

ring, 527 U.S. 581, 601 n.12 (1999)

(citing 42 U.S.C.

§ 1396n(c)).

Before Washington may cover the cost of in-home personal care services to participants in a Medicaid waiver program, the state must have made “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.” Id.

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§ 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also, e.g., WASH. ADMIN. CODE § 388-106-0310(4) (participants in Community Options Program Entry Services (“COPES”) waiver program must “need the level of care provided in a nursing facility”); id. §§ 388-106-0410(4), 388-106-0510(4) (same with respect to participants in Medically Needy Residential Waiver (“MNRW”) and Medically Needy In-Home Waiver (“MNIW”) programs); id. § 388-845-0030(2) (developmentally disabled participants in Home and Community-Based Services (“HCBS”) waiver programs must need the level of care provided in an intermediate care facility for the mentally retarded).

DSHS determines the number of hours of in-home personal services care to which a Medicaid beneficiary is entitled through the Comprehensive Reporting Evaluation (“CARE”). See WASH. ADMIN. CODE § 388-106-0050 to -0145. The Washington Supreme Court has described CARE as follows:

In the initial stage of a CARE evaluation, the individual is scored on factors such as an individual’s ability to perform daily activities and an individual’s mental status. The individual is then assigned to 1 of 17 classification groups, each group having a set number of base . . . hours associated with it. Once these base hours are established, an assessor individually considers the recipient’s self-performance and the amount of informal support available for the recipient’s activities of daily living (ADL) and instrumental activities of daily living (IADL). The recipient’s level of informal support for each ADL and IADL then reduces the base hours allocated to that recipient by a predetermined percentage.

Samantha A. v. Dep’t of Soc. & Health Servs., 256 P.3d 1138, 1140 (Wash. 2011) (en banc) (internal citation omitted); see also, e.g., Jenkins v. Wash. Dep’t of Soc. & Health Servs., 157 P.3d 388, 389-90 (Wash. 2007) (en banc). DSHS sets the base

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monthly hours associated with each classification group by regulation. WASH. ADMIN. CODE § 388-106-0125. DSHS conducts CARE reassessments at least annually, or whenever a beneficiary’s ability to care for himself changes. Id. § 388106-0050(1). A beneficiary who disagrees with his CARE evaluation may appeal the evaluation in an administrative hearing. Id. § 388-106-1305. A beneficiary who remains dissatisfied with his allocated hours of assistance may request additional hours through an Exception to Rule (“ETR”). Id. § 388-440-0001. DSHS will grant an ETR when “[t]he client’s situation differs from the majority; . . . [i]t is in the interest of overall economy and the client’s welfare; and [i]t increases opportunities for the client to function effectively.” Id. § 388-440-0001(1)(b)-(d).

Once the CARE evaluation sets the number of hours to which a beneficiary is entitled, the beneficiary and his DSHS case manager work together to design a plan of care that specifies the services that the beneficiary will receive as well as the caregivers who will provide those services. Id. §§ 388106-0045, 388-106-0130. At all times, a beneficiary has the right to choose where he will receive authorized services (for example, in his home, in a residential facility, or in a nursing home), id. § 388-106-0030; to “[t]ake part in and have [his] wishes included in planning [his] care,” id. § 388-1061300(13); and to “[c]hoose, fire, or change” his caregiver, id. § 388-106-1300(14).

On September 13, 2010, Governor Gregoire issued an executive order stating that because of “the national economic downturn” and “revenues [that] have fallen short of projections,” the state’s general fund was in danger of running a deficit. Exec. Order No. 10-04, Ordering Expenditure Reductions in Allotments of State General Fund Appropriations (Sept. 13, 2010), available at http://www.governor.wa.gov/execorders/ eo_10-04.pdf. Governor Gregoire ordered an across-the-board reduction in general fund appropriations to all state agencies, in an amount to be computed by the state’s Office of Finan-

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cial Management. Id; see WASH. REV. CODE § 43.88.110(7) (“If at any time during the fiscal period the governor projects a cash deficit in a particular fund or account . . . the governor shall make across-the-board reductions in allotments for that particular fund or account so as to prevent a cash deficit.”). The Office of Financial Management, in turn, determined that each state agency would be required to reduce its allotment from the general fund by 6.287 percent. See Office of Fin. Mgmt., Allotment Reduction Instructions for Across-theBoard Cuts Mandated by Executive Order 10-04, at 2 (Sept. 16, 2010), available at http://www.ofm.wa.gov/budget/ instructions/allotment/Allotment_reduction_instructions 091610.pdf.

To comply with the governor’s order, DSHS promulgated an emergency regulation that reduced the base monthly hours of in-home personal services care authorized for each CARE classification group, effective January 1, 2011. See Wash. Reg. 11-02-041 (Dec. 30, 2010) (codified at W ASH. ADMIN. CODE § 388-106-0125), available at http://apps.leg.wa.gov/ documents/laws/wsr/2011/02/11-02-041.htm. DSHS applied the lowest percentage reductions to the classification groups composed of the most disabled beneficiaries. See WASH. REV. CODE § 74.09.520(4) (“Any reductions in services made necessary for funding reasons should be accomplished in a manner that assures that priority for maintaining services is given to persons with the greatest need as determined by the assessment of functional disability.”). For example, DSHS reduced the base monthly hours for people in group D High from 277 to 260, a 6.1 percent decrease. Wash. Reg. 11-02-041. By contrast, DSHS reduced the monthly base hours for people in group B Low from 47 to 39, a 17 percent decrease. Id. The average reduction in hours across all groups was about 10 percent. Susan Dreyfus, DSHS’s Director, declared in January 2011 that the reduction in hours would save $19.2 million in the five months then remaining in the 2011 fiscal year. DSHS acknowledged in agency planning documents that “[w]ith reduced hours, in-home clients will have to choose which

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tasks their employees spend their time on and there may not be enough time to complete all tasks.” Moreover, DSHS anticipated that “[a]t the higher percentage reductions, some needed tasks may not be completed on a regular basis. In some cases, a safe in-home plan of care will not be possible and clients may need to go to community residential or nursing facility settings.”

On December 6, 2010, about three weeks before the reduction was to take effect, DSHS mailed notice of the change to beneficiaries. The notice stated that “you will receive fewer personal care hours each month starting January 1, 2011,” set forth the beneficiary’s current and revised monthly hours, and computed the difference. The notice stated that “[t]his notification serves as an amendment to your plan of care. You will need to work with your personal care worker to prioritize tasks within this reduced number of monthly authorized hours.” Finally, the notice explained that DSHS

is making this change in response to the Governor’s September 14th Executive Order 10-04 for 6.3% reductions. This was one of a number of changes made across government to address the State’s revenue shortfall.

There are no appeal rights for this change through the Office of Administrative Hearings because this is a service change directed by the governor and applies to the entire program. We know these changes may be difficult for you. If you have questions or concerns about changes to your services, please contact your case manager.

B. Procedural History

On December 23, 2010, Plaintiffs — 14 recipients of inhome personal services care whose hours were reduced, two advocacy organizations, and a union that represents Washing-

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ton home-care workers — brought suit in federal district court for the Western District of Washington. The 14 individual plaintiffs sued on behalf of a proposed class of “Medicaideligible individuals in the State of Washington living at home who were assessed to need personal care services based upon individualized CARE assessments of their needs and who received these Medicaid services in accordance with their assessment[s] until DSHS reduced their services to below their level of need for budgetary reasons alone.” Plaintiffs alleged that the regulation violated the Americans with Disabilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C. § 794(a), due process, and various statutory and regulatory Medicaid requirements. Plaintiffs sought a declaratory judgment, as well as a temporary restraining order and preliminary and permanent injunctions prohibiting DSHS from implementing the regulation. In the alternative, Plaintiffs sought to enjoin the reduction in hours until beneficiaries received individual CARE reassessments, notice of alternative institutional placements, and administrative hearings.

The district court denied the motion for a TRO and deferred hearing on the motion for a preliminary injunction. Plaintiffs appealed the denial of the motion for a TRO, prompting the district court to stay proceedings and cancel a scheduled hearing on Plaintiffs’ motion for a preliminary injunction. On appeal, a motions panel of this court stayed implementation of the emergency regulation pending the district court’s disposition of the motion for a preliminary injunction. The panel concluded that denial of the TRO was reviewable “because the district court took the hearing for the motion for preliminary injunction off calendar,” making denial of the TRO “tantamount for present purposes to the denial of a motion for a preliminary injunction.” On the merits, the panel determined that a stay pending a hearing on the motion for a preliminary injunction was justified because “[n]o other relief is available that will remedy the irreparable injury which continues to occur pending such hearing.”

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On remand, the district court denied Plaintiffs’ motion for a preliminary injunction. The court determined that Plaintiffs failed to satisfy any prong of Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008). According to the court, Plaintiffs did not demonstrate a likelihood of irreparable injury because they “failed to submit evidence that the reduction will deny beneficiaries needed services, or that it will create a serious risk of institutionalization.” Nor, in the view of the court, were Plaintiffs likely to succeed on the merits. Plaintiffs were unlikely to prevail on their ADA/Rehabilitation Act claim because “the State’s budget reduction does not leave individuals with no choice [but] to submit to institutional care to obtain needed services” and because “it is likely that requiring the State to continue current funding levels for personal care services indefinitely would constitute a fundamental alteration in the State’s Medicaid program.” Implementation of the emergency regulation did not violate due process because “Medicaid recipients are not entitled to notice and a hearing when the State implements a mass change that affects . . . all recipients.” The court rejected Plaintiffs’ Medicaid claims by adopting the reasoning of its order denying Plaintiffs’ motion for a TRO. Finally, the balance of hardships and the public interest favored DSHS because the challenged reductions “do not involve medical care.” The court conceded that “a few of the plaintiffs” might “ultimately require institutionalization as a result of the State’s reduction in services.” However, the court found “the possible threat of institutionalization for a few personal care service beneficiaries” outweighed by “the State’s interest in balancing the competing needs of a host of different state-sponsored social service programs that currently provide aid to a diverse group of medically and financially disadvantaged state residents.”

Plaintiffs appealed.

II. Standard of Review

We review the denial of a preliminary injunction for abuse of discretion. Alliance for the Wild Rockies, 632 F.3d at 1131.

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A district court abuses its discretion if it bases its decision “on

an erroneous legal standard or clearly erroneous findings of

fact.” Id. (quoting Lands Council v. McNair , 537 F.3d 981,

986 (9th Cir. 2008) (en banc)). We review a district court’s

legal conclusions de novo and its factual findings for clear

error. Id. (quoting Lands Council, 537 F.3d at 986-87). In

doing so, “we first look to whether the trial court identified

and applied the correct legal rule to the relief requested. Sec-

ond, we look to whether the trial court’s resolution .

. .

resulted from a factual finding that was illogical, implausible,

or without support in inferences that may be drawn from the

facts in the record.” United States v. Hinkson, 585 F.3d 1247,

1263 (9th Cir. 2009) (en banc).

To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. A preliminary injunction is proper if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest. Alliance for the Wild Rockies , 632 F.3d at 1131-32.

III. Discussion

For the reasons that follow, we conclude that the district court abused its discretion in denying the motion for a preliminary injunction under the standard articulated in Alliance for the Wild Rockies. We reach only Plaintiffs’ claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

A. Irreparable Injury

The 12 named Plaintiffs remaining in this litigation submitted substantial evidence that the emergency regulation threat-

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ens them with a serious risk of institutionalization. 1 DSHS contested this evidence as to some named Plaintiffs, but as to others it offered either unsubstantiated and conclusory responses or no responses at all. The district court rejected Plaintiffs’ showing by relying on three general rationales. It wrote that Plaintiffs “fail to show a threat of harm because they (1) ascribe the threat of institutionalization to [their] deteriorating medical conditions, unrelated to the provision of personal care services hours; (2) demonstrate ineffective management of currently allocated personal care services hours; or (3) identify non-personal care services as the cause of their predicted institutionalization.” We conclude that the district court did not sufficiently consider individualized evidence that the named Plaintiffs were likely to suffer irreparable injury. We describe three Plaintiffs whose situations illustrate the inadequacy of DSHS’s responses, as well as the inadequacy of the general rationales, to counteract Plaintiffs’ showing of the likelihood of irreparable injury.

1. M.R.

Lead plaintiff M.R., a 37-year-old woman, suffers from severe mental retardation, daily grand and petite mal seizures, scoliosis, cerebral palsy, hypothyroidism, and mood disorder. M.R. lives with her mother, a registered nurse, who provides personal care services. M.R.’s mother assists her with almost all basic activities of daily life, including eating, toilet care, bathing, dressing, medication management, and moving from place to place. She prepares all of M.R.’s meals and feeds M.R. through a tube when she refuses to eat. M.R.’s feeding tube “requires extensive maintenance because the tube was inserted too low and has a tendency to ooze and become infected, and because [M.R.] has a tendency to grab and pull

1Two of the original 14 named Plaintiffs no longer allege that they face a risk of institutionalization. Plaintiff M.J.B. has received an ETR increasing her authorized hours, and Plaintiff H.C. has died, for reasons unrelated to the hours reduction.

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on it.” M.R. is incontinent, wears adult diapers, and cannot use the toilet or clean herself without assistance. “Frequently,” M.R. “has accidents” and “[a]s a result of incontinence, . . . must bathe at least twice a day to remove urine and sometimes feces.” M.R. likes to choose her own clothing, but needs her mother’s assistance to dress and undress herself. Because of her scoliosis and cerebral palsy, M.R. “requires assistance for walking, . . . is unsteady on her feet, . . . has poor balance and unequal leg length, and her knees buckle.” M.R.’s mother administers her numerous prescription medications through her feeding tube several times a day.

M.R. participates in a Medicaid waiver program administered by DSHS’s Division of Developmental Disabilities. That is, M.R. is eligible for full-time institutional care, see 42 U.S.C. § 1396n(c)(1), WASH. ADMIN. CODE § 388-845-0005, but M.R.’s mother has chosen to care for her at home “because her extensive personal care and medical needs are best served at home . . . . M.R. loves the independence she is afforded by living at home to set her own schedule, do puzzles, color or trace letters, and spend time with [her mother] playing with beads or sorting coins.” M.R.’s CARE assessment assigned her to group D Medium-High, a designation that entitled her to 236 hours of in-home personal care services per month. As is true of many family providers of personal care services, M.R.’s mother provides more than 236 hours of care per month; the additional hours go uncompensated. The emergency regulation reduced M.R.’s authorized hours of compensated time to 215 per month, a decrease of 8.9 percent.

Before the challenged regulation took effect, a DSHS assessment of M.R. concluded that her household was in “crisis mode” and at “serious risk of failure.” The emergency regulation, M.R.’s mother declared, “will push us, in our already vulnerable situation, over the edge. . . . I will have to find a job outside of the house and cut back the time spent caring for M.R. . . . Already, I am stretched thin and am living on the

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margin. . . . I cannot provide more care for no pay when

already there are insufficient funds to keep our household

afloat.” M.R.’s mother declared, “[i]f M.R.’s hours

are

reduced from their present levels, I will have no other option

but to take another job, which will require moving M.R. into

an institutional facility. I cannot afford to continue giving ser-

vices at the rate that I have[.] I have to get an outside job, and

I know of no other individual, Adult Family Home or Per-

sonal Care Provider who can take care of M.R. due to her

medical and behavioral issues.” If M.R.’s mother is forced to

take a paying job outside the home, M.R. will lose more than

just 21 hours of care per month. She will lose the 21 compen-

sated hours, but she will also lose the uncompensated hours

that her mother was previously able to provide because she

was not employed outside the home.

Because M.R. has difficulty communicating, is “disruptive and aggressive,” and “makes unwanted physical contact with others . . . by trying to hug them or assault them,” she will likely suffer in an institutional setting; indeed, she has previously been expelled from two Adult Day Health facilities. Institutional placement will exacerbate M.R.’s already severe mental and physical disabilities. Dr. William Gardner, an expert in habilitative mental health treatment, declared that “[w]hen individuals with . . . developmental disabilities . . . would be able to live successfully in the community, but are institutionalized because of insufficient home and community based support, that is likely to result in frustration, despair, hopelessness, and the severe deterioration of their mental and often physical health.”

In response to M.R.’s factual allegations, DSHS introduced a declaration from Geri-Lyn McNeill, a DSHS program manager. McNeill has never met M.R. McNeill declared that she “spoke to [M.R.’s] case manager[;] he does not believe that the decrease in hours would significantly increase the risk of injury, health deterioration or institutionalization for M.R.”

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The district court found that M.R. had made an insufficient showing of irreparable injury for three reasons, none of them specific to M.R. First, the court determined that M.R.’s medical condition, like that of eight other named Plaintiffs (S.J., A.B., An.B., M.B., J.B., J.H., D.W., and C.B.), had “deteriorated since [her] last CARE assessment.” Consequently, the court was “unable to determine whether the alleged threat of institutionalization [M.R.] face[s] is the result of the State’s reduction in personal care service hours or the deterioration in [her] medical condition[ ].”

This finding misapprehends the law of causation in the context of an irreparable injury inquiry. M.R. did indeed provide evidence that her condition had deteriorated since her July 2010 CARE assessment. She suffered infections and injured her head, back, and chin during grand mal seizures. M.R.’s feeding tube fell out, leaving her with an open wound and causing dehydration. Her replacement feeding tube makes it painful for M.R. to eat and drink, so her mother must give her food and water in smaller, more frequently administered, quantities. M.R.’s mobility has also worsened, making it more difficult for her mother to help her use the toilet and clean herself. M.R.’s decline in health has necessitated more trips to hospitals and physicians for care, and these trips consume more time because M.R. cannot move as easily as she once could.

[1] M.R.’s mother’s filed two declarations. Her first declaration, filed before any of the incidents of deterioration just discussed occurred, established that the reduction in hours would threaten M.R. with institutionalization even in her predeterioration condition. Her second declaration, which described M.R.’s deteriorating condition, showed that the risk of institutionalization had grown, not that it had newly arisen. A plaintiff who seeks preliminary injunctive relief must show “that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. She need not further show that the action sought to be enjoined is the exclusive cause of the

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injury. See, e.g., Harris v. Bd. of Supervisors , 366 F.3d 754, 766 (9th Cir. 2004). In Harris, we affirmed a preliminary injunction barring Los Angeles County from closing one hospital that served indigent patients and reducing the number of beds at another. Id. at 766-67. We determined that the patients had shown that reducing the available public health care facilities would likely cause them irreparable harm that “includes pain, infection, amputation, medical complications, and death due to delayed treatment.” Id. at 766. This was so “[a]lthough delays exist in the stretched county health care system already.” Id. We affirmed because “exacerbation of the current overcrowded situation and additional suffering [could] be avoided” by enjoining the hospital closures. Id.

Likewise, in Brown v. Plata , 131 S. Ct. 1910, 1936-37 (2011), the Supreme Court affirmed an injunction ordering a reduction in California’s prison population even though the constitutional violations that prompted the injunction — systemwide deficiencies in the provision of medical and mental health care — “were caused by factors in addition to overcrowding and . . . reducing crowding in the prisons would not entirely cure the violations.” Id. at 1936. Applying the restrictive standard set forth in the Prison Litigation Reform Act — legislation designed to “curb[ ] the equitable discretion of district courts,” Miller v. French , 530 U.S. 327, 339 (2000) — the Court concluded that overcrowding was a “primary cause” of the constitutional violations. 131 S. Ct. at 1923, 1936 (quoting 18 U.S.C. § 3626(a)(3)(E)(I)). The court reached this conclusion notwithstanding its acknowledgment that “[i]n addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures.” Id. at 1936.

[2] Like many Washington beneficiaries of in home personal care services, M.R. suffers from numerous mental and physical disabilities, some of them degenerative. Her medical

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condition will worsen over time, and as her health declines she will face an increased risk of institutionalization. That risk is not exclusively attributable to the challenged regulation reducing the number of compensated hours of assistance, but the challenged regulation and resulting reduction in hours will exacerbate that risk. The regulation therefore inflicts cognizable irreparable injury for purposes of a preliminary injunction. See Harris, 366 F.3d at 766.

Second, in the alternative, the district court found that M.R. had not shown a likelihood of irreparable injury because there was “evidence controverting the possibility of any harm.” The sole basis in the record for the court’s finding was McNeill’s declaration, which relied on the conclusory opinion of a DSHS case manager who “does not believe that the decrease in hours would significantly increase the risk of injury, health deterioration, or institutionalization for M.R.” McNeill’s declaration contains neither the detail nor the substantiation necessary to rebut M.R.’s detailed factual showing. See United States v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992).

Third, the district court concluded that M.R., like four other named Plaintiffs (T.M., M.B., A.B., and A.R.), had not made a showing of cognizable harm because she “argue[s] that [she] face[s] a threat of institutionalization because the budget reduction will reduce available services for supervision, exercise, and medication management.” The court reasoned, “personal care services do not include supervision, exercise, or medication management.” DSHS concedes that the court erred as a matter of law by excluding medication management from personal care services. See WASH. ADMIN. CODE § 388106-0010. Further, the court’s conclusion does not sufficiently take into account M.R.’s evidence. M.R.’s “personal care services” do include supervision, and without such supervision, she faces the threat of institutionalization. M.R.’s mother declared that she “needs constant supervision” in order to perform activities of daily living and instrumental activities of daily living that constitute covered personal care

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services. For example, if left unsupervised, M.R. “could wake up, try to get out of bed, and fall with no ability to get up.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered activities of daily living include “bed mobility” and “locomotion in room and immediate living environment”). In addition, M.R. “could have bowel and bladder accidents and be unable to get clean, resulting in skin breakdowns and hospitalization.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered activities of daily living include “toilet use” and “personal hygiene”). M.R. could “pull out the feeding tube” and therefore “wouldn’t get adequate nutrition or medications on schedule.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered activities of daily living include “eating” and “medication management”).

2. C.B.

Plaintiff C.B., a 55-year-old woman, suffers from spinal stenosis, congestive heart failure, emphysema, hepatitis B and C, chronic bacterial infections, neuropathy in both hands and feet, high blood pressure, depression, and bipolar disorder. C.B. requires assistance with a range of tasks, including cooking, transporting herself to and from appointments with physicians, bathing and dressing herself, and cleaning her home. C.B. participates in Washington’s COPES Medicaid waiver program. The emergency regulation reduced her authorized in-home personal services care hours from 133 to 115 per month, a 13.5 percent decrease. As a result, C.B. stated, her caregiver Tia Davis “will be forced to change her work schedule and cut back the time spent on taking me to and from doctor’s appointments and household chores such as cooking and helping me bathe.” C.B.’s health will likely suffer because absent Davis’s assistance she will have difficulty transporting herself to doctor’s appointments; will bathe herself and attend to her personal hygiene less capably; will not clean her home, which will exacerbate the symptoms of her bacterial infections; and will feed herself by preparing only microwaveable hot meals, with adverse consequences for her high blood pres-

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sure and obesity. If these predictable results occur, C.B. “will face severe deterioration in [her] condition and [will] have to seek emergency room care and admission to a nursing home from an even weaker point.”

DSHS did not respond to C.B.’s evidence. The district court, relying on a single sentence in a declaration in which C.B. stated that her “health has deteriorated,” rejected C.B.’s showing of irreparable injury on the same ground that it rejected the showings made by M.R. and seven other named Plaintiffs. That is, the court stated that it was “unable to determine whether the alleged threat of institutionalization these particular plaintiffs face is the result of the State’s reduction in personal care service hours or the deterioration in their medical conditions.”

[3] The court did not sufficiently analyze C.B.’s individualized evidence and the impact of the emergency regulation on her specific clinical situation. C.B. established that because of the hours reduction, Davis will spend less time with her. Consequently, Davis will cook fewer meals for C.B., so that C.B. will “eat microwaveable instant foods that are generally high in fat and sodium and detrimental to my pre-diabetes, high blood pressure, and obesity.” Davis “will likely have to spend less time taking C.B. to her doctor’s appointments,” resulting in compromised care because C.B. “[v]ery rarely . . . has energy to use the paratransit services alone, as she finds it much more cumbersome and more difficult for her to get around without the one-on-one assistance I provide.” Necessarily, C.B. will bathe and clean her home less often because she can do neither by herself. When C.B. is left alone, her apartment falls into “disarray — pet fur everywhere, dirty dishes in the sink, pet food scattered across the kitchen floor . . . . [T]he inevitable clutter around her apartment also increases her risk of tripping and falling.”

[4] The reduction in hours places C.B. at risk of institutionalization. Dr. Mitchell LaPlante, an expert in the demog-

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raphy and epidemiology of disability, declared that “[h]aving inadequate levels of help compromises the safety, comfort, and hygiene of individuals requiring help with ADLs and IADLs, reducing their ability to live independently and increasing their risk of institutionalization and death.” Dr. LaPlante declared that “[u]nmet needs are especially serious . . . when individuals go unbathed, remain in the same clothing for an extended period, are left in a bed or chair longer than is acceptable, or are unassisted when they need to go to the bathroom or eat. Because these activities involve satisfying primary biological functions [unmet] need cannot be tolerated for long.”

[5] The reduction in hours, like the risk of institutionalization that the reduction produces, is directly attributable to the emergency regulation, not to C.B.’s deteriorating health. And, as explained above, C.B. was not required to show that the emergency regulation was the exclusive cause of her injury. She need only show that, by depriving her of access to care that is critical to her health, the regulation exacerbates the risk that she will be institutionalized.

3. K.S.

Plaintiff K.S., a 59-year-old woman, suffers from diabetes, congenital glaucoma, macular degeneration, and clinical depression. K.S. participates in Washington’s COPES waiver program. She has undergone hip and knee replacements and has very limited mobility. She uses a walker to move about her home and is susceptible to falls. K.S. requires assistance moving, bathing and dressing herself, cooking, managing her medications, using the toilet, and cleaning herself after accidents. If K.S. experiences incontinence while she is left alone, she must sit on the toilet until a provider arrives to help her undress, bathe, and launder her soiled clothes.

Prior to the challenged regulation, K.S. received 133 hours of in-home personal care services per month. The regulation

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reduced her authorized monthly hours to 115, a 13.5 percent decrease. To accommodate the reduction in hours, K.S. discontinued weekend care and has “suffered negative physical and mental health consequences.” For example, K.S. wears compression stockings because she suffers from edema. K.S. cannot remove her stockings without assistance, so when she is unattended for long periods of time, the skin on her legs becomes dry and itchy and develops sores, putting K.S. at risk of infection. Because K.S. cannot lace her shoes without help, she cannot leave her home on the weekends because it is too dangerous for her to walk in slippers. Consequently, she feels “trapped” in her home and “shut off from the world.” K.S. declared that “[i]t is difficult to get all of my cleaning, shopping, food preparation, bathing and hygiene needs done” during the hours authorized. Consequently, K.S. is “worried that I would be unable to remain in my home . . . and I very much want to avoid going to an adult group home. Staying in my home gives me a feeling of independence and I believe my mental health condition would deteriorate in an adult day home quickly. Even though I would be able to get more continuous hours of care at a nursing home, the lack of privacy and the lack of independence that I would experience there would be very difficult for me.”

[6] In response, DSHS introduced a declaration from McNeill, who stated that it was “unclear” why K.S. did not discuss her concerns about going unattended on the weekends with her case manager. Had she done so, McNeill declared, “[a] Care Plan could have been developed with a daily schedule or a schedule with a shorter gap between care. . . . Recipients and providers often believe that more hours are the only solution to problems, but good care planning and effective case management can often create effective alternatives. DSHS believes that could occur here.” The district court relied on McNeill’s declaration to find that K.S.’s “apparent failure to contact [her] case manager[ ] about [her] concerns is particularly noteworthy. Rather than giving the State an opportunity to correct any gaps in care, [K.S.] appear[s] to

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assume that the reduction will result in harm and that the only alternative to reinstatement of [her] hours is institutionalization.”

[7] McNeill’s declaration ignores the fact that K.S. did contact her case manager to discuss the impact of the hours reduction on her care plan. In a declaration filed before McNeill’s, K.S. stated that after learning of the hours reduction, she “informed my case manager . . . that in order to cope with the announced cuts to my home care hours, I had made the decision to let go of my weekend provider.” K.S.’s case manager “did not suggest any alternative scheduling arrangements for me to avoid going without weekend care during or any time since that phone call.” The district court should not have discounted K.S.’s showing of harm on the ground that she should have revised her care plan with her case manager. K.S. had attempted to do just that, but without success.

4. Summary

[8] The detailed evidence introduced to show the adverse impact of the challenged regulation on M.R., C.B., and K.S., as well as the weak responses that DSHS offered to contest that evidence, establish a sufficient likelihood of irreparable injury. Each of the named Plaintiffs has made similar showings of specific ways in which the hours reduction will injure them, but the district court addressed these individualized showings in a generalized fashion.

Our dissenting colleague, Judge Rawlinson, faults us for relying on Plaintiffs’ declarations and not adequately deferring to the district court’s determination regarding irreparable injury. However, as discussed above, the district court relied on an overly strict causation standard and an erroneous assumption that personal care services did not include medication management, and it did not address the facts of the individual Plaintiffs’ cases. Judge Rawlinson implies that the district court discredited the Plaintiffs’ declarations because

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of their “verbatim or nearly verbatim” recitations of harm. The declarations’ similarities in structure and language are offset by the many different, specific details, such as those described above for M.R., C.B., and K.S., about each named Plaintiff.

[9] We have several times held that beneficiaries of public assistance “may demonstrate a risk of irreparable injury by showing that enforcement of a proposed rule ‘may deny them needed medical care.’ ” Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (quoting Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)), cert. granted on other issue , 131 S. Ct. 992 (2011); see also, e.g., Cal. Pharmacists Ass’n v. Maxwell-Jolly , 596 F.3d 1098, 1113 (9th Cir. 2010), cert. granted on other issue , 131 S. Ct. 992 (2011); Rodde v. Bonta , 357 F.3d 988, 998-99 (9th Cir. 2004); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983). District courts in our circuit have reached the same conclusion. See, e.g., Cota v. Maxwell-Jolly , 688 F. Supp. 2d 980, 997 (N.D. Cal. 2010) (“[T]he reduction or elimination of public medical benefits is sufficient to establish irreparable harm to those likely to be affected by the program cuts.”); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1121-22 (N.D. Cal. 2009); Brantley v. Maxwell-Jolly , 656 F. Supp. 2d 1161, 1176-77 (N.D. Cal. 2009).

[10] In its order, the district court emphasized that “[t]his case does not involve . . . the provision of medical care . . . ; rather this case relates solely to in-home personal care services, which consist of non-medical assistance with activities of daily living.” The court reasoned that “[t]he standard articulated in Beltran and Independent Living Ctr. . . . is not applicable in this case because personal care services are not included within Medicaid’s definition of ‘medical care.’ ” But whether personal care services are included in Medicaid’s definition is not the critical issue. The critical issue is whether the services are necessary to maintain Plaintiffs’ mental or

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physical health, and to avoid serious risk of institutionalization.

[11] Under Washington law, DSHS may cover the costs to beneficiaries only for services deemed “medically necessary.” WASH. ADMIN. CODE § 388-501-0050(4)(d). All payments by DSHS, both before and after the promulgation of the challenged regulation, are therefore payments for “medically necessary” services. “Medically necessary” services are defined as those that are “reasonably calculated to prevent, diagnose, correct, cure, alleviate or prevent worsening of conditions in the client that endanger life, or cause suffering or pain, or result in an illness or infirmity, or threaten to cause or aggravate a handicap, or cause physical deformity or malfunction.” Id. § 388-501-0005. Plaintiffs have shown that the services they will lose as a result of the challenged regulation — which include assistance in feeding, cleaning, and medicating themselves — relate intimately to their mental and physical health. The loss of these services will exacerbate Plaintiffs’ already severe mental and physical difficulties. These predictable consequences will put Plaintiffs at serious risk of institutionalization.2 We therefore conclude that Plaintiffs have shown a likelihood of irreparable injury.

B. Serious Questions Going to the Merits

Plaintiffs argue that the challenged regulation violates the antidiscrimination provisions of the ADA, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a). We conclude that Plaintiffs have at least presented serious questions going to the merits of their ADA and Rehabilitation Act claims. Because the applicable provisions of the ADA and the Rehabilitation Act are “co-extensive,” we discuss both claims

2We do not reach Plaintiffs’ alternative argument that DSHS’s CARE tool measures minimum individual need, such that any departure below hours authorized by the CARE process will necessarily cause irreparable injury.

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together, focusing on the ADA. Sanchez v. Johnson, 416 F.3d 1051, 1062 & n.6 (9th Cir. 2005).

In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). Moreover, Congress found that “discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization,” id. § 12101(a)(3); and that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, . . . failure to make modifications to existing facilities and practices, . . . [and] . . . segregation,” id. § 12101(a)(5).

[12] In an attempt to remedy society’s history of discriminating against the disabled — discrimination that included isolating, institutionalizing, and segregating them — the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132; accord 29 U.S.C. § 794(a). The Department of Justice has promulgated regulations implementing the ADA. See 42 U.S.C. § 12134(a). One of the regulations is the so-called “integration mandate,” providing that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The “most integrated setting” is the one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Id. Part 35, App. B (2011). The regulation also provides that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would funda-

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mentally alter the nature of the service, program, or activity.” Id. § 35.130(b)(7).

In Olmstead, the Supreme Court addressed this statutory and regulatory scheme and reached two conclusions. First, the Court held that “[u]njustified isolation” of disabled persons “is properly regarded as discrimination based on disability.” 527 U.S. at 597; see also Sanchez, 416 F.3d at 1063 (“In Olmstead, the Supreme Court interpreted . . . the ADA as forbidding the arbitrary segregation of the disabled in large state institutions.”). Second, however, the Court held that “[t]he State’s responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless. . . . Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with . . . disabilities.” 527 U.S. at 603-04; see also Arc of Wash. State, 427 F.3d at 619 (“[T]he Court recognized certain state justifications that would defeat an ADA-based challenge, for example ‘the States’ need to maintain a range of facilities for the care and treatment of persons with diverse . . . disabilities, and the States’ obligation to administer services with an even hand.’ ” (quoting Olmstead, 527 U.S. at 597)). The Court held that under the ADA, “States are required to provide community-based treatment for persons with . . . disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities.” Olmstead, 527 U.S. at 607; accord id. at 587.

The district court rejected Plaintiffs’ ADA claim on two grounds. The court concluded that to state a violation of the ADA’s integration mandate, Plaintiffs were required to show

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“that the State’s action leaves them no choice but to submit to institutional care to obtain services for which they are otherwise qualified.” In the alternative, the court concluded that requiring Washington to maintain in-home personal care services hours at pre-regulation levels “would likely constitute a fundamental alteration of the state’s Medicaid program.” We take the court’s two conclusions in turn.

[13] First, the district court erred in stating the legal standard under the integration mandate of the ADA. An ADA plaintiff need not show that institutionalization is “inevitable” or that she has “no choice” but to submit to institutional care in order to state a violation of the integration mandate. Rather, a plaintiff need only show that the challenged state action creates a serious risk of institutionalization. The United States Department of Justice (“DOJ”), the agency that promulgated the regulation containing the integration mandate, 28 C.F.R. § 35.130(d), filed a statement of interest in the district court in which it argued in favor of a preliminary injunction. In its filing, DOJ wrote that “[t]he integration mandate prohibits public entities from pursuing policies that place individuals at risk of unnecessary institutionalization.” “[I]mminent risk of institutionalization is not required.” Rather, “[t]he elimination of services that have enabled Plaintiffs to remain in the community violates the ADA, regardless of whether it causes them to enter an institution immediately, or whether it causes them to decline in health over time and eventually enter an institution in order to seek necessary care.”

[14] We afford DOJ’s view considerable respect. Olmstead, 527 U.S. at 597-98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II [of the ADA], its views warrant respect.”). We also defer to an agency’s reasonable interpretation of its own statutorily authorized regulation. Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (citing Fed. Express Corp. v. Holowecki , 552 U.S. 389, 395, 397 (2008)). An agency’s interpretation of its own regulation is “control-

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ling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins , 519 U.S. 452, 461 (1997) (internal quotation marks omitted); Barboza v. Cal. Ass’n of Prof’l Firefighters, 650 F.3d 1073, 1079 (9th Cir. 2011) (“[U]nless an alternative reading is compelled by the regulation’s plain language or by other indications of [the agency’s] intent at the time of the regulation’s promulgation, deference is required.” (internal quotation marks and citation omitted)).

The district court discounted DOJ’s interpretation of the integration mandate as “a self-serving agency interpretation taken solely in the context of ongoing litigation.” In Auer, the Supreme Court rejected the argument that an agency position taken in an amicus brief was unworthy of deference:

[T]hat the Secretary’s interpretation comes to us in the form of a legal brief . . . does not, in the circumstances of this case, make it unworthy of deference. The Secretary’s position is in no sense a post hoc rationalization advanced by an agency seeking to defend past agency action against attack. There is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.

519 U.S. at 462 (internal quotation marks and citation omitted); accord Holowecki, 552 U.S. at 397 (deferring to agency’s interpretation of a regulation in an amicus brief); Barrientos, 583 F.3d at 1214 (same). The circumstances in this case are similar to those in Auer. DOJ is not a party and is not “seeking to defend past agency action against attack.” Its “statement of interest” in the district court under 28 U.S.C. § 517 is comparable to an amicus brief because of its interest in ensuring a proper interpretation and application of the integration mandate. Further, we note that DOJ’s interpretation of the integration mandate in this case is consistent with its interpretation in another case before this court. The district court, and our dissenting colleague, overlook the Supreme Court’s

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direction about how to treat agency interpretations in such instances.

DOJ’s interpretation is not only reasonable; it also better effectuates the purpose of the ADA “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Institutionalization sometimes proves irreversible. Dr. Gardner, Plaintiffs’ expert on habilitative mental health care, declared that “[i]nstitutionalization . . . creates an unnecessary clinical risk that the individual will become so habituated to, and so reliant upon, the programmatic and treatment structures that are found in an inpatient setting that his or her ability to function in less structured, less restrictive, environments may become severely compromised.” In recognition of this clinical reality, the cases accord with DOJ’s interpretation. See, e.g., V.L., 669 F. Supp. 2d at 1119 (“[P]laintiffs who currently reside in community settings may assert ADA integration claims to challenge state actions that give rise to a risk of unnecessary institutionalization.”); Brantley, 656 F. Supp. 2d at 1170-71 (“[T]he risk of institutionalization is sufficient to demonstrate a violation of [the ADA].”); see also, e.g. , Fisher v. Okla. Health Care Auth , 335 F.3d 1175, 1182 (10th Cir. 2003) (“ Olmstead does not imply that disabled persons who, by reason of a change in state policy, stand imperiled with segregation, may not bring a challenge to that state policy under the ADA’s integration regulation without first submitting to institutionalization.”).

The district court’s second ground for rejecting Plaintiffs’ ADA claim was that requiring DSHS to maintain preregulation levels of personal care services hours would likely constitute a fundamental alteration of the state’s Medicaid plan. We have not previously decided whether a state may assert a fundamental alteration defense where, as here, the state opposes an injunction that would preserve a preexisting program that complies with the ADA. The text of the regulation suggests that the defense is available only to excuse pro-

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spective modifications to programs.

See 28 C.F.R.

§ 35.130(b)(7) (“A public entity shall make reasonable modi-

fications in policies, practices, or procedures . . . unless the

public entity can demonstrate that making the modifications

would fundamentally alter the nature of the service, program,

or activity.”). Here, Plaintiffs argue that they are seeking to

preserve the status quo and prevent modifications to the

state’s preexisting program. The Tenth Circuit rejected a fun-

damental alteration defense in similar circumstances, observ-

ing, “[n]or is it clear why the preservation of a program as it

has existed for years and as approved by the federal govern-

ment would fundamentally alter the nature of the program.”

Fisher, 335 F.3d at 1183 (internal quotation marks omitted).

However, we need not decide whether the fundamental alter-

ation defense applies in these circumstances because, even if

it does, Plaintiffs have at least raised a serious question on the

merits about the validity of the defense on the facts.

[15] When evaluating a fundamental alteration defense, a

court must consider “not only the cost of providing

community-based care to the litigants, but also the range of

services the State provides others with mental disabilities, and

the State’s obligation to mete out those services equitably.”

Olmstead, 527 U.S. at 597. That is, the ADA requires home

or community-based placement of disabled persons only if

“the placement can be reasonably accommodated, taking into

account the resources available to the State and the needs of

others with . . . disabilities.” Id. at 607; see also 28 C.F.R.

§ 35.130(b)(7); Sanchez, 416 F.3d at 1067-68; Arc of Wash.

State, 427 F.3d at 618-19. But budgetary concerns do not

alone sustain a fundamental alteration defense. See Fisher,

335 F.3d at 1181 (“If every alteration in a program or service

that required the outlay of funds were tantamount to a funda-

mental alteration, the ADA’s integration mandate would be

hollow indeed.”); see also, e.g. , Townsend, 328 F.3d at 520

(“[E]ven if extension of community-based long term care ser-

vices to the medically needy were to generate

greater

expenses for the state’s Medicaid program, it is

unclear

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whether these extra costs would, in fact, compel cutbacks in services to other Medicaid recipients.”); Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d Cir. 2005); Radaszewski v. Maram , 383 F.3d 599, 614 (7th Cir. 2004); Frederick L., 364 F.3d at 495-96; Cota, 688 F. Supp. 2d at 995. DSHS must show how “fund-shifting . . . would disadvantage other segments of the . . . disabled population.” Frederick L., 364 F.3d at 497; see Townsend, 328 F.3d at 520.

[16] At this point in the litigation, it is highly speculative

that preliminary injunctive relief for Plaintiffs will compro-

mise care for the rest of Washington’s disabled community to

such an extent that Washington’s Medicaid program would be

fundamentally altered. Dreyfus, DSHS’s director, filed a dec-

laration in the district court stating that if an injunction were

granted the agency “would need to eliminate the Optional

State Plan Service of Medicaid Personal Care and put a limit

on the number of recipients . . . served under the Long Term

Care [42 U.S.C. § 1396n(c)] waivers including COPES and

New Freedom.” It is difficult to assess Dreyfus’s dire predic-

tions and to determine, even if they are borne out, whether

they would constitute a fundamental alteration. Washington’s

legislature has mandated that the state Medicaid plan include

the provision of personal care services for the categorically

needy, and DSHS has touted COPES as the centerpiece of the

legislatively mandated commitment to deinstitutionalization.

WASH. REV. CODE § 74.09.520(2). In its briefs, DSHS did not

identify specific programs that would necessarily be cut if all

or part of the challenged regulation

were preliminarily

enjoined, nor was counsel able to identify such programs at

oral argument. Indeed, DSHS counsel was unable to say with

certainty whether the cuts would necessarily come from the

Medicaid program, or whether cuts could be made to some

other portion of Washington’s budget if Plaintiffs were to pre-

vail in this litigation. See Townsend, 328 F.3d at 520 (to make

out fundamental alteration defense, state must show that the

“provision of community-based services to medically needy

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disabled Washingtonians might fundamentally alter its Medicaid programs” (emphasis added)). The state must make a more particularized showing of harm to others in the disabled community in order to eliminate serious questions on the merits concerning the validity of the fundamental alteration defense. See Frederick L., 364 F.3d at 497; Townsend, 328 F.3d at 520.

C. Balance of Hardships

[17] We conclude that the balance of hardships tips sharply in favor of Plaintiffs. As discussed above, the record in this case establishes that the named Plaintiffs suffer severe hardship, made still more severe by the challenged regulation, resulting in a serious risk of institutionalization in violation of the ADA and the Rehabilitation Act. Set against Plaintiffs’ hardship are diffuse and nonspecific hardships asserted by the State. It is clear that money spent on behalf of the Plaintiffs is money that will not be spent on other programs. But it is not clear from the evidence in the record or from the arguments made to us precisely what those other programs are and the extent to which they would be cut. See, e.g., Harris, 366 F.3d at 766 (“The County suggests that the injunction forces it to cut other important programs . . . . But whether any or all of those programs will actually be impacted by the court’s injunction is much more speculative than the probable injury the chronically ill plaintiffs face absent preliminary injunctive relief.”).

Nor is it clear that the state, on balance, will save money by cutting the services at issue in this case, given the cost to the state of institutionalizing Plaintiffs. We have several times held that the balance of hardships favors beneficiaries of public assistance who may be forced to do without needed medical services over a state concerned with conserving scarce resources. See, e.g., Indep. Living Ctr. , 572 F.3d at 659 (“State budgetary considerations do not therefore, in social welfare cases, constitute a critical public interest that would

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be injured by the grant of preliminary relief.”). The balance of hardships favors plaintiffs challenging cuts to state programs “in light of evidence in the record that suggests that [the action sought to be enjoined] may have an adverse, rather than beneficial, effect on the State’s budget, such that it would actually save the State money if it maintained [the status quo].” Dominguez v. Schwarzenegger , 596 F.3d 1087, 1098 (9th Cir. 2010); see also Rodde, 357 F.3d at 999-1000. Plaintiffs have advanced such evidence in this case by showing that if program beneficiaries currently treated in their homes transition to more costly institutional care, the state will not realize its anticipated cost savings.

D. Public Interest

The Washington legislature has expressly found that “the public interest would best be served by a broad array of longterm care services that support persons who need such services at home or in the community whenever practicable and that promote individual autonomy, dignity, and choice.” WASH. REV. CODE § 74.39A.005. “[T]here is a robust public interest in safeguarding access to health care for those eligible for Medicaid, whom Congress has recognized as ‘the most needy in the country.’ ” Indep. Living Ctr. , 572 F.3d at 659 (quoting Schweiker v. Hogan, 457 U.S. 569, 590 (1982)); see also Cal. Pharmacists Ass’n , 596 F.3d at 1114-15 (rejecting the argument that the public interest required that the legislature be able to “exercise its considered judgment in a manner that serves the best interests of both [Medicaid] recipients and the State as a whole,” despite the state’s argument that “injunctions against payment reductions have forced the State to eliminate many optional [Medicaid] services”).

[18] We recognize that a preliminary injunction is an “extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24. But given the likelihood of irreparable harm to Plaintiffs, the serious questions on the merits raised by their suit, the balance of hardships that tips sharply in their favor,

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and the statutorily declared policy of the state in favor of the services they seek to preserve, we conclude that the public interest is served by preserving the status quo by means of a preliminary injunction. See Rodde, 357 F.3d at 999 n.14 (that Plaintiffs seek “to preserve, rather than alter, the status quo while they litigate the merits of this action also strengthens their position”).

E. Scope of the Injunction

[19] Our conclusion with respect to irreparable injury and risk of institutionalization is limited to the named Plaintiffs. We have stated that “[s]ystem-wide [injunctive] relief is required if the injury is the result of violations of a statute . . . that are attributable to policies or practices pervading the whole system (even though injuring a relatively small number of plaintiffs), or if the unlawful policies or practices affect such a broad range of plaintiffs that an overhaul of the system is the only feasible manner in which to address the class’s injury.” Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir. 2001). The challenged regulation likely establishes such a policy for a system of care. But Armstrong involved a certified class. Subject to exceptions not applicable here, “[w]ithout a properly certified class, a court cannot grant relief on a class-wide basis.” Zepeda v. INS , 753 F.2d 719, 728 n.1 (9th Cir. 1984). At the time we reviewed this appeal, the district court had yet to rule on Plaintiffs’ motion for class certification. We conclude that the regulation must be preliminarily enjoined as to the named Plaintiffs. We leave it to the district court to determine on remand whether, in light of this opinion, broader preliminary injunctive relief is appropriate.

Conclusion

The named Plaintiffs have shown a likelihood of irreparable injury because the regulation puts them at serious risk of institutionalization. For the same reason, they have raised a serious question going to the merits of their ADA/

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Rehabilitation Act claim. They have also raised a serious question on the merits about the validity of the fundamental alteration defense. The balance of hardships tips sharply in Plaintiffs’ favor, and the public interest favors a preliminary injunction. We therefore reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion in this case. It is important to note at the outset that this appeal challenges the denial of a preliminary injunction. Our review is for an abuse of the considerable discretion afforded the district court in making the determination whether a preliminary injunction should be entered. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). So long as the district court “got the law right,” we “will not reverse the district court.” Id. (citation omitted). Our scope of review is necessarily limited. See Sports Form, Inc. v. UPI, Inc ., 686 F.2d 750, 752 (9th Cir. 1982).
In a thoughtful and comprehensive 50-page order, the district court denied the request for a preliminary injunction. As the majority acknowledges, any factual findings made by the district court must be accepted unless clearly erroneous. See Alliance for the Wild Rockies , 632 F.3d at 1131. The district court prefaced its decision by noting its “careful” review” of the 164+ documents filed by the parties and the 5+ hours of oral argument during two hearings. See District Court Order, p. 2 n.4. The district court also recognized that a preliminary injunction is an “extraordinary interlocutory remedy” that should be the exception rather than the rule. See id. at p. 3 (quoting Winter v. Natural Res. Defense Counsel Inc ., 129 S. Ct. 365, 376 (2008)).

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The district court found that not one of the named plaintiffs satisfied the criteria to be placed in the classification reflecting the highest acuity of need. See id. at p. 10. Keeping in mind that the services at issue are personal care services, and not medical care, the district court determined that the plaintiffs failed to establish a likelihood of irreparable harm. See id. at p. 12 & n.13. The district court relied largely on its determination that the threatened injury (institutionalization) was not imminent. See id. at p. 13 n.14 (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 101-02 (1983)). The district court emphasized that this factor was particularly important where a party seeks to enjoin official action on the part of a State. See id. (noting federalism concern).

The district court underscored the fact that Washington’s assessment mechanism did not reflect the individual need of each program participant. Rather, the assessment reflected the relative acuity of the need for personal care services. See id. at p. 14. The assessment essentially determined what share of the available resources a program participant should be allocated. See id. at p. 15. Because the assessment does not translate into a number of absolute hours of required personal services, the district court concluded that plaintiffs could not persuasively argue that a decrease in the number of personal care services hours resulted in the required showing that institutionalization was imminent. Indeed, the district court found to the contrary. See id. at p. 17 n.20 (referring to evidence in the record that the 2009 reduction in personal care services hours “did not result in any negative consequences to personal care service beneficiaries . . . .”) (emphasis in the original). Specifically, program participants were not institutionalized due to the decrease in personal care service hours. See id.; see also id. at p. 18 (explaining that since the 2011 reductions went into effect, “over 99% of the sampled records reflected no complaint concerning the adequacy of allotted hours”).

I recognize that my colleagues in the majority rely on the declarations from the plaintiffs to support their reversal of the

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district court’s decision. However, without a showing of clear error on the part of the district court judge, it is not enough to simply credit one party’s view of the evidence. Actually, Supreme Court precedent dictates exactly the opposite approach. Where there are two views of the evidence presented, and the trier of fact selects one view over the other, no clear error can be shown. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”) (citations omitted).

In this case, the plaintiffs presented declarations averring that institutionalization was likely if the personal service hours were decreased. The State defendants presented declarations refuting those submitted by the plaintiffs. At this stage of the proceedings and considering our limited standard of review, I am not persuaded that the district court clearly erred in crediting the State’s view of the facts. 1

Ultimately, the district court determined that the plaintiffs’ declarations failed to make an adequate showing of a likely threat of harm because the declarations

(1) ascribe the threat of institutionalization to plaintiffs’ deteriorating medical conditions, unrelated to the provision of personal care service hours; (2) demonstrate ineffective management of currently allocated personal care service hours; or (3) identify non-personal care services as the cause of their predicted institutionalization.

Id. at p. 24. 2

1It is of some interest that the district court noticed that the plaintiffs’ declarations of harm were “repeated verbatim or nearly verbatim throughout the various declarations . . .” Id. at p. 24 n.30.
2The district court also noted the use of qualifying language in the declarations that rendered them “speculative at best . . .” Id. at p. 25 n.31.

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The district court described nine plaintiffs whose medical conditions worsened without regard to the decrease in personal care service hours. See id. at pp. 24-25. The district court also credited evidence from the State defendants regarding “[i]nefficient [u]se of [c]urrently [a]llocated [p]ersonal [c]are [s]ervice [h]ours[,]” Id. at pp. 26-27, and the inclusion of non-personal care services in the asserted harm arguments, see id. at pp. 27-28.

Considering the district court’s determination regarding the likelihood of irreparable harm with the required deference to its factual findings, I am not persuaded that we should reverse the district court’s determination.

In my view, a similar conclusion is in order upon review of the district court’s resolution of plaintiffs’ claim predicated on the provisions of the Americans With Disabilities Act (ADA). The thrust of plaintiffs’ argument is that the mandated decrease in personal care services hours violates the ADA requirement that disabled individuals be integrated into the community for services rather than be institutionalized to receive services. According to plaintiffs, the decrease in personal care services hours will result in institutionalization of individuals who could remain in the community if the personal care services hours were maintained at their previous levels. The majority agrees with the plaintiffs’ contention, describing this issue as a serious question going to the merits of plaintiffs’ ADA claims.

The Supreme Court addressed the ADA’s integration provision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). In that case, mental patients were retained in institutional facilities after medical providers concluded that treatment in community-based facilities was appropriate. See id. at 593. The Court held that the ADA required placement in a community-based facility if “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities . . . .”

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Id. at 587. The Court fully acknowledged that the State had multiple and diverse obligations to its disabled citizens and a concomitant obligation to administer all its services “with an even hand . . . .” Id. at 597. The Court explained that the State’s obligation to provide a variety of services evenly for all program participants mandated that more leeway be afforded the States in administering those programs. See id. at 605.

Given the leeway that the Supreme Court has instructed must be afforded the States in administering social services programs, the question of whether plaintiffs have raised a serious issue going to the merits is not as cut-and-dried as the majority portrays.

The majority urges “considerable respect” to the Department of Justice’s bald statement that “the elimination of services that have enabled Plaintiffs to remain in the community violates the ADA, regardless of whether it causes them to enter an institution immediately, or whether it causes them to decline in health over time and eventually enter an institution in order to seek necessary care.” Majority Opinion, pp. 21140-41 (quoting the statement of interest filed by the DOJ). However, the district court was not persuaded that the DOJ’s bald statement was entitled to deference. See District Court Order, p. 39 n.42.

The Supreme Court in Olmstead stopped short of requiring that deference be given to the DOJ’s view. Rather, the Supreme Court stated:

We need not inquire whether the degree of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc . . . . is in order: [i]t is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.

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Olmstead, 527 U.S. at 598 (citation, alteration and internal quotation marks omitted) (emphasis added).

The fact that the district court elected not to defer to the DOJ’s bald, unreasoned statement did not run afoul of the Supreme Court’s permissive view of the deference owed to the DOJ’s interpretation of the integration regulation.

Because I conclude that the plaintiffs have not raised serious questions going to the merits of their claim, and because the district court committed no clear error in finding a lack of irreparable harm, I would affirm the district court’s denial of injunctive relief on those bases. However, I also note that Olmstead contains language supporting the district court’s determination that granting the relief requested by Plaintiffs would likely constitute a fundamental alteration of the State’s plan. See Olmstead, 527 U.S. at 597 (“In evaluating a State’s fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with . . . disabilities, and the State’s obligation to mete out those services equitably.”). This same rationale supports the district court’s determination that the public interest favors permitting the State to equitably balance the needs of all persons who are served by the Medicaid program rather than requiring the State to accommodate the needs of a discrete subset of that population at the expense of others in need.

Keeping in mind our limited scope of review and the deference owed to the district court’s factual findings, I do not agree that the district court abused its discretion when it denied the requested preliminary injunction. Therefore, I respectfully dissent from the majority opinion.