IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, KENNETH ROMAN, *

DENISE HODGES and RICKII AINEY, *

on behalf of themselves and all others

*

similarly situated,

*

*

Plaintiffs,

*

*

v.

*

*

BRUCE GREENSTEIN, in his official *

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

LOUISIANA DEPARTMENT OF

*

HEALTH AND HOSPITALS,

*

*

Defendants

*

CA. NO. JUDGE: MAGISTRATE JUDGE: CLASS ACTION

__________________________________

COMPLAINT INTRODUCTION 1. This civil rights action seeks to prevent nearly 11,000 low-income people with severe disabilities from losing services that they have been receiving to live in the community and to prevent them from being institutionalized in nursing facilities. Defendants have assessed each of these people, have determined that each meets the Louisiana nursing facility level of care, and have identified their specific needs for support to conduct their activities of daily living in the community. 2. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Rickii Ainey, 30, have severe disabilities and multiple chronic conditions, including paralyses, strokes, chronic heart failures, arthritis, multiple sclerosis, as well as other impairments as enumerated below.

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3. The Plaintiffs all require assistance with activities of daily living, including but not limited to assistance with bathing, dressing, toileting, eating, bowel and bladder care, meal preparation and clean up, shopping, and laundry, and have been receiving such assistance in their homes as part of Defendants’ Medicaid-funded Long Term-Personal Care Services Program (“LT-PCS”). Plaintiffs are active in their communities. 4. The named and class Plaintiffs are all low-income and are recipients of Medicaidfunded services, including those services that they currently receive in the community and whose reductions are the subject of their lawsuit. 5. None of them wants to leave their homes, friends, and families and to go into a nursing home in order to receive the same Medicaid-funded services that they presently receive in the community. They are all at risk of institutionalization if their Long TermPersonal Care Services are reduced and capped as defendants propose. JURISDICTION AND VENUE 6. This action for declaratory and injunctive relief arises under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (“ADA”); the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”); the Medicaid Act, 42 U.S.C. §1396a(a)(3); 42 U.S.C. § 1983; and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 7. The Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiffs’ causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794(a).
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8. Venue is proper because a substantial part of the actions and omissions of which Plaintiffs allege occurred in this District. 28 U.S.C. § 1391(b). PLAINTIFFS 9. Helen Pitts is a 78 year old resident of Denham Springs, Louisiana. She is a recipient of Medicaid benefits from the State of Louisiana. She has a disability as defined in § 12102(2)(A) of the ADA and a “handicap” as defined in Section 504. 10. Kenneth Roman is a 47 year old resident of Jeanerette, Louisiana. He is a recipient of Medicaid benefits from the State of Louisiana. He has a disability as defined in § 12102(2)(A) of the ADA and a “handicap” as defined in Section 504. 11. Denise Hodges is a 53 year old resident of Bossier City, Louisiana. She is a recipient of Medicaid benefits from the State of Louisiana. She has a disability as defined in § 12102(2)(A) of the ADA and a “handicap” as defined in Section 504. 12. Rickii Ainey is a 30 year old resident of New Orleans, Louisiana. She is a recipient of Medicaid benefits from the State of Louisiana. She has a disability as defined in § 12102(2)(A) of the ADA and a “handicap” as defined in Section 504. DEFENDANTS 13. Bruce Greenstein is the Secretary of the Louisiana Department of Health and Hospitals (“DHH”). He is sued in his official capacity. The Secretary of DHH is responsible for the oversight, supervision and control of the DHH and its divisions, and is ultimately responsible for ensuring that the DHH’s services for people with disabilities are provided in conformance with federal laws, including the ADA and Section 504, as well as Medicaid.
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14. DHH is the chief health policy and planning entity for the state. It receives

federal financial assistance and is responsible for administering Louisiana’s Medicaid

Program. DHH is the “single state agency” that operates Louisiana’s Medicaid program,

see 42 U.S.C. § 1396a(a)(5). It licenses, certifies, and approves Medicaid payments to

Louisiana’s Medicaid nursing homes, and administers its home- and community-based

programs, including the Elderly and Disabled Adult Waiver and Long-Term Personal

Care Services programs for people with disabilities.

THE AMERICANS WITH DISABILITIES ACT

15. Title II of the Americans with Disabilities Act (ADA) provides that “no

qualified individual with a disability shall, by reason of 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 such entity.” 42 U.S.C. § 12132.

16.

Under the ADA, institutionalization and segregation are prohibited forms of

discrimination against individuals with disabilities, 42 U.S.C. §12101(a)(3) and (5). The

ADA therefore requires that a public entity administer its 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).

17. The ADA prohibits “exclusionary qualifications standards and criteria” and

“relegation to lesser services, programs, … benefits, or other opportunities,” 42 U.S.C.

§12101(a)(5), and therefore the regulations implementing Title II provide that “a public

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

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

individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have

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the purpose or effect of defeating or substantially impairing accomplishment of the

objectives of the entity’s program with respect to individuals with disabilities....” 28

C.F.R. § 35.130(b)(3).

18. Defendant DHH is a public entity under Title II of the ADA and its

implementing regulations.

SECTION 504 OF THE REHABILITATION ACT

19. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794a, provides:

No otherwise qualified individual with a disability in the United States .., shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….

20. Regulations implementing Section 504 require a recipient of federal financial

assistance to administer its services, programs, and activities in “the most integrated

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

§41.51(d).

21. Regulations implementing Section 504 prohibit recipients of Federal financial

assistance from:

[u]tiliz[ing] criteria or methods of administration... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the...effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons. 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(i) and (ii).

22.

Defendants’ Medicaid program receives Federal financial assistance and must

comply with Section 504 and its implementing regulations. Federal Medicaid funds

make up 81.48% of Louisiana Medicaid payments, including LT-PCS.

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THE LONG TERM PERSONAL SERVICES PROGRAM 23. The Medicaid program, authorized by Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq., is a joint federal-state program. Medicaid is a cost-sharing arrangement under which the federal government reimburses a portion of the expenditures incurred by states that elect to furnish medical assistance to individuals whose income and resources are insufficient to cover the costs of their medical care. The purpose of Medicaid is to furnish, as far as practicable, “medical assistance on behalf of...aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services” and “to help such families and individuals to attain or retain capability for independence or self-care....” 42 U.S.C. § 1396. 24. States are not required to participate in the Medicaid program, but, if they choose to do so, they must operate their programs within federal statutory and regulatory provisions. They must adopt a State Plan that delineates the standards for determining eligibility and identifies the extent of Medicaid benefits. Louisiana has chosen to participate in the Medicaid program and has adopted a State Plan. 25. The Secretary of the United States Department of Health and Human Services administers the Medicaid program at the federal level through the Centers for Medicare and Medicaid Services (“CMS”), which has urged states pursuant to the ADA to avoid unnecessary institutionalization of person with disabilities in nursing facilities. 26. One of the programs available through Louisiana’s State Medicaid Plan is LTPCS. The Medicaid Act authorizes states to provide attendant care services under the federal Personal Care Option, 42 U.S.C. §1396d(a)(24).
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27. The services of a personal care worker include assistance with basic personal care, toileting and grooming activities; assistance with bladder and/or bowel requirements or problems; assistance with eating and food preparation; performance of incidental household chores; accompanying to medical appointments; and grocery shopping. Personal care services are normally provided in the recipient's home, though they can be delivered in another location outside of the recipient's home if the provision of these services allows the recipient to participate in community activities. 28. To qualify for LT-PCS in Louisiana, a person must meet the requirements for a nursing facility level of care, and must also meet one of the following eligibility criteria: (1) be residing in a nursing facility and could be discharged if community-based services were available; (2) be likely to require nursing facility admission within the next 120 days; (3) have a primary care-giver who has a disability or is over the age of 70; or (4) face a substantial possibility of deterioration in mental or physical condition or functioning if either home and community-based services or nursing facility services are not provided in less than 120 days. Louisiana Administrative Code 50:XV.Chapter 129, §12505(A); Louisiana Register V. 29 No. 6 (June 20, 2003) pp. 911-13. 29. LT-PCS must be prior authorized by DHH after an annual assessment to ensure the person continues to meet eligibility criteria. As a person’s needs change, the amount of LT-PCS services he or she receives in the community can change accordingly. 30. Defendants’ annual review of each LT-PCS recipient determines the specific amount of services in hours that the person requires. 31. Since the inception of the LT-PCS program in 2003, DHH has used an assessment tool called the Minimum Data Set-Home Care (“MDS-HC”) to assess the need for LT-
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PCS. Until March 1, 2009, the maximum amount of LT-PCS that a person could receive was 56 hours per week. The actual allocation of service hours was based on the person’s level of need for assistance on each of seven activities of daily living or “ADL’s” (bed mobility, transferring, locomotion (in and out of the home), dressing (upper and lower body), eating, toileting, personal hygiene and bathing) and eight “instrumental activities of daily living” or “IADL’s” (meal preparation, ordinary housework, managing finances, managing medication, phone use, shopping and transportation). 32. Beginning March 1, 2009, DHH, while it continued to use the MDS-HC, began using a different scoring system called the “RUG III/HC” to assign LT-PCS recipients a maximum number of hours of LT-PCS. The maximum number of hours that any LTPCS recipient could receive was reduced from 56 to 42 hours per week. 33. In August 2010, DHH announced that it was again changing the method of deciding the number of hours allocated and reducing the maximum number of hours of LT-PCS service that recipients could receive, from 42 to 32 hours a week. 34. DHH has announced that the number of hours that an individual can receive will be based on the individual’s score using an “ADL index.” The “ADL index” is a composite of scores as to how much assistance individuals need with only four activities of daily living: eating, toileting, transferring, and moving around in bed. The maximum number of LT-PCS hours that an LT-PCS recipient will be able to receive varies with the person’s score on the ADL index, from a low of 18 hours to a high of 32 hours, regardless of a person’s actual need for more hours. 35. Nationally, the mean number of hours of personal assistance services that persons who require assistance for four ADLs receive per week is 85.9 hours, and the mean
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number of hours persons who require assistance for five ADLs receive per week is 118.5

hours.

36. The reduction in maximum hours that Defendants are imposing on the LT-PCS

program will be implemented for assessments of new LT-PCS recipients and for the

annual reassessments of current recipients that take place after September 5, 2010.

37. The reduction in maximum hours that Defendants are imposing on the LT-PCS

program is being imposed for purely budgetary reasons and is not based on the needs of

the persons who have been receiving LT-PCS services.

38. This budgetary reduction will deprive LT-PCS recipients of critical services that

have previously been found necessary to permit these individuals to remain safely in their

homes. At the present time, Plaintiff Helen Pitts has been approved to receive 39 hours a

week of LT-PCS, Kenneth Roman 39 hours a week, Denise Hodges 39 hours a week and

Rickii Ainey 41 hours of LT-PCS a week, the minimal number of hours Defendants had

determined that each Plaintiff requires.

39. The reduction in LT-PCS hours violates the Americans with Disabilities Act, 42

U.S.C. § 12132 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §

794(a) (“Section 504”), and the federal regulations implementing these statutes, by

placing LT-PCS recipients at risk of unnecessary institutionalization in nursing homes.

DUE PROCESS AND MEDICAID STATUTE VIOLATIONS

40.

Under the Medicaid Act and the Due Process Clause of the Fourteenth

Amendment, Defendants’ notice of termination or reduction of Medicaid benefits must

provide adequate and meaningful information so that a recipient can determine whether

or not the proposed reduction was properly done.

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41. Based on information and belief, the notices that DHH will send to recipients upon initial assessment, or following their annual assessments, after September 5, 2010, will not give the factual basis of the Department’s decision as to how many hours of LTPCS they are approved to receive in terms that are understandable to the recipient. The notices will be inadequate to explain to recipients the basis of the Department’s decision, or to assist recipients in deciding whether to appeal and how to challenge the Department’s decision if they should decide to appeal. 42. The reduction of services to Plaintiffs and similarly-situated class members based on such notices violates the Medicaid Act, 42 U.S.C. §1396a(a)(3), 42 C.F.R. §431.200 et seq.; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and 42 U.S.C. §1983. Plaintiffs seek to enjoin DHH from reducing longterm care services to them and to others who are similarly situated without first giving them a meaningful opportunity to understand, review, and, where appropriate, challenge the Department's action. NAMED PLAINTIFFS’ NEEDS FOR PERSONAL CARE Helen Pitts 43. Helen Pitts is 78 years old. She lives in Denham Springs, Louisiana, and has lived in the Baton Rouge area since 1979. She raised three children and worked as a sales clerk and as a sitter for people who were ill before she retired at the age of 65 and began taking care of her elderly parents. She is divorced and lives alone. 44. Ms. Pitts has had osteo- and rheumatoid arthritis, fibromyalgia, and congestive heart failure since the early 1980’s. She was diagnosed with lymphedema two to three years ago. Approximately two years ago, she had two cancerous tumors removed from
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her leg. She requires the use of oxygen daily and at night. She is in constant pain in her legs, arms, shoulders and back as a result of the fibromyalgia and lymphedema. 45. Ms. Pitts is eligible for and receives Medicaid. Her sole source of income is $519 per month from Supplemental Security Income and $175 per month in Social Security retirement benefits. 46. LT-PCS services are essential to keep Ms. Pitts healthy, to enable her to live in the community and to avoid her having to enter a nursing facility. Ms. Pitts needs assistance getting in and out of bed and getting in and out of her motorized scooter, which she requires for ambulation. She needs help going to the bathroom because she cannot get on and off the toilet without help, needs help pulling her clothes up and down, and needs help cleaning herself (in part to avoid decubitus ulcers). She has incontinent episodes daily. She needs help bathing, dressing and performing most of her personal hygiene. 47. Because of the pain and her lack of mobility, Ms. Pitts is unable to prepare meals, do her laundry or attend to household chores. 48. Ms. Pitts must use a motorized scooter to independently ambulate, and she uses a walker to walk very short distances such as from her bed to the bathroom. 49. Because of her health issues, she must visit her doctor regularly. She needs her LT-PCS personal assistant to not only help her prepare to go to the doctor, but also to bring her to the doctor. Because she is often at the doctor’s office for a couple of hours, she is exhausted afterwards and requires help with a meal and undressing. 50. At Ms. Pitts most recent reassessment, she was allocated 39 hours of LT-PCS per week.
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51. Prior to the most recent reassessment, Ms. Pitts lacked sufficient LT-PCS and her health declined significantly. There were days when she could not eat because she did not have the strength to make a sandwich, much less prepare a meal. She could not get to the grocery for food and had to depend on sporadic assistance from neighbors and from her elderly brother. She was hospitalized several times. 52. Since October, 2009, Ms. Pitts has received 39 hours per week of LT-PCS. This has made a great difference in her health. 53. Even with the present 39 hours per week of LT-PCS, there are tasks that at times are not accomplished or completed in a timely manner. Ms. Pitts’ physical care takes so much time that sometimes personal care assistant cannot do the household chores, such as laundry or shopping. 54. Ms. Pitts’ brother is 81 years old and her only local relative and support. Due to his own health problems, he cannot provide his sister with any physical assistance. 55. Ms. Pitts wants to stay in her own home and continue receiving the support that she needs. She does not want to go into a nursing home. Kenneth Roman 56. Plaintiff Kenneth Roman is 47 years old and has lived in Jeanerette, Louisiana for most of his life. He worked as a hairdresser and as a cook until 2002, when his health problems forced him to retire. 57. Mr. Roman was determined eligible for Social Security Disability benefits in 2002. He $52 per month in Social Security Disability Insurance and $640 per month in Supplemental Security Income.
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58. Kenneth Roman has had several strokes. As a result of the strokes, Mr. Roman has left side hemiparesis. He also has diabetes, congestive heart failure, peripheral vascular disease, hypertension, coronary artery disease, renal failure and irritable bowel syndrome. 59. Plaintiff Roman has also had several heart attacks, the most recent of which was in 2009. 60. Mr. Roman uses a four-pronged cane for support and mobility. However, he often falls while using the cane due to his left side hemiparesis 61. Plaintiff Kenneth Roman is Medicaid eligible and receives LT-PCS services. He lives alone in a trailer. His parents live nearby, but both of are elderly and are themselves disabled. They are unable to assist him. 62. Mr. Roman is currently separated from his wife. One of the primary reasons they are separated is because his wife did not want to be his caregiver any longer. 63. Due to his impairments, Plaintiff Roman needs assistance with all of his activities of daily living. He is incontinent and needs assistance cleaning after an incontinence episode. This is even more important when his irritable bowel syndrome occurs. He is often incontinent of bowel and bladder at night and often must wait until his personal care worker arrives in the morning to assist with cleaning. 64. Plaintiff Roman needs assistance changing to a standing position from a sitting position. He needs help bathing, washing his face and brushing his teeth. He has difficulty moving in bed and often is not able to move in bed when he has no assistance. Not moving during the night causes him severe pain. As a result of the pain, he often falls in the morning when he tries to walk.
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65. When Mr. Roman was first determined eligible for the LT-PCS program in 2008, he was assessed and determined to need 47 hours per week of personal care services. In 2009, Mr. Roman was reassessed and his LT-PCS services were reduced 39 hours per week. 66. The reduction of LT-PCS to 39 hours per week has been very difficult for him. For example, because his physical care needs are great, his shopping, laundry and household chores (such as washing bed linens soiled in incontinence episodes) are not done promptly. In addition, he must wait longer periods of time to be cleaned if he has a bowel or bladder accident when his caregiver is not present. 67. Kenneth Roman is active in his church, where his father has been the pastor. He has several friends that are part of the church with whom he prays. 68. Mr. Roman can safely live at home with 39 hours of LT-PCS services. If his LT-PCS hours are reduced, he believes that he would be forced to seek care in a nursing home. Mr. Roman wants to stay home where he can continue to be part of his community. Denise Hodges 69. Plaintiff Denise Hodges is 53 years old and has lived in Bossier City, Louisiana since 1983. She has worked as a model, a cosmetologist, and an accountant/bookkeeper. 70. Ms. Hodges was diagnosed with transverse myelitis in 1989 that left her paralyzed from the waist down. 71. In 2001, Ms. Hodges was diagnosed with multiple sclerosis.
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72. Ms. Hodges became eligible for Medicaid in 1994. She receives $610 per month

in Social Security Disability Insurance and $81 per month in Supplemental Security

Income.

73. From 1989 to 2007, Plaintiff Hodges’ husband provided assistance with all her

activities of daily living. However, in 2007, he was diagnosed with Lyme disease, and

moved to live with his parents in Atlanta, Texas (approximately 75 miles away).

74. Due to her multiple sclerosis, Ms. Hodges has frequent extreme fatigue and loss

of stabilitiy. She requires extensive assistance transferring, dressing, toileting and

bathing. She needs help pushing her manual wheelchair. She needs assistance with

personal hygiene, meal preparation, shopping, laundry and household chores.

75. Ms. Hodges requires digital stimulation in order to have a bowel movement. Her

personal care workers must assist her with cleaning herself and any laundry that must be

done as a result of bowel movements.

76. Ms. Hodges has a decubitis ulcers on one of her heels and on her lower spine.

These are extremely dangerous and potentially life-threatening. These decubitis ulcers

developed because she has not had adequate LT-PCS services to help assure that she does

not sit or recline in one place for more than two hours at a time. She needs assistance

transferring in and out of the bed and in and out of the wheelchair.

77.

Ms. Hodges began receiving 48 hours per week of LT-PCS in 2007. In 2008

after her annual reassessment, Ms. Hodges’ LT-PCS hours were reduced to 46 hours per

week.

78. In 2009, Ms. Hodges was offered 32 hours of LT-PCS instead of the 46 hours

per week she had been receiving. Ms. Hodges asked that her LT-PCS plan be

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reconsidered based on her needs and because, if her hours were reduced to 32 hours per week, she would be forced into a nursing home. On appeal, the Office of Aging and Adult Services agreed that the 39 hours per week of LT-PCS services were the minimum medically necessary number of hours that she needed to avoid having to enter a nursing facility for care. 79. Currently, Ms. Hodges receives LT-PCS services for seven hours per day Monday through Friday and four hours on Saturday. On Sunday, her husband returns home and provides some assistance. However, she must make sure that she has had a bath and all other difficult tasks have been completed so that he does not have to do them. 80. Ms. Hodges’ husband is able to prepare simple meals and assist her to transfer to and from her wheelchair and bed. He cannot bathe, dress and undress her, or provide her with toileting assistance. 81. Ms. Hodges is a published poet and illustrator. She has taken continuing education classes, and would like to attend classes again when her health improves, but she will need to have an adequate number of LT-PCS service hours to allow me to remain in the community. 82. Ms. Hodges does not want to live in a nursing home in order to receive the same services she presently receives in the community through Defendants’ LT-PCS program. She could not continue to live in the community with only 32 hours of LT-PCS assistance each week. Rickii Ainey 83. Plaintiff Rickii Ainey is 30 years old. She lives alone in New Orleans, Louisiana, where she has lived all of her life.
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84. Ms. Ainey has arthrogryposis, a congenital form of arthritis. She is paralyzed from the waist up and has limited mobility in her legs. She has limited range of motion in her legs and the range of motion is deteriorating. 85. Because this impairment is progressive, she has required an increasing amount of care as she has aged. 86. Ms. Ainey has received Medicaid since she was a child. Her only dependable income is Supplemental Security Income, which is $247.00 per month. 87. Ms. Ainey needs assistance with all activities of daily living, including but not limited to bathing her upper body, including her face, arms and torso, and washing her hair; dressing in the morning and undressing when she goes to bed; adjusting her clothing before and after toileting; getting on and off the toilet and cleaning herself after toileting; feminine hygiene; eating and drinking; transferring from any surface to a standing position; and moving once in bed. 88. Ms. Ainey cannot prepare meals and cannot shop without assistance. In addition, she requires assistance to do all household chores and laundry. 89. Ms. Ainey can use the phone by placing it on her bed or other flat surface and using her knuckle to dial. She then bends at the waist and put her ear to the phone using the bed or other surface for support. To stand again, she must perform a rolling motion until she shifts her body to a standing position. If Ms. Ainey falls, which happens from time to time, she cannot stand again without assistance and must wait for someone to come and help her. 90. Ms. Ainey’s mother lives nearby but refuses to assist her daughter. Ms. Ainey has a sister who lives in Arkansas and four brothers who live in New Orleans. Her
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brothers cannot provide the intimate personal care she needs, and Ms. Ainey does not believe they are responsible enough to help her on a regular basis. 91. Ms. Ainey attempted suicide in December of 2006. The primary reason for the suicide attempt was the fact that she had no personal care assistance. 92. Ms. Ainey learned about the LT-PCS program and began receiving LT-PCS services in October of 2007. At that time Ms. Ainey was awarded 37.5 hours per week of assistance. 93. In 2008, Ms. Ainey had surgery on her right knee. She was reassessed and was awarded 55 hours per week of LT-PCS services. 94. Upon her reassessment in late 2009, Ms. Ainey was told by the assessor that she would receive only 30 hours per week of LT-PCS. She immediately appealed. When she received her official notice, it turned out that she had in fact been allocated 41 hours per week of LT-PCS, which is the number of hours she is currently approved to receive. Ms. Ainey has no assistance other than the 41 hours per week provided by her LT-PCS worker. 95. A reduction of LT-PCS hours to 32 a week will not provide her with adequate assistance. Ms. Ainey does not want, at the age of thirty, to be forced to live in a nursing home. She is active in her community, and wants to continue to receive services in her own home. CLASS ACTION ALLEGATIONS 96. Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the named Plaintiffs bring this action on behalf of themselves and all other persons similarly situated.
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97. The proposed class consists of Louisiana residents with disabilities who are recipients or prospective recipients of Medicaid-funded services through the LT-PCS program; who desire to continue to reside in the community instead of in a nursing facility; who can reside in the community with appropriate Medicaid-funded LT-PCS services; and who are at risk of being forced to enter a nursing home because Defendants plan to reduce the level of community-based services. 98. The Plaintiff class is so numerous that joinder of all its members is impracticable. As of April 2010, DHH reported that there were approximately 10,878 people who were receiving Defendants’ Medicaid LT-PCS services. These people want to continue living in the community but are or will be at risk of institutionalization if they do not receive adequate Medicaid LT-PCS community-based services. Joinder is also impracticable because class members lack the knowledge and financial means to maintain individual actions. Future recipients of LT-PCS are also included in the class. 99. The questions of law or fact common to the class include:
(a) Whether Defendants violate the ADA and Section 504 statutory “integration mandate” and the “methods of administration” prohibition, by requiring named Plaintiffs and class members to enter a nursing facilities in order to receive long-term care services, rather than providing those services in appropriate settings in Plaintiffs’ homes and communities; (b) Whether DHH violates the Medicaid Act, 42 U.S.C. §1396a(a)(3), 42 C.F.R. §431.200 et seq.; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and 42 U.S.C. §1983, by allocating hours to new service recipients, or reducing services to existing recipients, based on notices that
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fail to give them a meaningful opportunity to understand, review, and, where appropriate, challenge the department's action. 100. The claims of the named Plaintiffs are typical of the claims of the class as a whole, in that the named Plaintiffs and purported class are Medicaid recipients of LTPCS services who are at risk of being forced to enter a nursing facility to receive the same services they receive in the community, and who desire to and who could live in the community with the same, appropriate LT-PCS services that they have been receiving. 101. The named Plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole. The named Plaintiffs do not have any interests antagonistic to those of other class members. By filing this action, the named Plaintiffs have displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The relief sought by the named Plaintiffs will inure to the benefit of members of the class generally. The named Plaintiffs are represented by counsel are skilled and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts and the prosecution and management of class action litigation. 102. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole under Fed. R. Civ. P. 23(b)(2). FIRST CLAIM FOR RELIEF - TITLE II OF THE AMERICANS WITH DISABILITIES ACT 103. Plaintiffs and class members are individuals with disabilities in that they have physical and other impairments that substantially limit one or more of their major life activities.
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104. Plaintiffs and the class are qualified persons with disabilities in that they are capable of safely living at home with necessary services. They meet the essential eligibility requirements for the receipt of services from and participation in the State Medicaid program, 42 U.S.C. §12131(2). 105. Without reasonable modification of the rules, policies, and procedures governing Louisiana’s Medicaid program, Plaintiffs at a risk of being isolated and segregated into an institutional setting. This is against their will, and they do not want to be placed in nursing homes. 106. Defendants’ denial of Medicaid funding for the LT-PCS services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that are appropriate to their needs, constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 35.130(d). 107. Defendants have utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community and (2) denying Plaintiffs access to Medicaid-covered services that will meet their needs in the community, in violation of Title II of the ADA and implementing regulations. SECOND CLAIM FOR RELIEF - SECTION 504 OF THE REHABILITATION ACT 108. Plaintiffs are “qualified person with disabilities” within the meaning of Section 504. They have physical and/or mental impairments that substantially limit one or more
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major life activities, and they meet the essential eligibility requirements for long term care under Louisiana’s Medicaid program. 109. Defendant DHH’s denial of Medicaid funding for the LT-PCS services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that is appropriate to their needs constitutes unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulation, 28 C.F.R. §41.51(d). 110. Defendant DHH has also utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including risk of unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community and (2) denying Plaintiffs access to Medicaid-covered services that will meet their needs in the community, thereby violating Section 504 and its implementing regulations. 111. Defendant DHH has failed to make reasonable modifications in its policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, in violation of Section 504 and its implementing regulations. DHH cannot demonstrate that making such modifications in its programs that would afford Plaintiffs the ability in their homes with adequate services and supports would fundamentally alter the nature of the service, program, or activity. THIRD CLAIM FOR RELIEF--DUE PROCESS AND MEDICAID 112. The reduction of services to Plaintiffs and similarly-situated class members based on notices that are inadequate to explain to recipients the basis of the Department’s decision, or to assist recipients in deciding whether to appeal and how to challenge the
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Department’s decision if they should decide to appeal, violates the Medicaid Act, 42 U.S.C. §1396a(a)(3), 42 C.F.R. §431.200 et seq.; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and 42 U.S.C. §1983. RELIEF REQUESTED
WHEREFORE, named Plaintiffs and the class respectfully request that the Court grant the following relief:
A. Declare that the Defendants’ denial of necessary and appropriately adequate Medicaid in-home community-based LT-PCS services for Plaintiffs constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
B. Declare that the reduction of services to Plaintiffs and similarly-situated class members based on notices that are inadequate to explain to recipients the basis of the Department’s decision, or to assist recipients in deciding whether to appeal and how to challenge the Department’s decision if they should decide to appeal, violates the Medicaid Act, 42 U.S.C. §1396a(a)(3), 42 C.F.R. §431.200 et seq.; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and 42 U.S.C. §1983.
C. Grant temporary, preliminary and permanent injunctions enjoining the Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from denying Plaintiffs’ Medicaid necessary and appropriate LT-PCS services “in the most integrated setting” so they can reside in their homes, or from reducing Plaintiffs’ LT-PCS services that they currently receive in the
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LT-PCS program which had been determined medically necessary and the minimal
amount of services the Plaintiffs required to avoid institutionalization in nursing facilities.
D. Grant temporary, preliminary and permanent injunctions enjoining the
Defendants, their officers, agents, employees, attorneys, and all persons who are in active
concert or participation with them from reducing services to Plaintiffs and similarly-
situated class members based on notices that are inadequate to explain to recipients the
basis of the Department’s decision, or to assist recipients in deciding whether to appeal
and how to challenge the Department’s decision if they should decide to appeal,
E . Waive the requirement for the posting of a bond as security for the entry
of preliminary relief.
F. Award the Plaintiff the costs of this action and reasonable attorney’s fees
pursuant to 29 U.S.C. § 794a and 42 U.S.C. § 12133 and any other applicable provision
of law.
G. All such other and further relief as the Court deems to be just and
equitable.
Dated: September 22, 2010.
Respectfully submitted,
/s/ Nell Hahn Nell Hahn LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 237-0486 nhahn@advocacyla.org
s/ Stephen F. Gold Stephen F. Gold
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PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com (Application for admission pro hac vice to be filed) Counsel for the Plaintiff
25 Case 3:10-cv-00635-JJB -SCR Document 1 09/22/10 Page 25 of 25

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

________________________

)

Helen Pitts, Kenneth Roman,

)

Denise Hodges, and Rickii Ainey, on

)

behalf of themselves and all others

)

similarly situated,

)

Plaintiffs,

)

)

v.

)

)

Bruce Greenstein, in his official

)

capacity as Secretary of the Lousiana

)

Department of Health and Hospitals, and )

Louisana Department of Health and

)

Hospitals,

)

Defendants,

)

)

________________________

)

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

I. Introduction

When reviewing a motion to dismiss, the court accepts all well-pleaded factual

allegations as true, and construes the complaint liberally, with “all reasonable inferences

drawn in the light most favorable to the plaintiff.” Elsensohn v. St. Tammany Parish

Sheriff's Office, 530 F.3d 368, 371-72 (5th Cir. 2008); Woodward v. Andrus, 419 F.3d

348, 351 (5th Cir. 2005). Motions to dismiss under Rule 12(b)(6) are disfavored and are rarely granted. Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Priester

v. Lowndes County, 354 F.3d 414, 418 (5th Cir. 2004). A claim will survive an attack

under Rule 12(b)(6) if it “may be supported by showing any set of facts consistent with

the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

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(2007). Applying this strict standard, Plaintiffs’ allegations demonstrate a valid claim for relief and the motion to dismiss must not be granted.
The Americans with Disabilities Act (“ADA”) construes unnecessary institutionalization and segregation as prohibited forms of discrimination against individuals with disabilities. 42 U.S.C. § 12101(a)(3) and (5). As such, the ADA requires public entities to administer services to qualified individuals in “the most integrated setting appropriate.” 28 C.F.R. § 35.130(d). It has been determined that the unjustified isolation of individuals in institutions, thus limiting their exposure to the community, constitutes discrimination based on disability. Olmstead v. L.C., 527 U.S. 581, 596-597 (1999).
Plaintiffs, as well as other class members, are individuals with severe disabilities who are qualified to receive, and who currently receive, services under Louisiana’s Medicaid-funded Long-Term Personal Care Services (“LT-PCS”) program. This program currently provides critical home-care services for a maximum of 42 hours per week to people who are eligible for nursing home care, and who would be at risk of having to enter a nursing home for care, if they did not receive home services. If the State cuts the maximum number of program hours to 32, as it has announced it plans to do, then Plaintiffs will not have access to the care that is necessary for them to remain in their homes. As such, Defendants’ actions place Plaintiffs at risk of unwarranted institutionalization and segregation in violation of the ADA and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a)(“Section 504”).
Since Plaintiffs’ pleadings set forth viable claims, dismissal under F. R. Civ. Pro. 12(b)6) is improper. The Memorandum in Support of Defendants’ Motion to Dismiss,
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Doc. No. 11-1 (“Defendants’ Memorandum”) presents, at pp. 4-14, a slew of factual assertions in an attempt to convince the Court that Defendants have an effectively working plan to provide community services as an alterative to nursing home care. As Plaintiffs will show, this Court may not consider these factual assertions in connection with a Rule 12(b)(6) motion.
Plaintiffs will be able to show, on the merits, that Defendants’ plans in fact do not even address the issue of allowing persons with disabilities, like the Plaintiffs and the putative class, to avoid nursing home placement by promptly providing adequate Medicaid personal care services for them in their homes and communities. Plaintiffs will be able to show, among other things, that there are over 17,000 people on a waiting list for the Elderly and Disabled Adults waiver (the “comprehensive” service that Defendants contend is more appropriate for individuals like Plaintiffs with a “higher level of need” [Defendants’ Memorandum at p. 8]), and that the 2 ½-year wait for services under that program is the same now as it was in March of 2006. Plaintiffs will further be able to show that while they, and others with disabilities who want to receive services in their homes, must wait years for adequate services, people who are willing to go into segregated institutional facilities for services can receive them immediately, and that recent budget cuts in long term care have primarily targeted home- and community-based services rather than institutional services. In sum, Plaintiffs will show that Defendants do not have an affirmative defense to their claims. However, these are matters to be addressed on the merits—not in connection with a motion to dismiss.
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II. Plaintiffs’ Factual Allegations Before the Court are four named Plaintiffs, Helen Pitts, 78, Kenneth Roman, 47,
Denise Hodges, 53, and Rickii Ainey, 30, representing themselves and a proposed class of similarly situated individuals. They all are disabled and are qualified individuals under both the ADA, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). 1
All the Plaintiffs have extremely severe impairments, with multiple chronic conditions such as paralyses, strokes, chronic heart failures, arthritis, and multiple sclerosis. They all require assistance with multiple activities of daily living (sometimes abbreviated “ADL’s”), including, but not limited to, assistance with bathing, dressing, toileting, eating, bowel and bladder care, meal preparation and clean up, shopping, and laundry. They all have been receiving such assistance for multiple activities of daily living in their homes as part of Defendants’ LT-PCS Program.
Defendants have proposed to change the maximum number of LT-PCS from 42 hours a week to 32. The reduction in maximum hours in the LT-PCS program is being imposed for purely budgetary reasons, is not based on the needs of the persons who have been receiving LT-PCS services, and does not it take into account the Supreme Court’s admonition in Olmstead v. L.C., 527 U.S.581, 597 (1999) that “[u]njustified isolation … is properly regarded as discrimination based on disability.” With the proposed reduction of hours of LT-PCS, all of the Plaintiffs are at serious and imminent risk of requiring institutionalization and segregation in nursing homes, where they will receive the exact same services that they presently receive in the community. None of the Plaintiffs want to

1

The ADA and Section 504 are analyzed together since “there is no significant difference in the

analysis of rights and obligations created by the two.” Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448,

454 (5th Cir. 2005); Zulke v. Regents of the Univ. of Calif., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999).

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reside in an institution. They have active lives in the community and want to continue to

reside in their own homes and apartments.

What distinguishes the named Plaintiffs and putative class from most other people

with disabilities is the severity of their disabilities and the concomitant assistance with

activities of daily living they require. It is critical to understand that many, if not most

,people with disabilities, could adequately reside in the community with a maximum of

32 hours a week of LT-PCS. It is only the minority of people with disabilities who have

the severest disabilities, who require more than 32 hours – to wit, the named Plaintiffs and the proposed class. 2

Defendants have in the past administered the LT-PCS to require “prior

authorization” of the number of LT-PCS hours Plaintiffs have received. That is,

Defendants have determined that the named Plaintiffs require more than 32 hours of LT-

PCS services, up to 42 hours a week. The number of hours each Plaintiff has been

receiving has been determined by Defendants to be required both to reside safely in the

community and to avoid institutionalization. Plaintiffs need for assistance with their

ADLs has not changed or diminished. Plaintiffs have not been receiving unnecessary

hours of service, but have been receiving the bare minimum number of hours up to 42 a

week each requires. For example, at the present time, Plaintiff Helen Pitts has been

approved to receive 39 hours a week of LT-PCS, Kenneth Roman 39 hours a week,

Denise Hodges 39 hours a week and Rickii Ainey 41 hours of LT-PCS a week.

The pleaded facts are:

• Plaintiff Helen Pitts is 78 years old. She is divorced and lives alone. Ms. Pitts has had osteo- and rheumatoid arthritis, fibromyalgia, and congestive heart

2

According to Defendants’ memorandum at pg. 9, 28% of the people on the LT-PCS currently

receive between 32 and 42 hours of service per week.

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failure and lymphedema. She requires the use of oxygen daily and at night. She is in constant pain in her legs, arms, shoulders and back. Plaintiff Pitts needs assistance getting in and out of bed and getting in and out of her motorized scooter. She needs help going to the bathroom because she cannot get on and off the toilet without help, needs help pulling her clothes up and down, and needs help cleaning herself (in part to avoid decubitus ulcers). She has incontinent episodes daily. She needs help bathing, dressing and performing most of her personal hygiene. Ms. Pitts is unable to prepare meals, do her laundry or attend to household chores.
• Plaintiff Kenneth Roman is 47 years old. Plaintiff Roman has had several strokes which has caused left side hemiparesis. He also has diabetes, congestive heart failure, peripheral vascular disease, hypertension, coronary artery disease, renal failure and irritable bowel syndrome, as well as several heart attacks, the most recent of which was in 2009. Mr. Roman is currently separated from his wife. One of the primary reasons they are separated is because his wife did not want to be his caregiver any longer. Due to his impairments, Plaintiff Roman needs assistance with all of his activities of daily living. He is incontinent and needs assistance cleaning after an incontinence episode. This is even more important when his irritable bowel syndrome occurs. He is often incontinent of bowel and bladder at night and often must wait until his personal care worker arrives in the morning to assist with cleaning. Plaintiff Roman needs assistance changing to a standing position from a sitting position. He needs help bathing, washing his face and brushing his teeth. Often he is not able to move in bed when he has no assistance. Not moving during the night causes him severe pain. As a result of the pain, he often falls in the morning when he tries to walk.
• Plaintiff Denise Hodges is 53 years old. She was diagnosed with transverse myelitis in 1989 that left her paralyzed from the waist down, and in 2001, was diagnosed with multiple sclerosis. Due to her multiple sclerosis, Ms. Hodges has frequent extreme fatigue and loss of stabilitiy and requires extensive assistance transferring, dressing, toileting and bathing. She cannot push her manual wheelchair and needs assistance with personal hygiene, meal preparation, shopping, laundry and household chores. Plaintiff Hodges requires digital stimulation in order to have a bowel movement and needs help with cleaning herself and any laundry that must be done as a result of bowel movements. Ms. Hodges developed decubitis ulcers on one of her heels and on her lower spine during a period of time when she was not receiving adequate assistance.
• Plaintiff Rickii Ainey is 30 years old and lives alone. Ms. Ainey has arthrogryposis (a congenital form of arthritis), is paralyzed from the waist up and has limited mobility in her legs. She has limited range of motion in her legs and the range of motion is deteriorating. Ms. Ainey needs assistance with all activities of daily living, including but not limited to bathing her upper
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body, including her face, arms and torso, and washing her hair; dressing in the morning and undressing when she goes to bed; adjusting her clothing before and after toileting; getting on and off the toilet and cleaning herself after toileting; feminine hygiene; eating and drinking; transferring from any surface to a standing position; and moving once in bed. Plaintiff Ainey cannot prepare meals and cannot shop without assistance. In addition, she requires assistance to do all household chores and laundry. None of the Plaintiffs have family or friends who can provide the Medicaid services they receive from LT-PCS. They all fervently want not to have to go into a nursing home or institution to receive the same assistance with activities of daily living that they currently receive. III. Argument A. Defendants Inappropriately Reference Materials Outside the Complaint in the Motion to Dismiss. In deciding a rule 12(b)(6) motion, a district court may not go outside the complaint, except in one “limited exception.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). This exception allows the movant to attach to its motion, and the court to consider, documents that are “referred to in the plaintiff's complaint and are central to the plaintiff's claim.” Boyd v. Driver, 579 F.3d 513, 515 n. 4 (5th Cir. 2009); Scanlan at 536. Further, a court may take judicial notice of facts of public record in deciding a rule 12(b)(6) motion only when the facts are not subject to reasonable dispute in that they are either generally known within the territorial jurisdiction of the trial court, or are capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. FED. R. EVID. 201(b). The declaration and documents that are repeatedly referenced in Defendants’ motion to dismiss do not fall within the exception, are not subject to judicial notice, and cannot be relied upon in deciding this motion. The declaration and documents are not
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mentioned or referenced at all in the complaint, an important factor in cases interpreting the exception. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (explaining that the exception in this and other jurisdictions requires that the plaintiff’s complaint have referred to the documents attached to the Defendant’s motion to dismiss and that the documents be central to the plaintiff’s claim), Scanlan, 343 F.3d at 537 (finding that the defendant’s document not being referenced in the complaint was an important distinction from cases where the exception was applied). Moreover, it would have been impossible for Plaintiffs to reference the declaration, as it was a document created by Defendants specifically for this case, a fact which precludes it from being subject to judicial notice. See Scanlan, 343 F.3d at 537 (holding that a document created by the movant for its own use cannot be characterized as “generally known” or “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”). Finally, the declaration and documents are not central to Plaintiffs’ claim, but are in fact more relevant to the Defendants’ defenses, a distinguishing factor specifically referenced by the Scanlan court. Id. (“certainly [it] alone is not central to their claims. Indeed, it is much more central to [defendant’s] defenses. Consequently, the district court’s first error was going outside the plaintiffs’ complaints.”). 3
While the declaration and documents may be relevant at a hearing on the merits, they are not relevant or appropriate in a motion to dismiss. At the hearing on the merits, Plaintiffs will have the opportunity to cross-examine Defendants’ witnesses and to introduce evidence to show inaccuracies in and irrelevance of Defendants’ documents.

3

These documents are also hearsay and /or contain hearsay statements, which have not been shown

to be within any hearsay exception. They are therefore objectionable under Rule 802, Fed.R.Evid.

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These documents are not appropriate for consideration at this time.
B. Plaintiffs’ Pleadings Allege Discrimination in Violation of the ADA and Section 504
The Supreme Court in Olmstead and lower courts have held that the ADA prohibits unnecessary segregation in institutions and requires states to provide services to individuals with disabilities in the most integrated setting appropriate to their needs, unless the state can prove that doing so would result in an undue burden or in a fundamental alteration to their programs.
Defendants fund the provision of personal care services to individuals with disabilities both in nursing homes and in the community. It is important to point out that Plaintiffs’ claims that Defendants’ actions violate the ADA and Section 504 are not per se because Defendants have reduced the maximum LT-PCS benefit from 42 to 32 hours a week. That reduction implicates ADA and Section 504 prohibited discrimination only when it puts people with disabilities at risk of being institutionalized. That is, if the reduction of hours does not cause such risk, then at least for purposes of the instant action it may not run afoul of the ADA and Section 504 Therefore, Plaintiffs’ claims are very limited: if the reduction of LT-PCS hours causes the risk of unnecessary institutionalization, then the ADA and Section 504 are violated.
Moreover, it is also important to point out that presently Defendants’ Medicaid pays for Plaintiffs’ LT-PCS in the community. When Plaintiffs are institutionalized, Defendants’ Medicaid will pay for their nursing home care. To the extent these expenditures equal or exceed the expenditures on LT-PCS, there will be no cost savings
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for Defendants but there will be unnecessary institutionalization and segregation for Plaintiffs – precisely what Congress prohibited and wanted to end. See infra.
i. Background of the ADA In enacting the Americans with Disabilities Act (ADA) in 1990, Congress made explicit findings that plainly delineated its concern that people with disabilities had been long isolated from society and its goal to promote integration of those individuals. Specifically, Congress found: that discrimination against individuals with disabilities persists in “such critical areas as institutionalization [and] health services”; that people with disabilities “continually encounter various forms of discrimination, including ... segregation”; that “the Nation’s proper goals regarding individuals with disabilities are to ensure equal opportunity, full participation, independent living, and economic selfsufficiency”; and that the continuing existence of unfair and unnecessary discrimination ... costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” 42 U.S.C. §§ 12101(a)(3), (5), (7), and (8). These findings reflect Congress’s understanding that “[i]ntegration is fundamental to the purposes of the ADA.” H.R. Rep. No. 101-485, pt. 3, at 56 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 479; see also S. Rep. No. 101-116 at 20 (1989) (there is a “compelling need to provide a clear and comprehensive national mandate .. for the integration of persons with disabilities into the economic and social mainstream of American life.”).
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ii. Title II of the ADA, as the Supreme Court Has Held, Bars Unnecessary Institutionalization and Segregation of People with Disabilities.
Title II of the ADA prohibits discrimination against people with disabilities by
public entities, such as Defendants. 42 U.S.C. § 12132. Rather than delineate the
specific forms of prohibited discrimination barred by Title II, Congress directed the
Department of Justice (DOJ) to promulgate regulations to implement Title II and, in
doing so, to adhere to specific regulations promulgated under Section 504 of the
Rehabilitation Act. 42 U.S.C. §§ 12134(a)-(b). Adhering to the congressional mandate,
DOJ adopted regulations to implement Title II including the following integration
mandate that requires public entities to:
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). 4
The integration mandate was analyzed and interpreted by the United States
Supreme Court in the landmark Olmstead decision. The Olmstead plaintiffs were
individuals with mental disabilities who were confined in Georgia’s state psychiatric
institutions, but who wanted to live in the community. Plaintiffs asserted that the state’s
refusal to pay for them to live in community settings violated the integration mandate of
4 The ADA’s integration mandate is virtually identical to 28 C.F.R. § 41.51(d) promulgated by DOJ pursuant to Section 504 of the Rehabilitation Act, which accords with Congress’s direction that the Title II ADA regulations must be consistent with the coordination regulations. 42 U.S.C. § 12134(b); see also Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir.), cert. denied, 516 U.S. 813 (1995). Plaintiffs asserted claims under the integration mandates of both the ADA and Rehabilitation Act. Since courts have held that these provisions have the same scope and effect, see, e.g., Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 601, 607 (7th Cir. 2004); Grooms v. Maram, 563 F. Supp. 2d 840, 851 (N.D. Ill. 2008), Plaintiffs’ discussion focuses on the ADA but applies as well to Section 504 of the Rehabilitation Act.
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Title II of the ADA and its implementing regulations. The Court was thus presented with
the question of whether the proscription of disability discrimination may require the
placement of individuals with disabilities in community settings rather than institutions.
Olmstead, Id. at 587.
The Court faced the question of whether a state has an obligation under the
ADA’s integration mandate, 28 C.F.R. § 35.130(d), to provide community services to
people with disabilities who were unnecessarily institutionalized. Explaining that
“unjustified institutional isolation of persons with disabilities is a form of
discrimination,” id. at 600, the Court wrote:
[C]onfinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement and cultural enrichment. [citation omitted] Dissimilar treatment exists in this key respect: In order to receive needed medical services, persons with ... disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without ... disabilities can receive the medical services they need without similar sacrifice.
Id. at 600-01. 5
The facts of the case at bar clearly demonstrate that Plaintiffs will suffer
discrimination. There can be no doubt that for Plaintiffs, the “most integrated settings
appropriate” are their own homes. By living at home and participating in their
communities, they have been able to experience and benefit from church activities, social
5 Following Olmstead, a number of federal appellate courts have applied the ADA’s integration mandate in cases involving individuals with disabilities who are unnecessarily institutionalized or at risk of unnecessary institutionalization. See, e.g., Radaszewski, 383 F.3d at 602 (7th Cir. 2004); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180-81 (10th Cir. 2003) (individuals at risk of institutionalization in nursing facilities); Townsend v. Qasim, 328 F.3d 511, 523 (9th Cir. 2003); Pennsylvania Protection and Advocacy, Inc. v. Pa. Dep’t of Public Welfare, 402 F.3d 374, 379 (3d Cir. 2005).
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contacts, educational advancement, and cultural enrichment of which the Supreme Court spoke. Forcing them to move to nursing homes solely to receive the personal attendant care services that they need for their activities of daily living is exactly the sort of discrimination recognized in Olmstead.
DOJ’s ADA integration regulation is consistent with Congress’s findings and goals in enacting the ADA. Congress’s clear goal in enacting in the ADA -- as evidenced by its extensive findings -- was to end unnecessary segregation and institutionalization of people with disabilities and, concomitantly, to promote their full integration and participation in society. Plaintiffs have clearly stated a claim for relief under the ADA and Section 504.
Defendants claim that Plaintiffs have not alleged sufficient facts to establish a violation of the ADA's integration mandate because Louisiana has a plan "oriented to prevent the isolation and segregation of individuals in institutions" (Defendants' Memorandum at 18). They argue that the fact that their expenditures on home- and community based services have grown dramatically in the past decade,6 and that they have published documents designated as “plans” dealing with long-term care, conclusively establish that Louisiana has “a comprehensive, effectively working plan to serve individuals with disabilities in their homes and communities…” (Defendants’ Memorandum, p. 2). The defense they seek to establish, however, involves more than the existence of a “plan”—it requires that the plan be “effectively working” to place qualified people in less restrictive settings, and that waiting lists “move at a reasonable pace” to
6 Defendants' offerings of home- and community based services as an alternative to nursing facility services essentially began a decade ago as a result of another ADA class action lawsuit, Barthelemy v. Louisiana Department of Health and Hospitals, C.A. No. 00-1083 in the U.S. District Court for the Eastern District of Louisiana, see 2001 WL 1254859 (approval of settlement agreement); 2003 WL 1733534 (modifying settlement agreement). The cutback at issue in this case represents a significant retreat from the services instituted as a result of that lawsuit.
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ensure that persons leave institutions. Olmstead, 527 U.S. at 605-606. Defendants’ reduction in community-based services will have the opposite effect – it will increase unnecessary institutionalization. Neither Congress nor the Supreme Court intended more unnecessary institutionalization and segregation but intended less.
Plaintiffs are aware of no reported case in which a State has been held to have established this defense at the pleadings stage. The “plans” to which Defendants allude are clearly outside the pleadings and are not relied on or referred to in any way in Plaintiffs’ Complaint. If the Court were to review them, however, it would find that they do not even address the issue of allowing persons with disabilities like the Plaintiffs and the putative class to avoid nursing home placement by promptly providing adequate Medicaid personal care services for them in their homes and communities. They contain no plans to address the problem of the lengthy, and growing, waits for community-based services, and certainly do not include the current cutbacks, which will only exacerbate those waits.
Currently, Plaintiffs are able to receive up to 42 hours of personal care services in their homes. The cutback that is the subject of this action will result in their inability to receive adequate services in their homes and will force them (and others similarly situated) into institutions. While Defendants claim that one of the named Plaintiffs will soon be offered the “more comprehensive” services that will keep her from having to enter a nursing home (Defendants’ Memorandum, p. 6), it admits that the current wait for services under that program is 2 ½ years, and does not suggest when the other named Plaintiffs, or members of the putative class, will be able to obtain these services. 7
7 Defendants state that approximately 28% of the 12,000 people receiving LT-PCS are currently receiving more than 32 hours (Defendants’ Memorandum p. 9), and that there are 4,603 EDA waiver slots (Id. at 5). Since Defendants admit that the wait for an EDA slot is over 2 ½ years (Id. at 6), it is logical to infer that most, if not all, of the 4,603 slots are currently occupied. While one of the named Plaintiffs may soon be reached on the waiting list, slots will not be available for many other named Plaintiffs and class members who are put at risk of institutionalization as a result of these cutbacks.
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Defendants do not state that they plan to add EDA slots to prevent the unnecessary institutionalization of Plaintiffs and the members of the putative class.
In a very similar recent case, the court in Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161 (N.D.Cal. 2009)(on appeal) entered a preliminary injunction against a cutback in the amount of Adult Day Health Care services that seniors and adults with disabilities were able to receive. It found that these cutbacks threatened the plaintiffs and the putative class with a serious risk of institutionalization, and that “..[T]o the extent that Defendants are claiming that alternative services satisfy their obligations under the integration mandate, Defendants certainly bear the burden of ensuring more than a “theoretical” availability of such services.” Id. at 1174. See also V.L. v. Wagner, 669 F. Supp. 1106, 1120 (N.D. Cal. 2009) (enjoining change in eligibility standards that would reduce or terminate in-home personal care services, creating a risk of institutionalization for people with disabilities, where the record demonstrated that alternative services would not be available for a large portion of class members who face a risk of institutionalization).
Here, Defendants do not even suggest that alternative services will actually be available to replace the services that Plaintiffs (other than possibly Ms. Hodges) and the other class members will lose in the cutback. The “plans” that Defendants tout certainly do not provide for this. The facts that Defendants offer some other long-term care services, and that it has documents entitled “plans” for long-term care, do not negate Plaintiffs’ claims.
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C. Defendants Have Not Established a Fundamental Alteration Defense
Given that the Plaintiffs have alleged that the community -- not a nursing home –
is the most integrated setting in which to provide them with personal care services, and
that a reasonable accommodation (i.e., the provision of up to 42 hours a week of personal
care services in the community) is feasible, they have satisfied their burden of pleading
that Defendants violated the ADA’s integration mandate. See Olmstead, 527 U.S. at 602-
03, 607; Frederick L., 364 F.3d at 492 n.4. To avoid liability under the integration
mandate, the burden at trial will shift to the Defendants to establish that the requested
accommodation of up to 42 hours a week of personal care services would constitute an
undue burden or fundamental alteration of its programs. Olmstead, 527 U.S. at 602-03,
607; Frederick L., 364 F.3d at 492 n.4; Townsend, 328 F.3d at 520. Defendants cannot meet that burden. 8
First, Defendants have not shown that it will in fact cost the State of Louisiana
more to provide the named and class Plaintiffs with personal care services in their own
homes than it would cost to fund their care in nursing homes. The State will have to pay
for nursing home care for each person who requires such care as a result of the reduced
hours in the community. At the current hourly LT-PCS rate of $12.28, it may cost the
8 “Fundamental alteration” is essentially the flip side of a “reasonable accommodation.” If something is a reasonable accommodation, it cannot be a fundamental alteration and vice versa. Courts have applied these concepts in ADA cases that did not involve the integration mandate, stressing the breadth of the ADA’s requirement for reasonable accommodation and, concomitantly, the narrowness of the fundamental alteration defense. See, e.g., American Council of the Blind v. Paulson, 525 F.3d 1256,1268-69 (D.C. Cir. 2008) (holding it is not a fundamental alteration to require the Treasury Department to use currency that is accessible to blind persons); US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (in ADA employment case, court noted that reasonable accommodation sometimes requires “preferences” to people with disabilities to achieve equal opportunity); PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001) (in holding that allowing a player to ride in a golf cart during a tournament was not a fundamental alteration, the court refused to the defer to the “expertise” of the PGA and stressed that the PGA’s refusal “to consider Martin’s personal circumstances in deciding whether to accommodate his disability runs counter to the clear language and purpose of the ADA.”)
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Medicaid program $24,903 per year to provide home services to a person who, like Helen Pitts, receives 39 hours a week of care in her home. A recent DHH report showed that the average cost of care to people receiving services in Medicaid-funded nursing homes is $33,915. Thus, a cutback in Ms. Pitts’ services from 39 to 32 hours a week would actually cost the State over $9,000 if she is forced into an institution as a result. If only 147 of the class members enter a nursing facility as a result of these cuts, the $5 million in savings the State projects from these cutbacks will evaporate.
Second, courts in other ADA integration cases have afforded relief to allow individuals with disabilities to receive community services even when the state might incur greater costs for such services than it would absent the relief. For example, the Court of Appeals for the Tenth Circuit rejected Oklahoma’s argument that its limitation on a prescription drugs for people receiving services through a Medicaid HCBS waiver in the community (while providing unlimited prescriptions to nursing home residents) was necessary because of the state’s fiscal crisis. Oklahoma’s desire to save funds, even if reasonable, “does not constitute a defense” to the ADA’s integration mandate. Fisher, 335 F.3d at 1182.
[T]he fact that Oklahoma has a fiscal problem, by itself, does not lead to an automatic conclusion that preservation of unlimited medically-necessary prescription benefits ... will result in a fundamental alteration .... 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. Id. at 1182-83 (emphasis added); accord Pennsylvania Protection and Advocacy, Inc., 402 F.3d at 381; Radaszewski, 383 F.3d at 613-15; Crabtree, 2008 WL 5330506 at *26;
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Messier, 562 F. Supp. 2d at 345; Cota v. Maxwell-Jolly, 688 F.Supp. 2d 980, 995 (N.D. Cal. 2010).
In fact, courts have held that the ADA’s integration mandate requires states to provide far more costly in-home services than those afforded to Plaintiffs in the instant case. In Radaszewski, 2008 WL 2097382 at *6, *14-*15, the court granted judgment in an ADA integration mandate case to an individual who needed in-home care at a cost of nearly $21,000 per month. In Crabtree, 2008 WL 5330506 at *2-*12, *31, the court granted a preliminary injunction to require the state to continue to provide up to 24 hours per day of skilled care to individuals who faced institutionalization in nursing homes absent such care. See also Grooms, 563 F. Supp. 2d at 847, 859-63 (granting judgment to provide in-home care at cost of more than $16,000 per month to person with disability to avoid institutionalization).
Third, this is not a case in which Defendants would have to create “new” services for Plaintiffs. Defendants currently provide personal care services both in nursing homes and in the community. As such, the provision of in-home personal care services would not fundamentally alter Defendants’ program by forcing them to develop a new service for the Plaintiffs. See Fisher, 335 F.3d at 1183 (noting that the plaintiffs were simply requesting a service that the state provided in a nursing home (unlimited prescriptions) to be provided in the community and, thus, “are not demanding a separate service or one not already offered by the state”); Radaszewski, 383 F.3d at 611 (holding that it is not a fundamental alteration to require states to simply adapt the location of where services are provided from institutions to the community).
Fourth, beginning with Southeastern Community College v. Davis, 442 U.S. 397,
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410 (1979), the courts have recognized that Section 504 requires publicly-funded programs to provide reasonable modifications and accommodations when needed to assure that people with disabilities have meaningful access to its programs and services. See Alexander, 469 U.S. at 300-01 & n.20-21. Title II of the ADA requires:
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. 28 C.F.R. § 35.130(b)(7) (authorized by 42 U.S.C. § 12134(b)). Plaintiffs agree that they have the burden to propose a reasonable accommodation, see Memorandum in Support of Defendants’ Motion to Dismiss at 21. The reasonable accommodation proposed is to continue to assess each person with a disability individually and to authorize only the number of hours, up to 42 per week, that the person requires to avoid institutionalization. Defendants’ only response is that it will cost $5 million annually to provide more than 32 hours and less than 42 hours a week of LT-PCS. See Memorandum in Support of Defendants’ Motion to Dismiss at 21. What Defendants fail to inform the Court is that their Medicaid nursing home budget in FY 2010 was $744 million dollars – nearly twice the amount expended on all their community-based programs for people with disabilities. Further, as noted above, they do not present to the Court the additional nursing home costs that will be incurred by reducing LT-PCS to a maximum of 32 hours. The concept of reasonable accommodation or reasonable modification recognizes that strictly “equal” treatment of people with disabilities will not assure meaningful access to services. See Henrietta D. v. Bloomberg, 331 F.3d 261, 273-75 (2d Cir. 2003).
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Accordingly, the ADA and Section 504 require accommodations assuring that otherwise neutral policies (e.g., limiting the number of hours to 32) and practices do not, in practice, discriminate against people with disabilities by denying them meaningful access to the covered entity’s programs and services. Id., see also US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (in ADA employment discrimination case, “preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal”).
In addition to violating “the most integrated setting” mandate, Defendants also violate Section 504 and the ADA’s prohibition against discriminating on the basis of the severity of a person’s disability. In Jackson v. Fort Stanton Hosp. & Training School, 757 F. Supp. 1243 (D.N.M. 1990), rev’d on other grounds, 964 F.2d 980 (10th Cir. 1992), plaintiffs with developmental disabilities challenged their exclusion from the state’s community services program because of the severity of their disabilities. In that case, people with severe disabilities were precluded from living in community settings because the programs lacked amenities that could be reasonably furnished that were necessary to accommodate their serious needs. The Court found that “Defendants’ failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory.” Id. at 1299. It concluded that:
modifications of the existing community service system in New Mexico would not require an excessive financial burden and that the accommodations would enable severely handicapped residents of [residential facilities] to realize the benefits of community settings. Accordingly, the defendants should require those community programs that receive federal assistance funds to make reasonable accommodations for those severely handicapped residents [of facilities] whose IDTs have determined that a community program could be appropriate, if reasonably modified.
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Id. at 1299. See also Wagner v. Fair Acres Geriatric Center, 49 F. 3d 1002, 1016 n. 15 (3d Cir. 1995) (reversing the dismissal of a Rehabilitation Act claim by a woman who had been turned down for admission to a nursing home based on the severity of her disability); Cable v. Department of Developmental Services, 973 F. Supp. 937, 942 (C. D. Cal. 1997) (State’s choice of certain patients for community placement because they were more disabled than others may constitute discrimination under the ADA); Williams v. Wasserman, 937 F. Supp. 524, 530 (D. Md. 1996) (“while the ADA does not place an affirmative obligation on the state to create or fundamentally alter a program of community-based treatment options, the ADA does oblige the defendants to make those options available to otherwise qualified individuals without regard to the severity ... of their disabilities”).
Accordingly, courts have held that it is not a fundamental alteration under the ADA’s integration mandate to require states to modify their Medicaid HCBS waivers to provide services to individuals with severe disabilities in the community. In Grooms, the court rejected a fundamental alteration defense in a case filed by an individual with complex disabilities to secure extensive in-home services and avoid institutionalization. Grooms, 563 F. Supp. 2d at 856-63.
Since Defendants have chosen to provide personal care services -- both in nursing homes and in the community via the LT-PCS and the Waiver programs -- they cannot evade their obligations under the ADA’s integration mandate to provide those services to Plaintiffs in the most integrated setting appropriate to their needs. The state’s Medicaid program is not exempt from compliance with the ADA any more than it is exempt from other civil rights laws.
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D. Plaintiffs’ Due Process and Medicaid Claims May be Premature. Defendants acknowledge that “individual notices have not been issued,” but that
when they are, sometime in the future, “each recipient whose hours will be reduced as a result of the reassessment will receive an individual notice stating the basis of the State’s action.” Memorandum in Support of Defendants’ Motion to Dismiss at 23. Plaintiffs base their Complaint on draft notices that Defendants have provided, but agree that until the notices are actually issued, this claim may be premature. E. None of Plaintiffs’ Claims are Barred by the Eleventh Amendment
It is settled law in the Fifth Circuit that a state department waives its Eleventh Amendment immunity from suit in federal court under §504 of the Rehabilitation Act of 1973 when it accepts federal funds, which are granted by Congress under authority of the Constitution's Spending Clause, and are expressly conditioned on waiver of immunity from §504. Miller v. Texas Tech Univ. Health Sciences Ctr., 421 F.3d 342, 345 (5th Cir. 2005) (en banc), and Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.2005) (en banc).
Defendants’ citation to In Re Soileau, 488 F. 3d, 302, 305 (5th Cir. 2007) for the proposition that Louisiana enjoys 11th Amendment immunity from suit is misplaced. That case concerned a bankruptcy action and whether the Bankruptcy clause of the Constitution validly abrogates states’ immunity. This case, which involves claims under the Rehabilitation Act, is controlled by Miller and Pace.
To the extent that Plaintiffs’ Complaint asserts claims against the Louisiana Department of Health and Hospitals under the ADA, these claims are not necessary for the relief Plaintiffs seek. It is well settled that Title II of the Americans with Disabilities
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Act can be enforced through suits for prospective relief against state officers pursuant to
the Ex parte Young doctrine. McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 413 (5th
Cir. 2004) (affirming denial of motion to dismiss in ADA action against state officers
alleging that they failed to adequately provide community-based living options to
individuals with mental retardation and other developmental disabilities); Bd. of Trustees.
of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n. 9 (2001). Plaintiffs’ ADA Title II
claims for prospective injunctive and declaratory relief are appropriate against Bruce
Greenstein, Secretary of the Louisiana Department of Health and Hospitals, in his official
capacity.
IV. Conclusion
For the foregoing reasons, Plaintiffs request that Defendants’ Motion to Dismiss
be denied, except as to Plaintiffs’ Due Process claims. Plaintiffs reserve the right to re-
file these claims if warranted after individualized notices have been issued.
Date: November 11, 2010.
Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 237-0486 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103
23 Case 3:10-cv-00635-JJB -SCR Document 17 11/10/10 Page 23 of 24

(215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com Counsel for the Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 11, 2010, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
24 Case 3:10-cv-00635-JJB -SCR Document 17 11/10/10 Page 24 of 24

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

________________________

*

Helen Pitts, Kenneth Roman,

*

Denise Hodges, and Rickii Ainey, on

*

behalf of themselves and all others

*

similarly situated,

*

Plaintiffs,

*

*

v.

*

*

Bruce Greenstein, in his official

*

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

Louisiana Department of Health and

*

Hospitals,

*

Defendants,

*

*

________________________

*

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Plaintiffs move this court pursuant to F.R.Civ.Pro. 23 to certify this action as a class action.
Class Definition

Plaintiffs request certification of a class defined as:
Louisiana residents with disabilities who are recipients or prospective recipients of Medicaid-funded services through the LT-PCS program; who desire to continue to reside in the community instead of in a nursing facility; who can reside in the community with appropriate Medicaid-funded LT-PCS services; and who are at risk of being forced to enter a nursing home because Defendants plan to reduce the level of community-based services.

Prerequisites to Class Certification As is set forth in Plaintiffs’ Memorandum of Law in Support of their Motion for Class Certification, they meet all the prerequisites to a class action set forth in Rule 23(a),
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Fed.R.Civ.P.: (1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class, (3) the claims or defenses of
the representative parties are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests of the class. Further,
the Defendants have acted or refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or corresponding declaratory relief with
respect to the class as a whole, and making class certification appropriate under Rule
23(b)(2), Fed.R.Civ.P. Proposed class counsel will fairly and adequately protect the
interests of the class, satisfying the requirements of Fed. R. Civ. P. 23(g).
WHEREFORE Plaintiffs request that the Court enter an order permitting this
action to be maintained as a class action on behalf of the class defined above, and that
counsel for Plaintiffs be appointed class counsel, pursuant to Rule 23(g).
Date: December 20, 2010.
Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 205-6166 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227
2 Case 3:10-cv-00635-JJB -SCR Document 30 12/20/10 Page 2 of 3

Facsimile: 215-627-3183 stevegoldada@cs.com Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424 Counsel for the Plaintiff CERTIFICATE OF SERVICE I hereby certify that on December 20, 2010, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
3 Case 3:10-cv-00635-JJB -SCR Document 30 12/20/10 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

________________________

*

Helen Pitts, Kenneth Roman,

*

Denise Hodges, and Rickii Ainey, on

*

behalf of themselves and all others

*

similarly situated,

*

Plaintiffs,

*

*

v.

*

*

Bruce Greenstein, in his official

*

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

Louisiana Department of Health and

*

Hospitals,

*

Defendants,

*

*

________________________

*

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

I. INTRODUCTION

This is an action for declaratory and injunctive relief on behalf of Louisiana

Medicaid recipients who have severe disabilities and are eligible to receive Medicaid

services in nursing facilities, but who are receiving Louisiana Medicaid-funded long-term

personal care services in their homes instead of being institutionalized in nursing

facilities. They wish to continue to receive services in their homes and communities.

Defendants, the Louisiana Department of Health and Hospitals and its Secretary, have

announced their intention to limit home-based personal care services to a maximum of 32

hours per week from the current 42 hours per week. This reduction in services will force

named and class Plaintiffs into institutions to receive personal care and assistance with

their activities of daily living, in violation of the “integration mandate” of Title II of the

Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (“ADA”) and the

1 Case 3:10-cv-00635-JJB -SCR Document 30-1 12/20/10 Page 1 of 11

Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). In this action, named and class Plaintiffs seek declaratory and injunctive relief to prevent the Louisiana Department of Health and Hospitals from reducing services to a maximum of 32 hours per week.
II. PROPOSED CLASS DEFINITION
The proposed class is defined as: Louisiana residents with disabilities who are recipients or prospective recipients of Medicaid-funded services through the LT-PCS program; who desire to continue to reside in the community instead of in a nursing facility; who can reside in the community with appropriate Medicaid-funded LT-PCS services; and who are at risk of being forced to enter a nursing home because Defendants plan to reduce the level of community-based services.
III. THE PROPOSED CLASS MEETS THE REQUIREMENTS OF FED. R. CIV. P. RULE 23(a) AND 23(b)(2)
A class should be certified if plaintiffs have satisfied the requirements of Fed. R. Civ. P. 23 (a) and any of the requirements of subsections (b) (1), (2), or (3). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997). Fed. R. Civ. P. 23(a) provides that a class should be certified if “the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Plaintiffs in this case seek class certification under Rule 23(b)(2), because Defendant has acted or failed to act on grounds generally applicable to the class, making injunctive and declaratory relief appropriate. Plaintiffs are not seeking damages. A. Numerosity
In Defendants’ Memorandum in Support of their Motion to Dismiss this case (Doc. No. 11-1), Defendants state: “Of the approximately 12,000 individuals receiving
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LT-PCS services, 28% currently receive services in excess of 32 hours per week”). See Declaration of Hugh Eley, Doc. No. 11-2, ¶37. As the Eley Declaration makes clear, all of these people have been found by the Department not only to have disabilities, but also (1) to meet medical necessity criteria that would qualify them for services in a nursing home, and (2) to be at imminent risk of having to enter a nursing facility if they do not receive personal care services. Eley Decl., ¶32.
Courts in this circuit have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement. Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1039 (5th Cir. 1981); Bywaters v. United States, 196 F.R.D. 458, 465 (E.D. Tex. 2000). The court may make common-sense assumptions in order to find support for numerosity. See Zeidman at 1039; Leszczynski v. Allianz Insurance Co., 176 F.R.D. 659, 669 (S.D. Fla. 1997) (quoting Evans v. United States Pipe & Foundry, 696 F.2d 925, 930 (11 Cir. 1993). While it is not presently known how many of the approximately 3,300 individuals who are currently receiving more than 32 hours of LTPCS per week are at risk of institutionalization if their services are reduced to the 32-hour maximum, it is reasonable to believe that the number may be in the hundreds or even thousands.
The Fifth Circuit has held that classes with 100 to 150 members generally satisfy the numerosity requirement. See, e.g., Mullen v. Treasure Chest Casino, L.L.C., 186 F.3d 620, 624 (5th Cir. 1999). James v. City of Dallas, 254 F.3d 551, 570 (5th Cir. 2001) (court certified class with at least 100 members); Jones v. Diamond, 519 F. 2d 1090 (5th Cir. 1975); Phillips v. Joint Legislative Committee, 637 F. 2d 1014, 1022 (5th Cir. 1981), cert. denied, 456 U.S. 960 (1982) (at least 33 members, plus future members, sufficient); see also Cox v. American Cast Iron Pipe Co., 784 F. 2d 1546, 1553 (11th Cir. 1986), (quoting 5 Moore's Federal Practice §23.22(1)(b) n.6 (2005) (“Eleventh Circuit has stated that ‘generally less than 21 is inadequate and more than 40 is adequate, with
3 Case 3:10-cv-00635-JJB -SCR Document 30-1 12/20/10 Page 3 of 11

numbers in between varying according to other factor.’”)). The instant case clearly meets this standard.
The practicality of joining the members of the proposed class is the primary issue raised by the numerosity requirement of Rule 23(a). Zeidman, 651 F.2d at 1038; Phillips, 637 F.2d at 1022; Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981); Murillo v. Musegades, 809 F.Supp. 487, 502 (W.D. Tex. 1992). The size of the proposed class and the inclusion of future members are separate and independent factors that make joinder patently impracticable in the instant action. See Pederson v. Louisiana State Univ., 213 F.3d 858, 869 (5th Cir. 2000); see also Zeidman, 651 F.2d at 1038. Other relevant considerations include geographic dispersion, the financial resources of class members and the ability of claimants to institute individual suits. Mullen, 186 F.3d at 624, Zeidman, 651 F.2d at 1038.
The instant case involves a very large, geographically dispersed class of people whose financial resources and ability to bring individual actions are severely reduced by their status as being severely disabled.. The members of the proposed class may number as many as 3,300. The requirement that "the class [be] so numerous that joinder of all members is impracticable," Fed. R.Civ. P. 23(a)(1), is clearly met.
B. Commonality The commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members. Mullen, 186 F.3d at 625; Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997); Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993); Washington v. CSC Credit Services, Inc., 178 F.R.D. 95, 100 (E.D. La.), modified, 180 F.R.D. 309 (E.D. La. 1998). Here, there are questions of both law and fact common to all the members of the proposed class, including:
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(a) Whether Defendants violate the ADA and Section 504 statutory “integration mandate” and the “methods of administration” prohibition, by requiring named Plaintiffs and class members to enter nursing facilities in order to receive long-term care services, rather than providing those services in appropriate settings in Plaintiffs’ homes and communities; (b) Whether DHH violates the Medicaid Act, 42 U.S.C. §1396a(a)(3), 42 C.F.R. §431.200 et seq.; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and 42 U.S.C. §1983, by allocating hours to new service recipients, or reducing services to existing recipients, based on notices that fail to give them a meaningful opportunity to understand, review, and, where appropriate, challenge the department's action. Thus, there are thus questions of law or fact common to the proposed class in this case, satisfying the requirement of Fed. R. Civ.P. 23(a)(2). Differences in the specific services needed by plaintiffs because of differing disabilities or levels of need do not defeat commonality. The essence of plaintiffs’ claims is that Defendants’ arbitrary maximum of 32 hours per week of personal care services, regardless of the needs of individuals in the plaintiff class, will result in their unnecessary segregation and isolation in nursing facilities, in violation of the rights of plaintiffs and similarly situated individuals under the ADA and Section 504 of the Rehabilitation Act. In order for class members to receive personal attendant services, which are currently being provided in the community and which could appropriately be continued to be provided to them in their homes and communities, they will be forced to enter segregated institutions to receive those services.
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It is the reduction of community-based services to 32 hours a week and the resultant unnecessary institutionalization that satisfy the commonality requirements. C. Typicality
The test for typicality in the Fifth Circuit is not demanding. See Lightbourn, 118 F.3d at 426, citing Forbush, 994 F.2d at 1106; See also Shipes v. Trinity Industries, 987 F.2d 311, 316, (5th Cir. 1993), cert. denied 114 S.Ct. 548 (1993); In re Am. Commer. Lines, LLC, 2002 U.S. Dist. LEXIS 10116, at * 33 (D. La. May 28, 2002). The typicality requirement is satisfied when the named plaintiffs advance legal and remedial theories similar to those that would be advanced by class members if they were pursuing parallel actions. Mullen, 186 F.3d at 625; Lightbourn, 118 F.3d at 426; Robidoux, 987 F.2d at 935. Class representatives need only be “part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” General Telephone Co. v. Falcon, 457 U.S. 147, 156 (1982) (quoting East Texas Motor Freight Systems, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).
Each of the four named plaintiffs in this case is a Louisiana Medicaid recipient who has been found eligible for, and has been receiving, Long-term Personal Care Services at home in excess of 32 hours per week. Each has severe disabilities and multiple chronic conditions. In the case of each named plaintiff, the Department of Health and Hospitals has previously determined that their level of medical need qualifies them for care in a nursing facility and that they are at risk of entering a nursing facility for care if they do not receive home care. And each was found by Defendants to need hours in excess of the 32-hour maximum in the past. None of them wants to leave her or his homes, friends, and families and go into a nursing home in order to receive the same Medicaid-funded services that they presently receive in the community. They are all at risk of institutionalization if their Long Term-Personal Care Services are reduced and capped as defendants propose. Therefore, as was the case with the Lightbourn class (all voting-age Texas citizens with blindness or mobility impairments), "[i]n the event that
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class members were to proceed in a parallel action, they would advance legal and remedial theories similar, if not identical, to those advanced by the named plaintiffs." Lightbourn, 118 F.3d at 426. The requirement of Fed. R. Civ. P. 23(a)(3) that "the claims or defenses of the representative parties are typical of the claims of the class" is met in this case. D. Adequacy
Adequate representation depends primarily on three factors. The named class representatives must have an interest in common with unnamed class members and must not have interests antagonistic to members of the class. Further, it must appear that the representatives will vigorously prosecute those interests through qualified counsel. See Amchem Products, Inc. v. Windsor, 521 U.S. at 614; see also East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. at 403. As the Amchem Products Court noted, "the adequacy-of-representation requirement 'tends to merge' with the commonality and typicality criteria of Rule 23(a), which 'serve as guideposts for determining whether ... maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’” Id. at 2251 n. 20, (citing General Telephone Co. of the Southwest v. Falcon, 457 U.S. at 157 n. 13 (1982)). Any differences between the named plaintiff and class members render the named plaintiff inadequate only if those differences create conflicts between the interests of the named plaintiff and those of the class. Mullen, 186 F.3d. at 625-26.
Here, there is no conflict of interest between the named plaintiffs and the other members of the class. As was shown in connection with the typicality requirement, the named plaintiffs in this case have the same claims and seek the same remedies for the
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class as a whole. Such sharing of common objectives and legal and factual issues among class members satisfies Rule 23(a)(4)'s requirement that representatives' interests be coextensive with those of the class. See id.; Bertulli v. Independent Assn. of Continental Pilots, 242 F.3d 290, 298.
The qualifications of counsel will be discussed in Section IV, infra.
E. Rule 23(b)(2) The present action is well suited for certification pursuant to Rule 23(b)(2)
because it alleges that Defendants’ policies and practices generally applicable to class members as a whole have operated to discriminate against them in violation of the federal law. The 23(b)(2) class action is "an effective weapon for an across-the-board attack against systematic abuse" and discrimination, such as that alleged by the plaintiffs here. Jones v. Diamond, 519 F.2d at 1090, 1100 (5th Cir. 1975). The term "generally applicable" in Rule 23(b)(2) requires only that the defendants’ actions affect all persons similarly situated, or that their actions apply generally to the whole class. See Johnson v. American Credit Co., 581 F.2d 526, 532 (5th Cir. 1978).
This provision has been interpreted to mean that the party opposing the class has acted either in a consistent manner toward members of the class, so that his actions may be viewed as part of a pattern of activity, or has established a regulatory scheme or set of practices common to all class members. Leszecynski, 176 F.R.D 659 at 673-74; Quigly v. Braniff Airways, Inc., 85 F.R.D. 74, 79 (N.D. Tex. 1979); Ware v. Estes, 328 F. Supp. 657 (N.D. Tex. 1971), aff'd per curiam, 458 F. 2d 1360 (5th Cir.) cert. denied, 409 U.S. 1027 (1972). Plaintiffs intend to prove that Defendants’ proposed reduction in the maximum hours of LT-PCS presents a challengeable common pattern of activity.
Cases seeking declaratory or injunctive relief are particularly appropriate for certification under Rule 23(b)(2). Curtis, 159 F.R.D. at 341; 7A C. Wright, et al., Federal Practice and Procedure §1775 (1986) ("If the Rule 23(a) prerequisites have been
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met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2).") A number of courts have recognized the propriety of class action treatment under Rule 23(b)(2) in actions brought for injunctive relief regarding physical and programmatic accessibility for people with disabilities. Lightbourn, 118 F.3d at 426; Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 197 F.R.D. 522 (S.D. Fla 2000); Neff v. VIA Metropolitan Transit Authority, 179 F.R.D. 185 (W.D. Tex. 1998); Thrope v. Ohio, 173 F.R.D. 483 (S.D. Ohio 1997); Arnold, 158 F.R.D. at 454; Civic Association of Deaf of New York City v. Guiliani, 915 F. Supp. 622 (S.D.N.Y. 1996).
Class certification not only protects class members from the burden of multiple actions, it also guarantees a hearing for individuals, such as many of the class members here, who, by reason of poverty, disability, and inability to secure counsel, may not be in a position to seek one on their own behalf. Glover v. Crestwood Lake Section 1 Holding Corp., 746 F. Supp. 301, 305 (S.D.N.Y. 1996); Adderly v. Wainwright, 58 F.R.D. 389, 405-07 (M.D.Fla. 1972); c.f. United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976). In addition, failure to certify a class could preclude notice relief informing the class of their rights and their ability to obtain the relief afforded by the suit, as authorized by Quern v. Jordan, 440 U.S. 332 (1979). See Mitchell, 701 F.2d at 34445.
IV. PROPOSED CLASS COUNSEL WILL FAIRLY AND ADEQUATELY REPRESENT THE INTERESTS OF THE CLASS
Proposed class counsel will fairly and adequately protect the interests of the class, satisfying the requirements of Fed. R. Civ. P. 23(g). Plaintiffs are represented by a team of law firms, and counsel are well qualified to handle this action and will prosecute it vigorously on behalf of the class. Lead counsel, Nell Hahn is employed by the Advocacy Center, which is the independent organization charged with protecting and advocating for the rights of persons with disabilities in the State of Louisiana, pursuant to the
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Development Disabilities Assistance and Bill of Rights Act, as amended, 42 U.S.C. §§ 15041 – 15045 (2000); the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §§ 10801 – 10807 (1986), and the Protection and Advocacy for Individual Rights Act, 29 U.S.C. § 794e(a) (2000). The Advocacy Center has been providing legal representation to individuals with disabilities in the State of Louisiana since 1979.
Nell Hahn has been practicing law for over 30 years, and has successfully handled a number of class actions (See e.g., Barthelemy v. Louisiana Department of Health and Hospitals, 2003 WL 1733534, (E.D. La., Mar 31, 2003); Chisholm v. Jindal, 1998 WL 92272 (E.D. La. Mar. 2, 1998) (class certification, Duval, J.), Chisholm v. Hood 110 F. Supp. 2d 499 (E.D. La. 2000) and 133 F.Supp.2d 894 (E.D. La. 2001) (merits); Shipes v. Trinity Industries, Inc., supra.
Co-counsel Stephen F. Gold Counsel Stephen F. Gold, is a national expert in disability-rights litigation with an extensive resume of teaching, consulting, and litigation experience. He has 40 years of experience in Medicaid and disability discrimination, including litigation throughout the country in many landmark cases in the field.
Plaintiffs are also represented by experienced attorneys with AARP Foundation Litigation, Kenneth Zeller and Bruce Vignery. Both counsel have practiced over 30 years and are experienced class action litigators.
V. CONCLUSION Plaintiffs therefore respectfully move this court to certify that this action may proceed as a class action on behalf of the following class:
Louisiana residents with disabilities who are recipients or prospective recipients of Medicaid-funded services through the LT-PCS program; who desire to continue to reside in the community instead of in a nursing facility; who can reside in the community with appropriate Medicaid-funded LT-PCS services; and who are at risk of being forced to enter a nursing home because Defendants plan to reduce the level of community-based services.
Date: December 20, 2010.
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Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 205-6166 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424
Counsel for the Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on December 20, 2010, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
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 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

________________________

*

Helen Pitts, Kenneth Roman,

*

Denise Hodges, and Rickii Ainey, on

*

behalf of themselves and all others

*

similarly situated,

*

Plaintiffs,

*

*

v.

*

*

Bruce Greenstein, in his official

*

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

Louisiana Department of Health and

*

Hospitals,

*

Defendants,

*

*

________________________

*

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

ORDER

On the

day of

, 2010, came on for hearing

Plaintiffs’ Motion for Class Certification in the above-named and numbered cause. It

appears to the Court that the requirements of F.R.Civ.Pro. 23 are met in this action, and that

it is appropriate for this action to be maintained as a class action. It is therefore

ORDERED that this action may be maintained as a class action under F.R.Civ.Pro.

23(b)(2), on behalf of the class described as follows:

Louisiana residents with disabilities who are recipients or prospective recipients of Medicaid-funded services through the LT-PCS program; who desire to continue to reside in the community instead of in a nursing facility; who can reside in the community with appropriate Medicaid-funded LT-PCS services; and who are at risk of being forced to enter a nursing home because Defendants plan to reduce the level of community-based services.

Case 3:10-cv-00635-JJB -SCR Document 30-2 12/20/10 Page 1 of 2

It is further ordered that Nell Hahn, Stephen F. Gold, Kenneth Zeller, and Bruce Vignery shall serve as class counsel.

SIGNED in Baton Rouge, Louisiana, this , 201 .

day of

UNITED STATES DISTRICT JUDGE

Case 3:10-cv-00635-JJB -SCR Document 30-2 12/20/10 Page 2 of 2

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

HELEN PITTS, KENNETH ROMAN,

) Civil Action No. 3:10-cv-00635-JJB-SCR

DENISE HODGES, and RICKII AINEY, on )

behalf of themselves and all others similarly )

situated,

)

Plaintiffs

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION On December 20, 2010, Plaintiffs moved to certify a class of:

Louisiana residents with disabi lities who are recipients or prospective recipients of Medi caid-funded services through the LT-PCS program; who desire to continue to reside in the community instead of in a nursing facility; who can re side in the community with appropriate Me dicaid-funded LT-PCS services; and who are at risk of being forced to enter a nursing hom e because Defendants p lan to redu ce the lev el of community-based services.
On behalf of the mselves and the proposed cla ss, the nam ed plaintiffs seek declaratory and

injunctive relief to prevent Defendants, the L ouisiana Department of Health and Hospitals

(“DHH”) and Secretary Bruce Greenstein, from ca pping at 32 the nu mber of hours of long-term

personal care services (“LT-PCS”) they may receive weekly.

For the reasons discussed below, the Court should deny cer tification as to

Plaintiffs’ ADA and Re habilitation Act claims and dism iss their re maining claims for lack of

Case 3:10-cv-00635-JJB -SCR Document 32 01/10/11 Page 1 of 14

jurisdiction. In any event, the proposed class definition sweeps far beyond the scope of plaintiffs’ claims; even if the Court believ es that certification is appropriate, the proposed class should be redefined to make clear that it is lim ited to LT-PCS recipients who need more than 32 hours, and less than 42 hours, of state-funded personal care services each week. I. Class Certification Should Be Denied.
Before certifying a class acti on, the Court m ust find tha t: “(1) the class is so numerous that joinder of all m embers is im practicable, (2) there are questions of law o r fact common to the class, (3 ) the claims or defenses of the rep resentative parties are typical of the claims or defenses of the class ; and (4) the representative parties will fairly and adequately protect the interests of the clas s.” F ED. R. CIV. P. 23(a). Because Plain tiffs seek certification under Rule 23(b)(2), the Court m ust also find that Defendants have “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2).
Defendants oppose certification of the pr oposed class on the grounds that the named plaintiffs’ claim s are atypical of those of absent class m embers and that conflicts of interest within the class preclude a finding that the named plaintiffs will adequately protect the interests of the class.1
1 In the interests of judicial ec onomy, Defendants ask the Court to exercise its discretion to defer ruling on the motion for class certification until after it decides the pending motion for summary judgment. See Floyd v. Bowen, 833 F.2d 529, 534-35 (5th Cir. 1987); see also FED. R. CIV. P. 23(c)(1) advisory comm ittee’s note (2003); A LBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 7:15, at 53 (4th ed. 2002); FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION § 21.133, at 253 (2004) (“[C]ourts should rule ear ly on m otions to dism iss, challenging whether the plainti ffs have stated a cause of ac tion. Early resolution of these questions may avoid expense for the parties and burdens for the court . . . .” (emphasis added)).
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A. The named plaintiffs’ claims are atypical of those of other class members. Rule 23(a)(3) requires Plaintiffs to demonstrate that “the claims or defenses of the
representative parties are typica l of the claim s or defe nses of the clas s.” T he typicality requirement is no t satisfied here because, if the nam ed plaintiffs’ claims survive summ ary judgment, Defendants anticipate raising various defens es to their claims that are not available as to other members of the proposed class. See, e.g., Warren v. Reserve F und, Inc., 728 F.2d 741, 747 (5th Cir. 1984); Garonzik v. Shearson Hayden Stone, Inc. , 574 F.2d 1220, 1221 (5th Cir. 1978). But cf. Feder v. Elec. Data Sys. Corp. , 429 F.3d 125, 136-39 & n.7 (5th Cir. 2005) (finding no abuse of discretion wh ere the nam ed plaintiff was “a rguably,” but not necessarily, subject to unique defenses).
One named plaintiff’s claim presents the question of whether a Medicaid recipient can state a claim under Olmstead after declining placement in a waiver program that would have provided the services s ought in the lawsuit. DHH records indicate that one of the nam ed plaintiffs, Rickii Ainey, was offered a slot in the Elderly and Disabled Adult (“E DA”) waiver program in approximately 2004 but refused EDA se rvices. Had Ms. Ainey accepted that offer, her personal care services would not be subject to the 32-hour cap she now challenges.2
A plaintiff in Ms. Ainey’s circ umstances cannot prevail on an Olmstead claim. First, a State should not be subject to claim s of discriminatory and “u njustified placement or retention of persons in institutions,” Olmstead v. L.C. , 527 U.S. 581, 596 (1999), by an
2 Additionally, the Complain t states that Ms. Ainey’s mother “lives nearby” but does not contribute to her personal care (Doc. 1, ¶90) . Although the Com plaint alleges Ms. Ainey’s mother “refuses to assist her daughter,” id., the Complaint does not alle ge that he r mother is incapable of providing the nine hours of car e between the new 32-hou r maximum and the 41 hours that Ms. Ainey has been receiv ing, or that she will continue to refuse if her assistance is needed to keep her daughter from entering a nursing home.
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individual who enters a nursing facility after having declined adequate Home and Community Based (“HCBS”) services. Second, even if relief under Olmstead were sometimes available to such an individual, where other persons rem ain on the waiting list f or such services, “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 pop ulation of persons with mental disabilities.” Id. at 604. Third, when the plaintiff is so situated, a federal court should be reluctant to exercise its equitable discretion to restructure and im pose substantial financial burdens on a state program . Cf. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (“The grant of jurisdiction to ensure compliance with a statute hardly suggest s an absolute duty to do so under any and all circumstances, and a federal judge sitting as chan cellor is not mechanically obligated to grant an injunction for every violation of law.”). Alth ough Defendants do not know what portion of the proposed class would b e subject to each of th ese defenses, each argu ment presents a uniqu e defense applicable to Ms. Ainey but not to the cl ass as a whole. As a result, the typicality requirement of Rule 23(a)(3) is not satisfied.
The claims of another nam ed plaintiff, Helen Pitts, face a different b ut related problem. While Ms. Ainey has previously turned down a slot in the EDA waiver program, DHH records indicate that Ms. Pitts never sought an EDA waiver slot prior to the filing of this lawsuit. Although Defendants anticipate challe nging Ms. Pitts’ claim s with defenses sim ilar to those outlined above with re spect Ms. Ainey, the def enses applicable to Ms. Pitts r est on dif ferent grounds. Put simply, when an Olmstead plaintiff’s temporary institutional placement results in part from her failure to have pursued available services s ooner, that placem ent is not “unjustified”; granting her relief would be inequitable in light of the State’s obligations to others; and the court should not exercise its discretion to grant declaratory or injunctive relief. Ms. Pitts’
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claims are therefore aty pical of tho se of ab sent class m embers who have pursued adequate alternative services and, under Plaintiffs’ understanding of the ADA, presumably have a stronger claim for relief.
A third named plaintiff, Denise Hodges, is also subject to a defense not equally applicable to the r est of the propo sed class. As discussed below, infra at 6-7, rule chang es associated with those c hallenged in this lawsu it have dramatic ally reduced the tim e that some members of the proposed class would have waited for a slot in the EDA waiver. See Defendants’ Exh. 1, Declaration of Hugh R. Eley, at ¶¶18-21 [h ereinafter Eley Decl.]. Denise Hodges is among that group. On January 10, 2011, Defendants offered slots in the EDA waiver to 158 individuals. Ms. Hodges is the re cipient of one of these offers. As a result, Ms. Hodges’ claim s are moot. Additionally, because the 32-hour cap was unlikely ever to be applied to Ms. Hodges, she may have lacked standing to sue in the first instance. 3 The sam e defenses are not equally applicable to most absent members of the proposed class, making Ms. Hodges’ claims atypical.
Defendants have not been able to iden tify -- based on the Complaint and the ir own records -- a defense uniquely applicable to the fourth nam ed plaintiff, Kenneth Rom an. Nevertheless, the diverse circumstances of the four named plaintiffs alone suggests even greater diversity among the proposed class as a whole and raises serious doubts that any named plaintiff could adequately represent the enti re class. In any event, wit hout further factual developm ent, Defendants are not prepared to concede that Mr. Roman’s claims are typical of those of the class.
For the foregoing reasons, the claim s of three of the four nam ed plaintiffs are atypical of those of the absent class m embers. The diverse circumstances of the class m embers
3 Ms. Hodges also now lacks any in centive to vigorously pursue cla ss-wide relief, so she is not an adequate class representative under Rule 23(a)(4).
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suggest the fourth named plainti ff is likewise an inadequate re presentative of the class as a whole. Regardless, no class shou ld be certified without further factual development as to Mr. Roman’s adequacy as a class representative.
B. Plaintiffs cannot fairly and adequately protect the interests o f the putative class. Conflicts of interest between named plaintiffs and members of the proposed class
preclude a finding that the named plaintiffs will “fairly and adequately protect the interests of the class,” Fed. R. Civ. P. 23(a)(4). The adequacy inquiry “serves to uncover conflicts of interest between the nam ed plaintiffs and the class they seek to represen t,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997), and “‘[i]t is axiom atic that a putative re presentative cannot adequately protect the class if his interests are antagonistic to or in conflict with the objectives of those he purports to represent.’” Payne v. Travenol Labs., Inc. , 673 F.2d 798, 810 (5th Cir . 1982) (quoting 7 C HARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1768, at 638 (1st ed. 1972)). Certificat ion of Plaintiffs’ proposed class would violate “the cardinal principle that a class repr esentative may not head a class including persons whose interests substantially conflict with his or her own.” Id.
It is im portant to understand that the 32-hour services cap for LT-PCS services was only one of several related adjustments made to the State’s com prehensive HCBS program. In light of the new cap, Defendant s revised the priority groups fo r the EDA Request for Services Registry so that current reci pients of LT-PCS no longer fall into a low-priority group. See Eley Decl., at ¶¶18-21. As a result of this package of reforms, some of the proposed class m embers will receive offers for the m ore comprehensive services offered through the EDA waiver sooner than they w ould have absent th e reforms. Indeed, a num ber will be offered EDA slots before their next annual assessm ent and never be s ubject to the lim it on LT-PCS services. (As
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discussed above, Denise Hodges has already benefited from the new rules. ) Because m any putative class members will only benef it from the reforms challenged by the nam ed plaintiffs, there is a clear conflict of interests within the proposed class.
The interests of the proposed class ar e fundamentally conflicted for another reason as well. Person al care s ervices are an optional benefit. The Medicaid Act does not require States to provide them . See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(viii)(24). Both the size and cost of this optional service have considerably exceeded the State’s expectations when it created the LT-PCS program . See generally Eley Decl., at ¶¶31-43. The program now serves nearly three times the number of recipients as it did only five years ago, but it costs nearly five times as m uch. See id. at ¶34. Because th e costs of th e LT-PCS program have been soaring while state revenue con tinues to de cline, the program has drawn the attention of the state legislature, which has di rected DHH to develop cost-control m echanisms. See Declaration of Emergency, 36 La. Reg. 1749, 1749 (Aug. 20, 2010) (c iting Senate Resolution 180 and House Resolution 190 of the 2008 Regular Session).
If Defendants are unable to im plement the 32-hour services cap and other costcontrol measures, they will be faced with the difficult decision of whether to eliminate the LTPCS program entirely. See Defendants’ Motion to Dism iss at 13-14. The State’ s choice will be between placing reasonable limits on the amount of LT-PCS service available to each recipient -an approach that allows the State to serve an ever-growing populatio n of individuals with disabilities -- and am ending the state Medicaid plan to eliminate the LT-PCS program -- an approach that may allow the State to provide a greater amount of services to a smaller number of recipients. Although the State fortunately is not immediately faced with this dilemma, the choice has bearing on the sustainability of the proposed class action.
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The Supreme Court addressed a comparable problem in Amchem Products, Inc. v. Windsor, a case invo lving certification of a class of individuals who had been, or m ay in the future be, adversely affected by exposure to asbestos. See 521 U.S. at 597. The Court held that class certification was improper because of the di sparity of interests between the plaintiffs who were currently injured and those who m ight suffer future injury as a result of their exposure, as well as th e diversity within each category. See id. at 626-27. The Court explained: “Most saliently, for the currently injured, the critical goal is generous immediate paym ents. That goal tugs against the interests of e xposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future.” Id. at 626.
A similar conflict of interests permeates the proposed class in this case. Here, the question is whether class m embers favor a fis cally sustainable LT-P CS program that offers recipients up to 32 hours of services every week , or a LT-PCS program with a higher m aximum and a greater probability that the program will be discontinued.
Differently situated members of the putative class ar e likely to an swer this question differently. At least three categories of putativ e class members are likely to favor sustainability over immediate relief: (1) those who currently receive fewer than 32 hours of LTPCS; (2) those who currently receive greater than 32 hours of LT-PCS but who could continue to live in their current residence with 32 hours of LT-PCS and either a better allocation of their LTPCS services or supp lemental assistance from family, friends, or other supports; and (3) “prospective recipients” of LT-PCS regardle ss of their current circu mstances. Putative class members who fall into none of these catego ries may well favor immediate relief over a sustainable program, but that is not necessarily so.
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For these reasons -- that some class members benefit from the challenged policies
and that class members have d ivergent interests in the lon g-term sustainability of the LT-PCS program -- the named plaintiffs cannot adequately represent the interests of the class as a whole.4
II. In Any Event, The Proposed Class Definition Is Overly Broad.
Although Plaintiffs’ complaint alleges th at it is brought on be half of “nearly
11,000 low-income people with severe disabilities” (Doc. 1, at ¶1) who have been receiving LT-
PCS,” the n amed plaintiffs each fall within th e minority of LT-PCS recipien ts who have been
receiving in excess of 32 hours of services per week. Plaintiff’s Memorandum in Opposition to
the Motion to Dismiss also acknowledges that “many, if not most, people with disabilities, could
adequately reside in the comm unity with a m aximum of 32 hours a week of LT-PCS” and that
“[i]t is only the m inority of people with disabilities . . . who require m ore than 32 hours” (Doc.
17, at 5). The Mem orandum also a sserts that Plaintiffs’ claim s “are very lim ited” in that the
reduction from 42 to 32 hours “im plicates ADA and Section 504 . . . only when it p uts people
with disabilities at r isk of being institu tionalized.” Id. at 9. Si milarly, Plaintiffs’ production
requests have defined the “people in the proposed class” as “those people who receive more than
4 Plaintiffs’ motion suggests that Defendants’ concession that Plaintiffs can satisfy Rule 23(a)(2) necessitates the conclusion that they can also satisfy the typicality and adequacy criteria of Rules 23(a)(3) and (4). See Memorandum in Support of Class Certifi cation at 7-8. This is incorrect, and the Supreme Court has said as much. See General Telephone Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982) (explaining that the typicality and commonality criteria “tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the com petency of class counsel and conflic ts of interest.”). “T here is considerable overlap among the Rule 23(a) pr erequisites, though each serves discrete purposes and has discrete tests.” N EWBERG ON CLASS ACTIONS § 3.22. Plaintiffs conflate the requirem ents of Rule 23(a)(2), (3), and (4) entire ly; they flatly assert the absence of conflicts of interest within the class, but their assertion is conclusory, unsupported by factual allegations or record evidence, and based on a faulty understanding of what Rule 23 demands.
- 9 Case 3:10-cv-00635-JJB -SCR Document 32 01/10/11 Page 9 of 14

32 hours of LT-PCS before the reduction to 32 hours is im plemented for them.” (Request Number 62 in Plaintiffs’ First Set of Requests for Production of Documents).
Despite these assertions that their claims are limited and that only a m inority of individuals are affected by the challenged acti ons, the proposed class definition broadly (and vaguely) refers only to those “who can reside in the community with appropria te Medicaidfunded LT-PCS services.” It is not limited to those who have be en receiving in excess of 32 hours; nor is it clear that it is limited to those whose needs can be met within the current 42 hour cap. Nor does it refer to the availability (or lack thereof) of family or other community support, or state services such as A dult Day Health Care (“ADHC”) available to supplem ent their LTPCS services. All of these limitations are necessary if a class is to be certified.
First, as Defendants’ rules m ake clear, an individual who can es tablish that he or she needs additional LT-PCS hours in order to avoi d entering a nursing home can request and/or appeal for additional hours, up to the 32 hours m aximum. See La. Adm in. Code tit. 50, § 12901(D); 36 La. Reg. 1749, 1749 (Aug. 20, 2010). Theref ore, there is no basis for the clas s definition to include individuals who do not claim that they need in excess of 32 hours, as there is already a process for requesting additional hours, up to the maximum.
Second, if a class is to be certified, th e definition m ust make clear that th e Plaintiffs are challengin g only the most recen t reduction from a m aximum of 42 hours to 32 hours, and that the class does no t include individuals whose need s can only be m et with more than 42 hours of care.
Third, the definition should m ake clear that state-funded services are intended to supplement, not supplant, the natural supports th at individuals with di sabilities can and do receive from their families and communities. Therefore, the class should not include individuals
- 10 Case 3:10-cv-00635-JJB -SCR Document 32 01/10/11 Page 10 of 14

who have available natural supports or who can make arrangements, for example, to share living quarters, that may reduce the need for state-funded services.
Fourth, the definition should clearly exclude individuals who could rem ain in the community by supplementing their LT-PCS services with services offered through other state programs such as the ADHC waiver. See Eley Decl., at ¶26.
In light of the above, Defendants propose that, if a class is to be certified, the class definition be as follows:
Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-P CS program; who desire to reside in the community instead of a nursing facility; who require more than 32 and less than 42 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility, and who do not ha ve available (including through family supports, shared living arrangem ents, or enrollm ent in the ADHC waiver) other means of receiving personal care services. III. Further Development Of The Record Is N ecessary Before The Court Can Rule On Plaintiffs’ Motion For Class Certification. “The plain text of Rule 23 requires the court to ‘find,’ not m erely assume, the facts favoring cla ss certification,” Unger v. Amedisys In c., 401 F.3d 216, 321 (5th Cir. 2005), and “the p arty seeking certificat ion bears the burden of proving a ll elements of rule 23 (a),” Berger v. Compaq Computer Corp. , 257 F.3d 475, 482 (5th Cir. 2001). Plaintiffs have not yet established an evidentiary record sufficient to support their class allegati ons. Once Plaintiffs make the necessary prima facie showing, Defendants may submit affidavits to counter Plaintiffs’ evidence and may seek class discovery. Should m aterial facts remain in dispute, a hearing m ay be warranted. Cf. Bradford v. Sears, Roebuck & Co. , 673 F.2d 792 (5th Ci r. 1982). In any event, certification on the pleadings alone would be premature.
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IV. The Court Should Dismiss All Claims Rehabilitation Act.

Not Arising Under The ADA or

Plaintiffs’ motion for class certification b arely gestures at their Third Claim for

Relief, which they have all but abandoned (Doc. 30, at 5). Plainti ffs have previously conceded

that all of their claim s not founded on the ADA or the Rehabilita tion Act “may be premature.”

Plaintiffs’ Memorandum in Opposition to the Moti on to Dism iss at 22. This is in effect an

acknowledgement that the claim s are unripe and th at the Court lacks jurisdiction to hear them.

See Roark & Hardee LP v. City of Austin , 522 F.3d 533, 544 n.12 (5th Cir. 2008). Because

introduction of matters outside the pleadings is no bar to dism issal under Rule 12(b)(1), see

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981), the Court should dismiss the Third

Claim for Relief now without awaiting further proceedings on Defendants’ motion for summary

judgment or Plaintiffs’ motion for class certification.

V. Conclusion

For the foregoing reasons, class certification should be denied. In any event, the

proposed class is overly broad and any clas s certified should be lim ited to those LT-PCS

recipients requiring between 32 an d 42 hours of service p er week. Additionally, the Court

should dismiss as unripe Plaintiffs’ Third Claim for Relief.

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Dated: January 10, 2011

Respectfully submitted,
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232
Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291 Counsel for Defendants

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CERTIFICATE OF SERVICE I certify on this 10th day of January, 2011, that a true and correct copy of the foregoing Defendants’ Memorandum in Opposi tion to Class Certification was filed electronically using the CM/ECF system . Notice of this filing will be s ent via operation of the Court’s electronic filing system to the following: Nell Hahn nhahn@advocacyla.org Stephen F. Gold stevegoldada@cs.com Bruce Vignery bvignery@aarp.org Kenneth Zeller kzeller@aarp.org Counsel for Plaintiffs
/s/ Matthew Berns Matthew Berns
- 14 Case 3:10-cv-00635-JJB -SCR Document 32 01/10/11 Page 14 of 14

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al. PLAINTIFFS
V. BRUCE GREENSTEIN, et al.

*

C.A. No. 3:10-cv-00635-JJB-SCR

*

*

*

JUDGE JAMES J. BRADY

*

*

*

MAGISTRATE JUDGE STEPHEN

*

C. RIEDLINGER

*

*

CLASS ACTION

PLAINTIFFS’ REPLY TO DEFENDANTS’ MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION

Plaintiffs submit herewith Exhibits 1-4, the declarations of the named Plaintiffs, Rickii

Ainey, Helen Pitts, Kenneth Roman, and Denise Hodges; Exhibit 5, the declaration of putative

class member Cleo Lancaster; Exhibit 6, the declaration of Carol Congress, Rickii Ainey’s

mother; Exhibit 7, the declaration of Jeanne Abadie; and Exhibits 8-11, the declarations of

counsel, Nell Hahn, Stephen F. Gold, Bruce Vignery, and Kenneth Zeller. These declarations

establish that the requirements of Rule 23 are met. This Court should therefore enter an order providing that this case may proceed as a class action under Rule 23(b)(2).1

1. Plaintiffs’ claims are not atypical.

Defendants’ argument that the claims of the named plaintiffs are not typical because

defendants may have unique defenses against some plaintiffs (Defendants’ Memorandum in

Opposition to Class Certification, hereafter “Defendants’ Memorandum,” at 3-5) is unavailing.

The Fifth Circuit has specifically held that the presence of an arguable unique defense does not necessarily destroy typicality. Feder v. Elec. Data Sys. Corp., 429 F. 3d 125, 137 (5th Cir. 2005);

see also In re Enron Corp. Securities, 529 F.Supp.2d 644, 674 (S.D. Tex. 2004). Instead, the

1 Class certification is necessary to allow plaintiffs to seek class preliminary injunctive relief. To date, one of the named plaintiffs, Rickii Ainey, and one identified class member, Cleo Lancaster, have been faced with imminent cuts in their services to levels that would not permit them to continue to live in the community. Defendants have stipulated that the cuts will be suspended in these two cases, while this action proceeds.

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critical inquiry is whether the “class representative’s claims have the same essential characteristics as those of the putative class.” James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001). If the claims arise from a “similar course of conduct and share the same legal theory, factual differences will not defeat typicality.” Id.; Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999), cert. denied, 528 U.S. 1159 (2000); Musmeci v. Schwegmann Giant Super Markets, CIV.A. 97-2757, 2000 WL 1010254 (E.D. La. July 20, 2000) amended, CIV. A. 97-2757, 2000 WL 1185510 (E.D. La. Aug. 18, 2000); Chisholm v. Jindal, CIV. A. 97-3274, 1998 WL 92272 (E.D. La. Mar. 2, 1998).
This case is not like Warren v. Reserve Fund, Inc., 728 F.2d 741 (5th Cir. 1984), (cited in Defendants’ Memorandum at p. 3) in which characteristics peculiar to the named plaintiffs make them atypical or weak representatives of the class. Warren dealt with class claims that a mutual fund company misled potential investors in prerecorded telephone message. The proposed class representative was a bank president with considerable financial sophistication, making him atypical of the class of persons who might be misled by the mutual fund’s message.
Each of the named plaintiffs in this case, Rickii Ainey, Helen Pitts, Denise Hodges, and Kenneth Roman, is an individual with severe disabilities who will be placed at risk of having to go into a nursing home for care, if the number of hours of Long Term Personal Care Service (“LT-PCS”) that he or she will be eligible to receive is reduced to an absolute maximum of 32 hours a week. Each raises the same legal claim under the ADA and the Rehabilitation Act. See Exhibits 1-4, Declarations of Rickii Ainey, Helen Pitts, Kenneth Roman, and Denise Hodges.
Like most recipients of LT-PCS services, the named plaintiffs are all on a multi-year waiting list for a more comprehensive set of services called the Elderly and Disabled Adult Waiver, which is limited by the State to a certain number of “slots.” They seek to represent other individuals who are similarly threatened with institutionalization as a result of Defendants’ proposed cuts in the level of LT-PCS while they wait for waiver services. Plaintiffs and putative class members possess the same legal claim and injury – that their unnecessary
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institutionalization violates the Americans with Disabilities Act and the Rehabilitation Act. The claims of these four individuals have the same essential characteristics as those of the putative class members, arise from the same course of conduct (Defendants’ reduction of the maximum amount of LT-PCS to 32 hours a week) and share the same legal theory (the claim that reducing LT-PCS to a level that would make it impossible for them to safely remain in their homes, which violates the “integration mandate” of the Americans with Disabilities Act and the Rehabilitation Act).
Plaintiffs are requesting a reasonable accommodation under which their LT-PCS hours will not be reduced if they can demonstrate that they would otherwise have to enter a nursing home to obtain this care. Defendants’ recently promulgated system does not allow them to make such a demonstration. It provides that no LT-PCS recipient may receive more than 32 hours a week—no matter how acute their need for the additional hours of service, how long it may take them to access other services that can meet this need, and how acute is their risk of institutionalization if adequate home-based services are not available.
This case will not focus on the individual circumstances or defenses to individual claims, because the named plaintiffs are not seeking to have the Court review the individual situations of each class member. What the plaintiffs are seeking, as a reasonable accommodation, is for the State to create a mechanism whereby it will consider class members’ needs for additional services, over and above 32 hours a week, to avoid institutionalization, and provide those services if they are necessary to allow them and other class members to remain in the community.
The arguable presence of either individual differences, or what defendants label as “unique defenses,” should not defeat class certification here.
Defendants do not even attempt to identify individual circumstances or “unique defenses” that would defeat named Plaintiff Kenneth Roman’s ability to serve as a class representative based on typicality.
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Moreover, with regards to the other named Plaintiffs, the differences in their circumstances or “defenses” that Defendants attempt to articulate in their memorandum are inadequate. First, they argue that Plaintiff Rickii Ainey’s claim “presents the question of whether a Medicaid recipient can state a claim under Olmstead after declining placement in a waiver program that would have provided the services sought in the lawsuit.” Defendants state that Ms. Ainey allegedly declined a slot on the Elderly and Disabled Adults Waiver in 2004, and that this presents a defense to her Olmstead claims.
Plaintiffs submit that events that occurred six or seven years ago to Ms. Ainey are irrelevant to her claim that Defendants’ policies are currently placing her at risk of having to enter a nursing home for care in 2011 that could as easily (and more cheaply) be provided to her in the community. As her declaration establishes, her circumstances have significantly changed since 2004, when Defendants contend that she was offered an EDA waiver slot. In 2004, she was living with her boyfriend who assisted with her personal care needs. This relationship ended in 2006, leaving her without natural supports. Exhibit 1, ¶¶18-20. Currently, she has to rely on LTPCS for assistance with all activities of daily living, including bathing, washing her face and hair, dressing and undressing, toileting, feminine hygiene, eating and drinking, transferring from any surface to a standing position, moving once in bed, preparing meals, shopping, household chores and laundry.2 Exhibit 1, ¶¶2-9,
Next, Defendants contend that another named plaintiff, Helen Pitts, never sought an EDA waiver slot prior to the filing of this lawsuit. They claim that this is a “defense” to her Olmstead claim because she had alternatives to institutionalization that she has not pursued.
The facts are otherwise. Ms. Pitts has been seeking an EDA waiver slot since at least 2007. One of Defendant’s attorneys, Michael Coleman, emailed Plaintiff’s counsel on December
2 Her mother, though she lives near Ms. Ainey, is not a source of support. She has not helped Ms. Ainey since she was a child. She has been addicted to drugs for many years, has a criminal record, and refuses to assist. Exhibit 1, Declaration of Rickii Ainey, ¶¶8, 10-14; Exhibit 5, Declaration of Carol Congress.
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30, 2010, in response to an inquiry, and stated that Ms. Pitts has been on the waiting list for an EDA waiver slot since September 5, 2007. Exhibit 8, Declaration of Nell Hahn ¶¶ 2-4, Attachments A-C.
Defendants next claim that Denise Hodges’ claims are subject to the “unique defense” that she has been offered a slot on the EDA waiver, enabling her to obtain additional hours, and thus mooting her Olmstead claim to additional LT-PCS hours. Ms. Hodges’ circumstances are in fact typical because she, like most LT-PCS recipients, has applied and is waiting for a slot on the EDA waiver. The only reason that class members are not receiving EDA waiver services is that Defendants have not requested sufficient slots from CMS to accommodate all those who need and qualify for those services. Ms. Hodges has been waiting for an EDA waiver slot since September 11, 2007. Exhibit 8, ¶¶ 3-4, Attachment C.
Defendants have not coordinated their programs so that LT-PCS cuts will not take effect for people who have been offered EDA services until those EDA services begin. In connection with Ms. Hodges’ status as a class representative, it is crucial to note that it often takes several months for persons who have received an offer for an EDA slot to actually receive services. Exhibit 7, Declaration of Jeanne Abadie, ¶¶3-5. As of January 24, 2011, Ms. Hodges did not have a date for her assessment for the EDA waiver. Id. ¶6.
Plaintiffs concede that, when Ms. Hodges actually receives the additional services that the EDA waiver can afford, her interest in this action will end. If this takes place before the district court certifies the class, her interest in this action would be moot, and she would not be an appropriate class representative. See Weinstein v. Bradford, 423 U.S. 147 (1975). But Defendants do not contend that Ms. Hodges is actually been provided with services under the EDA waiver, or that these services will actually be in place before her LT-PCS cuts will take effect. She thus currently continues to possess a live stake in the substantive outcome of the case, see Rocky v. King, 900 F.2d 864, 867 (5th Cir. 1990).
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2. There are no conflicts between the claims of the named Plaintiffs and those of the putative class.
Defendants point to two sources of conflict between the claims of the named plaintiffs and those of members of the putative class, which they contend preclude a finding that the named plaintiffs will fairly and adequately protect the interests of the Class. First, they contend that at the same time that they imposed the new 32-hour maximum, which is the sole subject of Plaintiffs’ claims, Defendants changed the priorities of different groups on the waiting list for EDA services, making it easier for LT-PCS recipients to receive waiver services. If this change in priority groups for the EDA waiver were to be reversed, some members of the class would suffer and some would benefit. Ergo, Defendants claim, there is a conflict between the interests of the named plaintiffs and some members of the class.
This argument is specious. Plaintiffs are not challenging the changes Defendants have made in the order of selection of persons on the EDA waiver waiting list. and there is no reason why, if they win their challenge to the reduction in maximum hours of LT-PCS, there will have to be a change in priority groups for the EDA waiver. The order that people on the EDA waiting list are given waiver slots is independent of the maximum number of hours in the LT-PCS program.
Defendant does not articulate any budgetary or other reason why increasing the maximum number of hours of LT-PCS for people who would otherwise need to be institutionalized would require DHH to make changes in the waiting list priority for people who receive LT-PCS. Plaintiffs are only challenging the changes in the maximum hours in the LTPCS program, and this does not place them at odds with any other class members. The posited “conflict” simply does not exist.
The other “conflict” identified by Defendants is entirely speculative. Defendants point to rapid growth in the LT-PCS program (omitting from that discussion the fact that the program did not come into existence until 2004, as a result of Barthelemy v. Louisiana Department of Health
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and Hospitals, 3 a lawsuit over Louisiana’s utter failure to comply with the integration mandate of the ADA). They argue and claim that, “if Defendants are unable to implement the 32-hour services cap and other cost control measures, 4 they will be faced with the difficult decision of whether to eliminate the LT-PCS program entirely.” Thus, they claim, Plaintiffs’ claims conflict with the interests of the class.
If Defendants were to eliminate the LT-PCS program entirely, they would still face a challenge under the Americans with Disabilities Act, but the class would be much larger than only those people face institutionalization if they cannot obtain more than 32 hours of services. Numerous courts have clearly held that a state violates the ADA if it requires people to go into institutions to receive the same services they could receive in the community. See, e.g. Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180-81 (10th Cir. 2003); Townsend v. Qasim, 328 F.3d 511, 523 (9th Cir. 2003); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004); V.L. v. Wagner, 669 F. Supp. 1106, 1120 (N.D. Cal. 2009); Crabtree v. Goetz, 2008 WL 5330506 (Dec. 19, 2008).
Defendants’ argument that the 32-hour cap is essential to the existence of the entire LTPCS program, is one of the ultimate issues to be decided on the merits. The Court must decide whether the relief that Plaintiffs are requesting constitutes a “reasonable modification” in the program, or whether it would entail a “fundamental alteration” of the State’s services and programs. But it is not appropriate to decide that ultimate legal issue at the class certification phase of the proceedings.
3 see 2001 WL 1254859 (E.D. La. Oct. 18, 2001) (order approving settlement agreement); 2003 WL 1733534 (E.D. La. Mar. 31, 2003) (order approving modifications to settlement agreement); 2007 WL 4589885 (E.D. La. Dec. 28, 2007) (granting in part Plaintiffs’ motion to enforce settlement agreement and extending term of agreement); 294 Fed.Appx. 94 (5th Cir. 2008) (denying reconsideration of attorneys’ fee order). 4 Defendants do not identify the “other cost control measures” that they claim are vital to the existence of the program. Whatever they may be, they are not implicated by this action.
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“Nothing in either the language or the history of Rule 23 gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Eisen v. Carlisle & Jacquelin, 417 U.S. at 177; Walker v. Jim Dandy Co., 638 F.2d 1330, 1334 (5th Cir. 1981); Colorado Cross Disability Coalition v. Taco Bell, 184 F.R.D. 357 (certifying class of people with disabilities in ADA case); Thrope v. Ohio, 173 F.R.D. at 488 (same). An argument that a finding for Plaintiffs on the merits could lead to the complete elimination of the LT-PCS program is not the type of conflict that would render the named plaintiffs inadequate representatives of the class of persons similarly affected by Defendants’ proposed cuts.
Defendants’ attempt to identify groups of putative class members that would oppose the relief Plaintiffs seek in this lawsuit – those who receive less than 32 hours of service; those who currently receive more than 32 hours but who could continue to live in their homes with less than 32 hours of service; and future recipients of the service – ignores that the proposed class includes only those LT-PCS recipients who are at risk of institutionalization because of Defendants’ cut in the maximum level of services. Defendants point to no conflict between the named Plaintiffs and members of the class they seek to represent. 3. Plaintiffs do not object to a modification of the proposed class definition, though they do not agree with Defendants’ proposed definition.
Plaintiffs agree with one of Defendants’ contentions regarding the breadth of the class definition. It is true that Defendants’ rules permit an individual who can establish that he or she needs at least 32 hours of LT-PCS in order to avoid entering a nursing home to receive 32 hours a week. See La. Admin. Code Title 50, § 12901(D); Louisiana Register v. 36 no. 8, p. 1749 (Aug. 20, 2010). Therefore, there is no reason for the class definition to include individuals who do not claim that they need more than 32 hours a week of service.
Plaintiffs do not agree to limit the class to persons whose needs can be met with less than 42 hours of LT-PCS. They do note that Defendants’ program rules have contained an inflexible
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42-hour limitation since March 1, 2009. Louisiana Register, v. 35, no. 1 (January 2009) pp. 32– 34. However, if exceptions have been made to those limits, persons who have been receiving adequate LT-PCS through such exceptions, and whose continued existence in the community is threatened by the proposed cut to 32 hours, share the named plaintiffs interest and claims and should be included in the class.
The remaining modifications that Defendants suggest are subsumed within the class definition proposed by plaintiffs: that the class includes those who are at risk of being forced to enter a nursing home because of Defendants plan to reduce the level of community-based LTPCS services. The emphasis Defendants seek to place on alternative sources of care are unnecessary and argumentative. 4. Plaintiffs do not object to the dismissal of their due process claims without prejudice.
In Plaintiffs’ Memorandum in Response to Defendants’ Motion to Dismiss, they concede that their due process claims may be premature. They do not object to the dismissal of these claims without prejudice.
Plaintiffs do not object to Defendants’ submission of affidavits to counter Plaintiffs’ evidence. Plaintiffs request that, upon final hearing of this Motion, this Court grant their motion for class certification.
Date: January 25, 2011.
Respectfully submitted, /s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 205-6166 nhahn@advocacyla.org
Stephen F. Gold
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PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424 Counsel for the Plaintiff CERTIFICATE OF SERVICE I hereby certify that on January 25, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

HELEN PITTS, KENNETH ROMAN,

) Civil Action No. 3:10-cv-00635-JJB-SCR

DENISE HODGES, and RICKII AINEY, on )

behalf of themselves and all others similarly )

situated,

)

Plaintiffs

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT

Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232

Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291
Counsel for Defendants
Dated: March 30, 2011

Case 3:10-cv-00635-JJB -SCR Document 39 03/30/11 Page 1 of 46

TABLE OF CONTENTS

I.

Introduction...................................................................................................................................... 1

II. Statement of Facts............................................................................................................................ 3

A. LT-PCS Is Not Defendants’ Only HCBS Program............................................................. 3

B. Individuals in Nursing Facilities Have a Community Alternative...................................... 5

C. Defendants’ home and community-based services, including LT-PCS, serve an increasing number of individuals every year, while the population of nursing homes steadily declines. ..................................................................................................... 6

D. There Is No Evidence that the Imposition of the 32-Hour Maximum Will Lead to an Increase in Nursing Home Admissions........................................................................ 10

III. Standard of Review........................................................................................................................ 11

IV. The 32-Hour Cap Is Not Discrimination Under The ADA Because It Does Not Subject LT-PCS Recipients To “Unjustified Isolation.” ............................................................................ 12

A. The ADA Does Not Mandate that a State Provide Each LT-PCS Recipient with Services Sufficient to Eliminate the Risk of Institutional Care. ....................................... 12

B. Other HCBS Programs in the State Are Open to LT-PCS Recipients Who Seek Additional Services........................................................................................................... 16

1. LT-PCS Recipients Can Supplement Their Services with ADHC Services................................................................................................................ 17

2. LT-PCS Recipients Can Request EDA Services, and Many Already Have..................................................................................................................... 18

3. LT-PCS Recipients Who Are in Fact Admitted to a Nursing Facility Will Receive Priority for EDA Services. ..................................................................... 19

V. The ADA Does Not Require The State To Fundamentally Alter The Services It Provides To Individuals With Disabilities. ................................................................................................... 21

A. Plaintiffs Have Not Proposed a Reasonable Modification................................................ 22

B. The State Maintains a Comprehensive and Effectively Working Plan to Move Individuals from Nursing Facilities to the Community. ................................................... 24

1. Louisiana has achieved and continues to achieve great success in providing alternatives to institutionalization. ...................................................... 24

2. None of Plaintiffs’ Three Counterarguments Has Merit...................................... 29

C. The DOJ’s “Most Integrated Setting” Regulation Does Not Create A Right To Home And Community-Based Services Beyond What Olmstead Requires..................... 34

VI. The Matters That Plaintiffs Claim To Be In Dispute Are Not Material To The ADA Inquiry............................................................................................................................................ 36

VII. Plaintiffs Have Abandoned Their Remaining Claims.................................................................... 38

VIII. Conclusion ..................................................................................................................................... 39

DC: 3935130-1

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TABLE OF AUTHORITIES

CASES

Page(s)

Alexander v. Choate, 469 U.S. 287 (1985)...........................................................................................................13, 15

Alexander v. Sandoval, 532 U.S. 275 (2001).................................................................................................................35

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................................................................................................11

Arc of. Wash. State v. Braddock, 427 F.3d 615 (9th Cir. 2005) ........................................................................................... passim

Boyd v. Steckel, 2:10-cv-688, 2010 WL 4683997 (M.D. Ala. Nov. 12, 2010) ............................................19, 22

Bruggeman ex rel Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003) .............................................................................................30, 37

Bryson v. Stephen, 99-CV-558, 2006 WL 2805238 (D.N.H. Sept. 29, 2006)..................................................19, 29

Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006)..............................................................................................14, 21

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).................................................................................................................12

Cercpac v. Health & Hosps. Corp., 147 F.3d 165 (2d Cir. 1998).....................................................................................................14

Cruz v. Dudek, No. 10-23048-CIV, 2010 WL 4284955 (S.D. Fla. Oct. 12, 2010) ..........................................20

Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) .....................................................................................30

Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir. 1981) ...................................................................................................16

Firemen’s Mut. Ins. Co. v. Aponaug Mfg. Co., 149 F.2d 359 (5th Cir. 1945) ............................................................................................. 11-12

Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ...................................................................................14, 15, 20

ii Case 3:10-cv-00635-JJB -SCR Document 39 03/30/11 Page 3 of 46

Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001) .......................................................................................21
Frederick L. v. Dep’t of Pub. Welfare (Frederick I), 364 F.3d 487 (3d Cir. 2004)............................................................................................. passim
Frederick L. v. Dep’t of Pub. Welfare (Frederick II), 422 F.3d 151 (3d Cir. 2005).........................................................................................21, 25, 30
Haddad v. Arnold, No. 10-00414 (M.D. Fla. July 9, 2010) .............................................................................20, 31
Ligas v. Maram, No. 05C4331, 2010 WL 1418583 (N.D. Ill. Apr. 7, 2010)......................................................37
Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009) ...................................................................................................35
M.R. v. Dreyfus, No. C10-2-52Z, 2011 WL 31553 (W.D. Wash. Jan. 5, 2011).................................................16
M.R. v. Dreyfus, No. C10-2-52Z, 2011 WL 588511 (W.D. Wash. Feb. 9, 2011) ..............................................15
Michel v. Saint-Gobain Containers, Inc., Civ. A, 05-207, 2005 WL 3339568 (W.D. La. Dec. 8, 2005) .................................................39
Olmstead v. L.C., 527 U.S. 581 (1999)......................................................................................................... passim
Pa. Protection & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005)...............................................................................................25, 37
Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir. 2008) ...................................................................................................39
Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999).....................................................................................................21
Sagers v. Yellow Freight Sys., Inc., 529 F.2d 721 (5th Cir. 1976) ...................................................................................................12
Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) ......................................................................................... passim
Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001) .........................................................................................21
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Woodland v. Nalco Chem. Co., Civ. A 01-3337, 2004 WL 253442 (E.D. La. Feb. 10, 2004) ..................................................39
STATUTES 29 U.S.C. § 794(a) .........................................................................................................................35 42 U.S.C. § 1396a note ....................................................................................................................6 42 U.S.C. § 2000d-7(a)(1) ....................................................................................................... 35-36 42 U.S.C. § 12101(a)(2).................................................................................................................21 42 U.S.C. § 12134..........................................................................................................................34 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)...............6
OTHER AUTHORITIES 28 C.F.R. § 35.130(d) ....................................................................................................................34 30 La. Reg. 2831 (Dec. 2004) (codified at La. Admin. Code tit. 50, § 12905) .............................23 35 La. Reg. 401 (Mar. 2009) (amending La. Admin. Code tit. 50, § 12915(A)) ..........................10 35 La. Reg. 2447 (Nov. 2009) (amending La. Admin. Code tit. 50, § 8105)........................4, 5, 28 36 La. Reg. 1749 (Aug. 2010) (amending La. Admin. Code tit. 50, § 12915(A)) ..................10, 11 36 La. Reg. 2217 (Oct. 2010) (amending La. Admin. Code tit. 50, § 8105)...............................4, 5 37 La. Reg. 18 (Jan. 2011) (amending La. Admin. Code tit. 50, § 8301) .......................................4 Fed. R. Civ. P. 12...........................................................................................................................39 Fed. R. Civ. P. 56...........................................................................................................................11
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I. Introduction At issue in this case is whether Defendant s, the Louisiana Departm ent of Health
and Hospitals and its Secretary (collectively, “the Departm ent” or “DHH”), violated the Americans with Disabilities Ac t (“ADA”) when they reduced fr om 42 to 32 hours per week the maximum amount of services available to participants in the Long Ter m Personal Care Services (“LT-PCS”) program. Defendants contend that Plaintiffs—four individuals who currently receive services in excess of the new maximum—have failed to show th at the 32-hour cap constitutes discrimination under the ADA, as it was construed in Olmstead v. L.C. , 527 U.S. 581 (1999), and, in any event, have dem anded changes to the Department’s prog rams that go beyond the “reasonable accommodation” required by law.
With respect to whether the 32-hour cap on LT-PCS is discriminatory, Defendants believe the following facts are material and dispositive:
A. There are other program s (with varying wait tim es and geographical availability) that, alone or in conjunction with LT-PCS, can provide additional assistance to someone with Plaintiffs’ needs.
B. If Plaintiffs are in f act admitted to a nursing f acility, they will have pr iority access to these other services.
In support of their alternat ive argument that L ouisiana has a com prehensive, effectively working plan for placing qualifie d Medicaid beneficiaries in the community, Defendants believe the relev ant inquiry is r esults: the State’s overall record in a llocating its limited budget to provide a range of institutional and community-based alternatives. To that end, Defendants submit that the following facts are relevant and dispositive:

DC: 3935130-1

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C. Defendants’ home and community-based services, including LT-PCS, serve an increasing num ber of individuals every year, while the population of nursing homes steadily declines.
D. Defendants have seen no increase in the n umber of LT-PCS recipien ts transitioning to nursing facilities since they adopted the 32-hour cap in September; this is consistent with the Department’s prior experience when the maximum was reduced from 56 to 42 hours per week.
By contrast, Plaintiffs’ position, as articulated in their Opposition and Statement of Disputed Facts, is that the ADA requires an exhaustive inquiry as to the number of hours o f care each individual needs in order to receive adequate assistance in his or her home; predictions as to how many individuals will enter nursing homes under a service limitation; a value-inflected judgment as to whether the ch allenged service m aximum is “n ecessary”; a comparison of expenditures in various service settings, including whether those services could be provided more efficiently; and an inqu iry into the motivations of state policymakers in making determinations as to how best to allocate Medicaid resources.
In short, D efendants ask the Court to grant summ ary judgment based on the program they have and the outcom es that the cu rrent program has produced. Plaintiffs ask the Court to proceed to trial to m ake individual service determinations and to decid e whether the State could afford to implem ent some alternative program that m ight better suit the needs of particular individuals. As set forth below, this is not a proper inquiry under the ADA, and the motion for summary judgment should be granted.
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II. Statement of Facts A. LT-PCS Is Not Defendants’ Only HCBS Program. As set forth in the background to Defendant s’ Motion to Dismiss (which has been
converted to a motion for summary judgment), the State of Louisiana is committed to dedicating available resources to provide i ndividuals with disabilities a full array of quality, long-term care services that will enab le them to enjoy fu ll lives of inclusion, p roductivity, and selfdetermination in the settings of their choice. In furtherance of that goal, the State currently has several programs that provide hom e-and community-based services (“HCBS”) for individuals with disabilities, including the Adult Day He alth Care (“ADHC”) wa iver, the Elderly and Disabled Adult (“EDA”) waiver, the Program of All-Inc lusive Care for the Elderly (“PACE”), and LT-PCS. Defs.’ Statem ent of Undisputed Facts in Support of the Motion for Summary Judgment ¶4 (“SUF”).
ADHC services are provided at licensed facilities that are operational at least five hours per day on a regularly scheduled basis or as specified in the recipient’s plan of care. SUF ¶84. In addition to personal care services, ADHC facilities must provide transportation to and from the facility; counseling and education in the areas of heal th and nutrition; individualized exercise and recreation programs; nursing services; medical care management; and one hot meal and two snacks per day. SUF ¶¶85, 90. LT-PCS reci pients can supplement their benefits with services offered through the ADHC waiver. SU F ¶33. There is currently a short wait of approximately 5 m onths, but there is no wait fo r someone who has recently had an overnigh t hospital stay. SUF ¶95.
The State also provides long-term care to individuals with adult-onset disabilities through the EDA waiver. In lieu of an hourly ca p on services, the EDA program provides each participant with a n eeds-based “budget” of up to $40,046 per year. S UF ¶54-55. The enrollee
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may allocate the budget toward a variety of

services, which currently include support

coordination, transition intensive su pport coordination, environmental accessibility adaptation,

personal assistance services (a com bination of personal care services and companion care),

transition services, and ADHC services. See La. Admin. Code tit. 50, § 8301, 37 La. Reg. 18, 19-

20 (Jan. 20 11); SUF ¶57. This su mmer, the EDA waiver will be replaced with a new

“Community Choice” waiver that will offer a more comprehensive package of services and will

allow recipients greater flexibility to self-direct their care. SUF ¶¶105-108.

The EDA waiver has a capped num ber of slots and currently has a waiting list

(called the “Request for Services Registry”). SU F ¶¶59-60. As slots open up, priority is given to

individuals who have been abus ed or neglected, individuals w ith Lou Ge hrig’s disease, and

individuals in nursing facilities. See La. Admin. Code tit. 50, § 8105(B), 37 La. Reg. 18, 19 (Jan.

2011). As of March 29, 2011, every individual on th e EDA Registry who was in one of these

priority groups had already received an offer. SUF ¶64.

Although individuals cannot receive LT-PCS and EDA services at the sam e time,

they can continue to receive LT-PCS while they are on the waiting list for the EDA waiver. SUF

¶¶33, 72. U ntil October 2010, applicants who did not currently receive a ny HCBS were given

priority over LT-PCS recipients. See La. Admin. Code tit. 50, § 8105(B), 35 La. Reg. 2447, 2447

(Nov. 2009). Now the two groups are treated the same, and both are offered EDA slots according

to the date of application. See 36 La. Reg. 2217, 2218 (Oct. 2010) (amending id.).

While individuals who are not in one of the priority groups may wait longer than two years before being offered EDA servic es,1 many individuals put their nam e on the EDA

1 Before DHH revised the p riority groups, the State was offering EDA slots to in dividuals who requested EDA services on or before April 15, 2008. SUF ¶70. LT-PCS recipients who had requested EDA services
(continued…)
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Registry at the time they apply to be assessed for LT-PCS. In fact, all of the named plaintiffs in
the current action are on the EDA Registry, and so far, two Plaintiffs (Denise Hodges and Helen Pitts)2 and the only unnamed class member identified by Plaintiffs (Cleo Lancaster) have already
received EDA offers. SUF ¶73.
Finally, Defendants also have two PACE programs, serving the Baton Rouge and
New Orleans areas. SUF ¶109. W hile both of these programs also have limited enrollment, both
are currently accepting new enrollees. SUF ¶112. (None of the na med plaintiffs live in these
areas and meet the PACE eligibility criteria, but other members of the purported class might.)
B. Individuals in Nursing Facilities Have a Community Alternative. As mentioned above, the EDA and ADHC waiv ers give priority to individuals in
nursing facilities. Recently, DHH adopt ed a rule limiting priority offers to individuals who have
been in a nursing facility for 90 c onsecutive days. See 36 La. Reg. at 2218 (am ending La. Admin. Code tit. 50, § 8105(B)).3 This was to address the situation where some individuals were
only in need of nursing home care for a short period (for exam ple, rehabilitation after a hospital
stay) or were trying to avoid th e waiting list by entering a nursing hom e for a brief stay and then
before that date did not get an offer but remained on the Registry . SUF ¶71. The State ha s since begun giving offers to this group of LT-PCS r ecipients. The State most recently offered EDA slots to LT-PCS recipients who applied for the EDA waiver by November 30, 2007. SUF ¶72. 2 Defendants wish to correct the st atement in th eir Memorandum in Opposit ion to Class Certification (ECF No. 32), that “DHH records indicate that M s. Pitts never sought an ED A waiver slo t prior to the filing of this lawsuit.” Id. at 4. This statement was based on Hugh Eley’s declaration of October 21, 2010, in which he stated that “Ms. Pitts is not on the Registry for EDA services.” (ECF No. 11-2, ¶21) Although Mr. Eley’s declaration was correct at the time, after subsequent discussions with Plaintiffs’ counsel, DHH determined that Ms. Pitts may have called regardin g the EDA waiver in 2007 but was not placed on the Registry either because sh e had not subsequently retu rned the required paperwork or because of an error once her paperwork was r eceived. As a result, Depa rtment personnel m anually added Ms. Pitts to t he EDA Registry with a request date of September 5, 2007. 3 There was no length-of-stay requirement under the old rule. See La. Admin. Code tit. 50, § 8105(B)(2), 35 La. Reg. 2447, 2447 (Nov. 2009).
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returning home to wait for their EDA offer. SUF ¶75. The agency determ ined that a “length of stay” requirement would close this loophole and reserve priority offers for nursing facility residents who truly needed EDA services in or der to transition back into the community. DHH concluded that 90 days was an appropriate length of stay because that is the standard used by the federal government in the Money Follows the Pers on Program to determ ine who is at risk of being a long-term resident of a nursing facility. SUF ¶76; see also 42 U.S.C. § 1396a note, as amended, Patient Protection and A ffordable Care Act, Pub. L. No. 111-148, § 2403, 124 Stat. 119, 304-05 (Mar. 23, 2010).4
DHH adopted the new policy after several discussions with the HCBS Redesign Workgroup. SUF ¶77. The W orkgroup included offi cials from DHH a nd several stakeholder advocacy groups—including the Advocacy Center —and was intended to solicit these groups’ input on changes to the State’s HCBS offerings. SUF ¶78. The consensus of the Workgroup was that DHH should revise its policy, SUF ¶79, and that a 90-day period was appropriate, SUF ¶80.
C. Defendants’ home and community-based services, inclu ding LT-PCS, serve an increasing number of individ uals every year, w hile the population of nursing homes steadily declines. Over the last decade, L ouisiana has take n significant steps to provide a greater
array of long-term care service options for i ndividuals with different needs. In SFY 2000, Louisiana served 34,727 individuals in private nu rsing facilities while providing HCBS to only 1,030 people. SUF ¶8. As of SFY 2010, the num ber of individuals receivi ng private nursing facility services dropped to 29,392—a decrease of over 15% in ten years. SUF ¶¶10, 14. 5 As a
4 Additionally, DHH does not approve stays of over 90 days based solely on the need for rehabilitationrelated services. 5 While the State also operates two public nursing facilities serving approximately 250 individuals, those homes tend to serve very high needs patients who are hard to place in a private facility and whose needs
(continued…)
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result, while Louisiana remains among the States with the highest num ber of nursing home beds per capita, SUF ¶17, its nursing faci lities now have nearly the lowest occupancy rate in th e country. SUF ¶18. Meanwhile, the gr owth in the num ber of HCBS recipients far outpaced the drop in nursing facility recipients. The State’s HCBS programs served 18,215 individuals in SFY 2010, an increase of 1668% since SFY 2000 and of 224% since SFY 2005. SUF ¶¶10, 13.
The growth in the State’s HCBS populat ion has been accompanied by a shift in expenditures toward HCBS. In SFY 2010, t he State was devoting 29% of long-term care expenditures to HCBS. SUF ¶22. Between SFY 2005 and SFY 2010, expenditures on HCBS increased by 277.5% while expenditu res on private nursing facil ities grew by approxim ately 18%. SUF ¶25. According to Plaintiffs’ expert witness, once expenditures are adjusted for inflation, nursing facilities have seen a decrease in per capita expenditures over the last decade. Pls.’ Exh. 25, Declaration of H. Stephen Kaye, at ¶12 (ECF No. 38-3, page 407 of 455).
The lion’s share of the growth in HCBS recipients and expenditures has been due to the LT-PCS program. Unlike the EDA and ADH C waiver programs, LT-PCS is a Medicaid state plan service, which m eans that the Stat e cannot cap enrollm ent. LT-PCS is an optional Medicaid benefit, but once a State decides to offer the benefit, it must be made available to any Medicaid recipient that meets the criteria for enrollment.
The number of LT-PCS recipients has increased substantially every year since the program began: from 1,402 in SF Y 2005 to mo re than 12,000 today, SUF ¶28, the LT-PCS
likely could not be met in an HCBS option. Second Decl. of Hugh R. Eley, at ¶30. Therefore, they are not included in the data.
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population has increased by nearly 800% in only five years. SUF ¶29. 6 Enrollment continues to increase by approximately 130 people every month. SUF ¶31.
Not surprisingly, the increase in recipients has b een accompanied by a staggering increase in expenditures. Since SFY 2005, expenditures on LT-PCS have grown by over 600% to $237,616,920 in SFY 2010. SUF ¶35. LT-PCS was the fast est growing Medicaid service in three of the last f ive fiscal years, and only one line item in the State’s entir e Medicaid budget grew faster over the entire five-year period. SUF ¶26.7 The program’s future growth is expected to be significant as a result of the aging state popula tion and the expansion of Medicaid eligibility under the Affordable Care Act. SUF ¶31.8
Faced with this g rowth, the po licy of DH H is “to serve th e greatest number of people that [it] can serve given the funding that is available.” SUF ¶7. In keeping with that policy, DHH decided to reduce the cap on LT-PCS se rvices from 42 hours per week to 32 hours per week. SUF ¶43. DHH has estim ated that the 32-hour cap will allow it to avoid new expenditures of approxim ately $5 m illion annually in SFY 2011 and another $24 m illion annually in SFY 2012. SUF ¶36.
This is no way signals a retreat from the State’s commitment to providing choice in long-term care services. The St ate has initiated new program s to help individuals move fr om
6 These statistics refer to the num ber of individuals who received LT-PCS but neither ADHC nor EDA. SUF ¶28. Currently , individuals can receive both LT-PCS and ADHC. S UF ¶33. Previously , EDA participants received personal care services through the LT-PCS program; now such services are paid for with the waiver budget. See SUF ¶32. 7 The exception was the pu blic psychiatric free standing unit, and t hose expenditures pale in comparison to LT-PCS. SUF ¶26. 8 The EDA and ADHC wai vers have also seen significan t increases in recipients and expenditures since SFY 2000, although the capped nature o f those programs means that the growth is more predictable and controlled than is the expansion of LT-PCS. See SUF ¶¶ 81, 92, 96.
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nursing homes into the comm unity. In 2007, Louisian a successfully applied for a federal grant under the Money Follows the Person (“MFP”) program. SUF ¶99. Under the MFP program, States qualify for a higher percentage of federa l matching dollars to help cover the costs of moving people out of nursing hom es. SUF ¶ 100. Louisiana also uses MFP grant m oney to engage in outreach to nursing facility residents and to hire staff who can identify those residents who want to m ove into the comm unity. SUF ¶100. The MFP program also provides recipients with transition-related services. These include assistance in finding a resi dence, paying a rental deposit, and identifying an HCBS provider. SUF ¶101. Once an ind ividual transitions to th e community, they can receive long term care through one or m ore of the State’s several HCBS programs. SUF ¶102. The MFP program successfully helped 80 individuals tran sition out of nursing facilities between November 2009 and February 2011, and another 100 to 120 transitions were pending. SUF ¶103. Many others m ade the transition without the assis tance of the MFP grant. SUF ¶104.
Part of Louisiana’s strategy for serving a greater percentage of individuals with adult-onset disabilities in the community involv es reducing the supply o f institutional services. SUF ¶117. To that end, Louisiana has instituted a “Bed Buyback Program” that has led to the elimination of 461 nursing hom e beds from the market since July 2008 and to the perm anent closure of 4 nursing facilities. SUF ¶ ¶118-119. Going forward, the State expects this program to lead to the elim ination of 2 nur sing facilities p er year and an average of 115 to 144 beds pe r facility. SUF ¶120. For each facility closed un der this program, the State expects to incur new costs for five years but then see savings of $378,706 per year thereafter. SUF ¶121. Additionally, the State established a Private Room Conve rsion Program in 2007. SUF ¶122. The program gives nursing facilities a financ ial incentive to convert semi-private Medicaid rooms into private
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rooms and, in doing so, eliminate nursing home beds from the market. So far the program has led to the closure of 310 beds. SUF ¶123.
D. There Is No Evidence that the Imposi tion of the 32-Hour Maximum Will Lead to an Increase in Nursing Home Admissions. The LT-PCS program has always had a lim it on the num ber of hours of personal
care any individual could receiv e in a given week. From its inception in 2005 until March 2009, the LT-PCS program provided up to 56 hours per week of Medicaid -funded personal care services. SUF ¶37. In March 2009, the cap was reduced to 42 hours per week. See 35 La. Reg. 401, 402 (Mar. 2009) (am ending La. Admin. Code tit. 50, § 12915(A)).9 Effective September 5, 2010, the cap becam e 32 hours per week. See 36 La. Reg. 1749, 1752 (Aug. 2010) (am ending La. Admin. Code tit. 50, § 12915(A)). Both reductions in the se rvice cap were accompanied by changes to the m ethod for allocating hours among recipients so that the distribution would account for the new cap and better re flect recipients’ relative acuity. See Opp’n at 18-19. DHH has closely monitored the effects of these chan ges to the LT-PCS program. SUF ¶46. In neither instance has the agency observed an uptick in the rate at which LT-PCS recipients transition into nursing facilities. SUF ¶47-52.
There were 941 LT-PCS participants who received more than 42 hours of services per week before the 42-hour cap took effect and received fewer than 42 hours afterwards. SUF
9 The State reduced the cap on LT-PCS hours to 42 in order to bring the EDA waiver into co mpliance with federal laws r egarding waiver “ cost effectiveness.” Opp’n at 18. This servic e reduction was discussed with class counsel in the Barthelemy litigation, including lead counsel in the Pitts case. SUF ¶39. Class counsel agreed to the reduc tion, which was incorporated into the Barthelemy settlement agreement. SUF ¶40. Plaintiffs included the initial Barthelemy Settlement Agreement and the First Supplemental Settlement Agreement as Exhibits 14 a nd 15 in t heir summary judgment materials. (ECF No. 38-3, pages 297 and 334 of 455) Defendants are attaching the Second Supplem ental Settlement Agreement, which Plaintiffs o mitted, as Attachment E to the Second Declaration of Hugh R. Eley. Plaintiffs have asked the Court to take judicial notice of the Barthelemy pleadings. (Opp’n at 11 n.55)
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¶42. Although nearly 1000 individua ls had service reducti ons as a result of the 42-hour cap, the rate of transitions from LT-PCS to nursing homes did not increas e after DHH cut the num ber of hours of paid care participants received. SUF ¶48. Rather, the per centage of LT-PCS recipients transitioning into nursing facilities steadily declined from 6% in October-December 2005 to 4% in January-March 2009 to 3% in July-Septe mber 2010. SUF ¶47. The State announced the 32hour cap on August 20, 2010, and it took effect on Septem ber 5. See 36 La. Reg. at 1749, 1752. In September-December 2010, 512 individuals who prev iously received greater than 32 hours of LT-PCS had their services reduced under the new rule. SUF ¶49. The data show that 2% of the LT-PCS recipients who were enrolled in September transitioned into nursing facilities in October through December. SUF ¶50. That is the lowest rate of any quarter sin ce the LT-PCS progra m began. SUF ¶46-50. T he data for transitions fr om LT-PCS to nursing f acilities in January through March are not yet available, but Defendants are continuing to monitor the rate of nursing home admissions for LT-PCS recipients. SUF ¶51-52. III. Standard of Review
“The court shall grant summ ary judgment if the movant shows that the re is n o genuine dispute as to any m aterial fact and the movant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “[ T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properl y supported motion for summary judgm ent; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty L obby, Inc., 477 U.S. 242, 247-48 (1986). The applicable subs tantive law determ ines which facts are material, and “[f]actual disputes that are ir relevant or unnecessary will not be counted.” Id. at 248. An issue as to a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Firemen’s Mut. Ins. Co. v. Aponaug Mfg.
11 Case 3:10-cv-00635-JJB -SCR Document 39 03/30/11 Page 16 of 46

Co., 149 F.2d 359, 362 (5th Cir. 1945) (“A pretended i ssue, one that no substantial evidence can be offered to maintain, is not genuine.”).
Because “[o]ne of the principal pu rposes of th e summary judgment rule is to isolate and dispose of f actually unsupported claims,” Rule 56 doe s not require “that the m oving party support its m otion with affida vits or other sim ilar materials negating the opponent’s claim.” Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). “[T]he opposing party is not entitled to hold back his evidence until trial on the possibility that an issue of material fact might arise. . . .” Sagers v. Yellow Freight Sys., Inc. , 529 F.2d 721, 728 n.13 (5th Cir. 1976) (citation and internal quotation m arks omitted). The fact th at the n onmovant “vigorously dispute[s] th e legal conclusions to be drawn fr om the facts presented” is “no bar to the grant of summ ary judgment.” Id. IV. The 32-Hour Cap Is Not Discrimination Under The ADA Because It Does Not
Subject LT-PCS Recipients To “Unjustified Isolation.” Plaintiffs purport to rest their ADA clai m on the interpretation of the statut e
adopted by the Supreme Court in Olmstead v. L.C. , 527 U.S. 581 (1999). At the sam e time, Plaintiffs observe of Olmstead that “[t]he instant action presen ts a very different situation.” (Opp’n at 33) W e agree. The heart of Plaintiffs’ legal theory is that th e ADA requires States to provide Medicaid recipients with enough personal care se rvices to elim inate the risk that they will have to enter a nursing facility. No reading of Olmstead supports that theory.
A. The ADA Does Not Mandate that a State Provide Each LT-PCS Recipient with Services Sufficient to Eliminate the Risk of Institutional Care. In Olmstead, the Supreme Court considered whether the ADA required a State to
allow two women with developmental disabilities and mental illness to leave the state psychiatric unit and to receive treatment instead through the State’s HCBS waiver program . See 527 U.S. at 593. There was no question in Olmstead of whether the waiver provi ded services sufficient to
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eliminate the risk that the plaintiffs would agai n need institutional placem ent. Rather, the Court observed that the plaintiffs’ needs could be m et by a community-b ased waiver program that the State already supported, id., and tha t the waiv er had unf illed slots that could be of fered to the plaintiffs, id. at 601 (noting that the State was usi ng 700 of 2109 approved slots). Under these circumstances, the Co urt held that the plaintiffs’ “continued confinem ent in a segregated environment,” id. at 593, qualified as “unjustified isolati on of individuals with disabilities” and was “properly regarded as discrimination based on disability,” id. at 597.
The limits of Olmstead are clear from the facts of the case as well as from the Court’s cautionary language. The Olmstead Court expressly declined to hold “that the ADA imposes on the States a standard of care for whatev er medical services they rend er” or “that the ADA requires States to provide a certain level of benefits to individuals with disabilities.” Id. at 603 n.14 (citation and internal quotation m arks omitted). And the Court m ade clear that “[t]he State’s responsibility, once it prov ides community-based treatment to qualified persons with disabilities, is not boundless.” Id. at 603.
These limitations on Olmstead’s reach are consistent with the Court’s long-settled interpretation of the Rehabilita tion Act.10 In Alexander v. Choate , 469 U.S. 287 (1985), a unanimous Court established that a “State is no t required to assu re the handicapped ‘adequate health care.’” Id. at 309. The plaintiffs in Choate brought a Rehabilitation Act challenge to Tennessee’s reduction from 20 to 14 in the number of inpatient hospital days that the State would reimburse through its Medicaid program . Id. at 289. The Court upheld the service lim itation, finding “unsound” the plain tiffs’ suggestion th at the policy was discrim inatory because they
10 Plaintiffs ag ree that the RA and the ADA should be treated as coterminous . (Opp’n to Defendants’ Motion to Dismiss at 4 n.1 (ECF No. 17)). Our references to th e ADA refer to both statutes unles s the context forbids it.
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required more than 14 days of i npatient care in order to have meaningful access to the service. Id. at 302-03. The claim that 14 days was inadequa te to meet their needs “rest[ed] on the notion that the benefit provided through state Me dicaid programs is the am orphous objective of ‘adequate health care.’ But Medicaid programs do not guarantee that each recipient will rec eive that level of health car e precisely tailored to hi s or her particular needs. Instead, the benefi t provided through Medicaid is a part icular package of health care services, such as 14 days of inpatient coverage.” Id. at 303.
So too here. The State offers a service that provides 32 hours per week of personal care. Like the plaintiffs in Choate, Plaintiffs here consider the service the State o ffers to be inadequate, and their proposed rule would establish a m inimum level of services that the State must provide to individuals in th e community ( i.e., the lev el necessary to pr event them from being “placed at risk of institutionalization”). (Opp’n at 31) In short, Plaintiffs ask this Court to find in the ADA exactly what the S upreme Court has twice declin ed to. Cf. Buchanan v. Maine, 469 F.3d 158, 174 (1st Cir. 2006) (“[T]he ADA does no t itself mandate the provision of services . . . .”); Cercpac v. Health & Hosps. Corp., 147 F.3d 165, 168 (2d Cir. 1998) (“[T]he disabilities statutes do not guarantee any par ticular level of medical care fo r disabled persons, nor assure maintenance of service previously provided.”).
Plaintiffs rely (Opp’n at 30-32) on Fisher v. O klahoma Health Care A uthority, 335 F.3d 1175 (10th Cir. 2003), but Fisher is not as broad as Plaintiffs claim . In that case, the Tenth Circuit held that the plaintiffs had stat ed a claim under the ADA when they challenged a State’s policy of providing unlim ited prescriptions to nursing facility residents but no m ore than five prescriptions to indi viduals in the community. See id. at 1178-79. Thus, the comm unitybased plaintiffs in Fisher asked for exactly the same services that they could receive in a nursing
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facility. In this case, Plaintiffs’ physicians have stated that their patients receive more one-on-one attention to activ ities of daily living in the co mmunity than they would in a nurs ing facility.11
Thus while Fisher itself went beyond what Olmstead said the ADA requires, Plaintiffs ask this
Court to go much further. Cf. M.R. v. Dreyfus, No. C10-2-52Z, 2011 W L 588511, at *13 (W .D.
Wash. Feb. 9, 2011) (to be published) (distinguishing Fisher on this and other grounds). There is
no limiting principle on the a mount of services Pl aintiffs would require the State to provide ,
other than that the State need not provide more than is adequate. But see Choate, 469 U.S. at 309
(holding a “State is not required to assure the handicapped ‘adequate health care.’”).
Nor is the re any m erit to Plaintif fs’ effort to re formulate their Olmstead-based
argument as an argum ent that the 32-hour cap on LT-PCS services “dis criminates against LT-
PCS recipients based on the severity of their disabilities.” (Opp’n at 29-30) First, if Plaintiffs are
right, any limit on services discriminates against individuals who require more. Yet as their own
evidence shows, nearly ever y State caps either hours or co sts in its HCBS programs. See Pls.’
Exh. 26, Henry J. Kaiser Fam ily Found., Medicaid Home and Community-Based Programs :
Data Update (Feb. 2011), at 38 tbl.9 (ECF No. 38-3, page 450 of 455); see also Memorandum in
Support of Defs.’ Motion to Dism iss at 22 (EC F No. 11-1) (noting that 20 States do not have a
11 Pls.’ Ex h. 8, Decl. of Gregor y Ward, MD, at ¶ 14 (ECF No. 38- 3, page 278 of 455) (“In a nursing facility, [Helen Pitts] will not receive the same one-on-one attention to her activities of daily living, which she presently receives.”); Pls.’ Exh. 9, Decl. of Keyna Whitney, MD, at ¶12 (ECF No. 38-3, page 281 of 455) (“In a nursing facility, [ Kenneth Roman] will not receive the same o ne-on-one attention to hi s activities of daily living or his health care which he presently receives.”); Pls.’ Exh. 10, Letter fro m Alireza Minagar, MD, FAAN, at 2 (ECF No. 38-3, page 285 of 455) (“I do not believe Ms. Hodges can or will receive the sam e level of m edical/health care and attention in a nursing facility that she receives in the community, and she will not receive the same o ne-on-one attention to her activities of daily living, which she presently receives and requires.”); Pls.’ Exh. 11, Decl. of Christophe r Lege, MD, at ¶11 (ECF No. 38-3, page 288 of 455) (“In a nursing facilit y, [Rickii Ainey] will not receive the same level of oneon-one attention to her activities of daily living.”). W ith limited exceptions, the minimum requirement in Louisiana is that nursing facilities provide 2.35 hours of direct care per resident per day. SUF ¶19.
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personal care state plan service, and m any that do provide less than 32 hours a week). Second, Plaintiffs’ theory would render discrim inatory any change in any Medicaid program if that change “disproportionately affects” recipients with different levels of acuity. The result would be paralysis for the entire Medicaid program. Cf. M.R. v. Dreyfus, 2011 WL 31553, at *8 n.8 ( W.D. Wash. Jan. 5, 2011) (“[T]he variati on in federally approved State li mitations on the availability of personal care services is indica tive of the discretion afforded to the States in crafting personal care programs.”). Third, assuming the cases Plaintiffs cite stand for the proposition Plaintiffs say they do, they are all inconsistent with th e narrower reading of the ADA adopted in Olmstead. Plaintiffs cite no post-Olmstead cases that support their argum ent. Fourth, the Complaint did not allege facts sufficient to give rise to this theory of Plaintiffs’ case; to do so, the Complaint would have had to allege how the chal lenged rule incomparably affected LT-PCS recipients outside the asserted class. It d idn’t, and Plain tiffs should not be perm itted to constructively am end the Complaint now. Cf. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981) (stating that a complaint need not “categorize correctly the legal theory giving rise to the claim” but must “allege[] facts upon which relief can be granted”). In short, both their main argum ent and their new one lack merit.
B. Other HCBS Programs in the State Are Open to LT-PCS Recipients Who Seek Additional Services. Although Olmstead concluded that “unjustified isolation” in an institu tion
constitutes discrimination under the ADA, Plaintiffs have not shown that they will be subjected to “unjustified isolation” and therefore have not shown that the 32 -hour cap on LT-PCS is discriminatory. Louisiana provides personal car e services through several HCBS program s in addition to LT-PCS, and these s ervices are avai lable to Plaintiffs, e ither immediately or
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eventually. In these circum stances, the 32-hour cap on LT -PCS cannot fairly be said to cause “unjustified isolation” under Olmstead.
1. LT-PCS Recipients Can Supplement Their Services with ADHC Services.
As set forth above, LT-PCS recipients, in cluding those who need m ore than 32 hours of personal care assistance per week, ca n supplement their LT-PCS with ADHC services. Plaintiffs did not m ention the ADHC program in the Complaint and even now have little to say about it. They m ake basically two points: the wait for services is too long and there are not ADHC facilities in every area of the State. The first argument is m eritless, and the second is inapplicable to at least three of the named plaintiffs.
LT-PCS recipients who apply for ADHC services cu rrently wait abo ut five months for t heir waiver offer.12 Plaintiffs describe the five-m onth wait as “lengthy.” (Opp’n at 15) The fact is that the LT-PCS service reductions are being implemented on a rolling basis, SUF ¶44, and LT-PCS recipients can apply for ADHC serv ices at any time. SUF ¶33. If Plaintiffs had requested services rather than f iling suit, they would already have received their offers.13 Plaintiffs cannot reasonably claim that a wait of this length is unreasonable.
Plaintiffs also note (Opp’n at 16) that som e members of the proposed class m ay not have an ADHC fac ility near their current residence. Each ADHC facility is required to provide recipients with transp ortation to and from the facility. SUF ¶85. Of the four na med
12 Individuals who have ha d an overnight hospital stay in the last 30 da ys and those who have been in a nursing facility for at least 90 consecutive days do not have a wait. SUF ¶95. 13 As of March 22, 2011, the State was offering ADHC slots to LT-PCS recipients who applied for the ADHC waiver on October 22, 2010. SUF ¶94.
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plaintiffs, three live within the transportation range of an ADHC facility that accepts Medicaid.14 That other individuals do not liv e near an ADHC facility does not explain why these plaintiffs have decided not to take advantage of the services the State has to offer.
The fourth plaintiff, Kenneth Rom an, lives 34 miles from an ADHC facility that accepts Medicaid, and Defendants have not determ ined whether a facility in h is region would provide him with transportation to and from his hom e. SUF ¶89. Even if that transportation service is lacking, its unavail ability is not discrim inatory. The ADA’s prohibition against unjustified isolation in institu tions does not m ean that States must provide HCBS whereve r any qualified individual ch ooses to live, and Mr. Rom an would ha ve the services he needs if he relocated to a comm unity where th ey are available or if he relied on other form al or inform al supports to provide all or part of his transportation.
2. LT-PCS Recipients Can Request EDA Services, and Many Already Have.
As mentioned above, L ouisiana also o ffers the EDA waiver , which provides a budget for services that Plaintiffs concede “w ould certainly be adequate” for them to avoi d nursing facility p lacement. (Opp’n a t 14) Two of the four nam ed plaintiffs, and the only cla ss member referenced in Plaintiffs’ filings, have al l already received EDA offers, with services to begin shortly.
The two plaintiffs who have not yet receiv ed EDA offers do not argue that they should be allowed to bypass the waiting list and enroll in the EDA program ahead of others, and Olmstead would foreclo se such an argum ent. See 527 U.S. at 606 (“[ A] court would have no
14 Helen Pitts lives 2.6 miles away from the ADHC of Livingston Parish, SUF ¶86; Denise Hodges lives 7.7 miles away from Christus Schumpert ADHC, SUF ¶87; and Rickii Ainey lives 4.2 miles away from New Directions ADHC, SUF ¶88.
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warrant effectively to order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions .”). Instead, Plaintiffs make the more aggressive argument that the State is required to p rovide them with whatever services they need through the LT-PCS program, making it unnecessary for them to receive EDA services at all. That line of argum ent cannot be sustained in light of the substantial authority holding that waiting lists for waiver services are perm issible. See Olmstead, 527 U.S. at 605-06; see also Arc of. Wash. State, Inc. v. Braddock , 427 F.3d 615, 621 (9th Cir. 2005); Boyd v. Steckel, 2:10-cv688, 2010 WL 4683997 passim (M.D. Ala. Nov. 12, 2010); Bryson v. Stephen, 99-CV-558, 2006 WL 2805238 passim (D.N.H. Sept. 29, 2006).
3. LT-PCS Recipients Who Are in Fact Admitted to a Nursing Facility Will Receive Priority for EDA Services.
Assuming the 32-hour cap on LT-PCS does re sult in Plaintiffs seeking nursing facility services, they will be given priority for an EDA offer after 90 da ys. Plaintiffs’ temporary stay in a nursing facility in the interim is not “unjustified isolation” under Olmstead.
It is undisputed that Plaintiffs would be placed in a high priority group for the EDA waiver if they entered a nur sing facility for 90 consecutive days, SUF ¶62, and that, during this period, they would not be required to forfeit their resi dence in the community. SUF ¶66. Although they would “not be guaranteed adequate community services on the 91st day,” (Opp’n at 30), it is undisputed that, as of March 29, 2011, no one on th e EDA Registry who had resided in a nursing facility for 90 days was still waiting for a waiver offer. SUF ¶64. Once an offer is made, it generally takes another 60 to 90 days for EDA serv ices to commence, although the individual would not be required to rem ain in the nursing facility if he or she wish ed to return home prior to the commencement of EDA services. SUF ¶¶65, 67. This latter period results from the person-centered planning that is part of the EDA waiver. The support coordinator is required
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to meet with the indiv idual and co mplete their evaluation, to dete rmine the re cipient’s EDA budget, to help develop a com prehensive plan of care tailored to the i ndividual’s needs and preferences, and to find the recipient housing (if necessary). SUF ¶65.
Plaintiffs maintain that the State discriminates against them to the extent that they must “physically enter a nursing facility as a condition of receiv ing [services].” (Opp’n at 30) Plaintiffs are incorrect. Again Plai ntiffs rely on the Tenth Circuit’s Fisher decision. Fisher involved a challenge to a State’ s decision to provide nursing f acility residents with unlim ited prescriptions and HCBS recipients with no more than five. See 335 F.3d at 1178-79. There is no indication in the opinion that individuals who required m ore than five prescriptions would ever be able to get them outside a nursing hom e. Because it is undisputed that Plaintiffs in this c ase will enter a nursing f acility only temporarily, if at all, Fisher is in apposite, as ar e most of the district court cases Plaintiffs cite without explanation.
Plaintiffs do cite one unpublished district court decision that does support their position. Haddad v. Arnold, No. 10-00414 (M.D. Fla. July 9, 2010) (ECF. No. 49); see also Cruz v. Dudek, No. 10-23048-CIV, 2010 WL 4284955, at *13 (S .D. Fla. Oct. 12, 2010) (following Haddad). The Haddad court addressed the issue presented here in only a single paragraph of an otherwise lengthy opinion, it did so without any citations to supporting authority, and it assumed without analysis that even a tem porary stay in a nursing facility is discrim inatory. See Haddad, supra, at 35-36.
Haddad was wrongly decided, and it is inconsistent with Olmstead. At issue in Olmstead was whether “continued confinement” in an institution was discriminatory. 527 U.S. at 593 (majority opinion); see also id. at 626 (Thom as, J., dissentin g) (agreeing that the case involves “[c]ontinued in stitutional treatment”). The Court acknowledged that som e individuals
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who are qualified for H CBS “may need institutional care from time to time” when their need s exceed the level of care av ailable in the community. Id. at 605 (plurality opinion).15 Because the Court considered such temporary placements appropriate, they cannot also qualify as discriminatory “unjustified isolation,” id. at 597.
The State’s policy is to promptly offer EDA services to qualified individuals who prove unable to remain in the community with the services LT-PCS provides. This policy is no t representative of the “isolat[ion] and segregat[ion]” that the ADA and Olmstead identified as discrimination, Olmstead, 527 U.S. at 588-89, 600 (quoting 42 U.S.C. § 12101(a)(2)), does not “perpetuate[] unwarranted assum ptions that [Plaintiffs] are incapable or unworthy of participating in community life,” id. at 600, and will not lead to the “continued confinement” of Plaintiffs or the class they purport to represent, id. at 593. V. The ADA Does Not Require The State T o Fundamentally Alter The Services It
Provides To Individuals With Disabilities. As discussed in Part IV, Plaintiffs have not shown the S tate’s policies to be
discriminatory. Accordingly, there is no need to consider whether the relief Plaintiffs seek would be a “reasonable m odification” of the State’s programs (which is required) or a “fundam ental alteration” (which is not). See Buchanan, 469 F.3d at 176 n.12; Rodriguez v. City of New York , 197 F.3d 611, 619 n.6 (2d Cir. 1999) (declining to reach the reasonable-modification question).
15 Several lower court opinions indicate that Olmstead concerns only indefinite institutionalization. See, e.g., Frederick L. v. Dep’t of Pub. Welfare (Frederi ck II), 422 F.3d 151, 158 (3d Cir. 2005) (concluding the State lacked an adequate plan to end the plaintiffs ’ “unnecessary and indefinite institutionalization”); Frederick L. v. Dep’t of Pub. Welfare , 157 F. Su pp. 2d 509, 541 (E.D. P a. 2001) (co ncluding that institutionalized plaintiffs “are not left without recourse under Olmstead simply because the State has secured their indefinite placement on a waiting list”); cf. Williams v. Wasserma n, 164 F. Supp. 2d 591, 597 (D. Md. 2001) (n oting the plaintiffs sought a declar ation that the State cannot “confine the plaintiffs in state psychiatric hospitals indefinitely”).
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However, even if the Court were to conclude that Plaintiffs may be able to prove “unjustified isolation” in vi olation of the A DA, Defendants are still entitled to summ ary judgment, because it is apparent that Plain tiffs’ request for relief goes beyond a reasonab le modification and would funda mentally alter the Medicaid servic es offered by the State. The “Supreme Court has instructed courts to be symp athetic to fundamental alteration defenses, and to give states ‘leeway’ in adm inistering services for the disabled.” Braddock, 427 F.3d at 618 (quoting Olmstead, 527 U.S. at 605); see Boyd, 2010 WL 4683997, at *10. Any rule that “would leave the State virtually defenseless” is “unacceptable.” Olmstead, 527 U.S. at 603.
A. Plaintiffs Have Not Proposed a Reasonable Modification. Plaintiffs bear the burden of proposing a reasonable modification, Frederick L. v.
Dep’t of Pub. Welfare (Frederick I ), 364 F.3d 487, 492 n.4 (3d Ci r. 2004), which under Olmstead must take into account the resources available to the State and the needs of others with disabilities. See 527 U.S. at 607. 16 Plaintiffs have not consistent ly articulated the modif ication they seek and have not shown why it would not result in reduced services for others.
It is not clear whether Plaintiffs’ requested modification would allow the State to continue applying its pr evious 42-hour cap on LT-PCS. Plaint iffs suggested in their initial opposition to Defendants’ m otion to dismiss that “[t]he reasonable accommodation proposed is to continue to assess each person with a disabil ity individually and to authorize only the num ber of hours, up to 42 per week, that the person requires to a void institutionalization.” (Opp’n to Defendants’ Motion to Dismiss at 19 (ECF No. 17)) But their more recent brief and their reply in the class certification pleadings appear to go much further: “the ADA requires Defendants to
16 Defendants disagree with Plaintiffs that the burden shifts to Defendants to dem onstrate that refusing a requested accommodation is “necessary for budgetary reasons,” (Opp’n at 23) particularly when, unlike in Olmstead, the State is not raising an exclusively cost-based defense.
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allow persons who need m ore than 32 hours of personal care services in order to avoid institutionalization to receive those services.” (Opp’n at 27; Pls.’ Repl y to Defs.’ Memorandu m in Opp’n to Class Certification at 3 (ECF No. 33)) In any event, Plaintiffs fail to offer any principled reason why capping LT-PCS at 32 hours discriminates against individuals who need more than 32 hours while capping L T-PCS at 42 hours does not discriminate against individuals who need more.
At other points in their brie fing, Plaintiffs describe their proposed m odification a third way: “The m odification that Plaintiffs propose is that the y, and others in the class, be permitted to retain their hours of LT-PCS, which th ey have already been receiving, to the extent that the receipt of those hours of service is n ecessary to prevent their institutionalization.” (Opp’n at 31) Presumably, this means that the State will never need to provide up to 42 hours of services to individuals currently receiving less. But this is not a passable description of the relief Plaintiffs seek, and Plaintiffs provide no just ification for why indivi duals who have been receiving LT-PCS can continue to receive se rvices in excess of 32 hours while the cap presumably could be ap plied to new enrollees. (In fact, Medicaid rules on comparability would generally prohibit such a distinction.)
Plaintiffs insist that they “are not seek ing to enjoin r eductions in th e LT-PCS program to all recipients in the LT-PCS program—only those reductions to people who will be put at risk o f unnecessary institutionalization by the reduction.” (Opp’n at 27) This statem ent is meaningless. All LT-PCS recipients, by definition, must meet a nursing facility level of care and must satisfy additional factors showing that they have an im mediate need for personal care assistance. See La. Admin. Code tit. 50, § 12905, 30 La. Reg. 2831, 2831-32 (Dec. 2004); Opp’n at 17 (quoting id.). All are “at risk” of nursing home admission.
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Under Olmstead, Plaintiffs can succeed only if the relief they seek “can be
reasonably accommodated, taking into account the re sources available to the State and the needs
of others with . . . disabilities.” 527 U.S. at 587. Plaintiffs have not m ade the required showing
that the ho urs of care they s eek is a reason able accommodation in light of “the resources
available” and “the needs of others.”
B. The State Maintains a Comprehensive and Effectively Working Plan to Move Individuals from Nursing Facilities to the Community. The Olmstead Court explained that the “reason able-modifications standard” has
been met if the State maintains “a comprehensive, effectively working plan for placing qualified
persons with . . . disabilities in les s restrictive settings, a nd a waitin g list that moved at a
reasonable pace not controlled by the State’s en deavors to keep its institutions fully populated.”
527 U.S. at 605-06. Louisiana’s HCBS programs, take n as a whole, clearly satisfy these criteria.
Even Plaintiffs’ expert witness recognizes that:
Louisiana has made substantial inroads in making LTC [long-term care] services m ore available in community settings and in reducing reliance on institu tional services. Expanding HCBS, primarily through the creation and expansion of the state personal care plan (LT-PCS), appears to ha ve been accompanied by a larg e reduction in the institutionalized population in the state, with declines exceeding both the national average and the other states in the South Central region. Pls.’ Exh. 25, Declaration of H. Stephen Kaye, at ¶16 (ECF No. 38-3, page 411 of 455). 1. Louisiana has achieved and co ntinues to achieve great success in
providing alternatives to institutionalization. In confirming that a State has a “com prehensive, effectively working plan” that
provides a defense under Olmstead, appellate courts have looked to whether the State’s
“commitment to deinstitutionalization” is “genuine, comprehensive, and reasonable.” Sanchez v.
Johnson, 416 F.3d 1051, 1067 (9th Cir. 2005). This test re quires looking primarily at the State’s
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past efforts at de institutionalization “(i.e., [whether] it has dem onstrated a comm itment to comply with the ADA and RA).” Pa. Protection & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare , 402 F.3d 374, 381 (3d Cir. 2005). In som e cases, th e court also looks to whether the State remains committed to deinstitutionalization going forward. See, e.g., Sanchez, 416 F.3d at 1067. But see Braddock, 427 F.3d at 621 (affirm ing summary judgment in favor of the S tate without such analysis).17
State Medicaid program s are constant ly evolving, and policym akers must sometimes respond to unforeseen circum stances. Courts therefore view the S tate’s efforts at deinstitutionalization in their broader historical context. See, e.g., Braddock, 427 F.3d at 621 (considering developments since 1983); Sanchez, 416 F.3d at 1067 (considering developm ents since 1991). Additionally, “[i]t is of central importance . . . that courts apply [Olmstead] . . . with appropriate deference to the program f unding decisions of state policym akers.” Olmstead, 527 U.S. at 610 (Kennedy, J., concurring).
The decisions in Braddock and Sanchez are ins tructive. In both cases, plain tiffs who were currently institutionalized (or suing on behalf of institutionalized persons) brought suit under Olmstead, and the court of appeals af firmed the district court’s entry of summ ary judgment in favor of the State based on its “co mprehensive, effectively working plan” for deinstitutionalization. In both cases, the state maintained a waiver p rogram but (apparently) no state Medicaid plan service that could meet the plaintiffs’ needs.
17 The Third C ircuit has said that the Sta te must meet only a “minimal burden” in demonstrating that its past progress will continue. Pa. Protection & Advocacy, 402 F.3d at 382. Nevertheless, the court has held in two different cases that a State has not met its burden and has required the State to make a very specific showing of its future plans. See id. at 383-85; see also Frederick II, 422 F.3d 151; Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487 ( 3d Cir. 2004). All of these cas es, however, involved a Stat e’s efforts to reduce the p opulation of a single state-run instituti on. When, as in this case , a State’s entire HCBS program is at issue, it is neither practical nor possible to require a comparable showing.
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In Braddock, the cou rt of appeals noted that the State’s HCBS program was “substantial in size” at 10,000 people; that the S tate’s waiver program was full, with slots being filled as they opened up; that the H CBS program had increased from 1,227 slots to 9,977 slots from 1983 to 1998; that the state budget for HCBS “more than doubled” from 1994 to 2001; that the budget for institutional prog rams “remained constant” from 1994 to 2001; and that the institutionalized population declined by 20% from 1994 to 2001. See Braddock, 427 F.3d at 621.18
In Sanchez, the court of appeals affirm ed the entry of summary judgm ent based on evidence that the HCBS population in creased by 55% between 1991 and 2001; that expenditures on HCBS increased by 196% between 1991 and 2001; that the State had reduced its institutionalized population by 20% between 1996 a nd 2000; that the State had applied for m ore waiver slots in the f uture; that the State had budgeted for the creation of new HCBS f acilities; and that th e State exp ected to clo se at leas t one institution within the next tw o years. See Sanchez, 416 F.3d at 1067.
With respect to almost every v ariable, Louisiana’s programs are com parable to those at issue in these two cases. The St ate’s HCBS population in SFY 2010 was 18,215. SUF ¶10. Both the EDA and ADHC waivers are full, and slots are offered, as they become available, first to individuals in nursing facilities and then to individuals already in the com munity. SUF ¶¶59-63, 91-95. The HCBS population increas ed by 1668% between SFY 2000 a nd SFY 2010 and by 224% between SFY 2005 and SFY 2010; meanwhile, the LT-PCS population alone increased by 777% between SFYs 2005 and 2010. SUF ¶29. The State’s expenditures on HCBS
18 The court al so noted that the current HCBS-to-institutional population ratio was 10:1. See Braddock, 427 F.3d at 621. The cou rt did not state how that ratio had changed in the past or how many of the institutionalized persons were qualified for community-based care.
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grew by over 250% between SFYs 2005 and 2010, and its expenditures on LT-PCS grew by over

600%. SUF ¶35. These num bers indicate that paym ents to providers of HCBS gene rally and to

LT-PCS providers in particular gr ew faster than payments to private providers of any other

Medicaid service over the sam e period. See Second Decl. of Hugh R. Eley, att. C. A dditionally,

between SFYs 2000 and 2010, per capita expenditure s on private nursing facilities decreased

(once adjusted for inflation), Pls.’ Exh. 25, Declaration of H. Stephen Kaye, at ¶12 (ECF No. 38-

3, page 407 of 455), and expenditures on the S tate’s two public inst itutions that provide skilled

nursing services remained roughly the same (without any adjustment for inflation), Second Decl.

of Hugh R. Eley, att C. Over th e same period, the population of priv ate nursing facilities in the

State dropped by 15%. SUF ¶14.

Plaintiffs’ own expert witness acknowledge s that Louisian a has been successful

relative to other States. Professor H. Stephen Kaye states that Louisiana’s expenditures on HCBS

“increased sharply” between 2004 and 2009 and that, “[b]y 2008, Louisiana’s per-capita HCBS

expenditure ($72) had exceeded that of the re mainder of its region ( $56), and by 20 09 ($84), it

was approaching the U.S. average ($91).” Pls.’ Exh. 25, Declaration of H. Stephen Kaye, at ¶9

(ECF No. 38-3, page 404 of 455). This trend

reflected comparable improvement in the

proportion of long term care spending devoted to HCBS, with Loui siana besting the other South Central states in 2009 and approaching the national average. See id. at ¶10 (page 405).19

19 On at least one point, Plaintiffs misrepresent their expert’s evidence. Plaintiffs say Louisiana’s HCBS spending has “declined sh arply” since 2009 “so that it is now below both the national and the regional average.” (Opp’n at 26) As Prof. Kaye’ s affidavit clearly explains, however, “for other states, data for 2010 and 2011 are not available, and the dotted lines [ on his graphs] indicate linear projections based on expenditures for 2005-2009.” Pls.’ Exh. 25, Declaration of H. Stephen Kay e, at ¶8 (ECF No. 38-3, page 404 of 455). No record evidence shows how the y responded to the financial crises all States have faced since 2008.

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Louisiana is also working to ensure that these successes continue into the future. The State expects that the LT-PCS program will expand rapidly due to the aging po pulation and changes to Medica id eligibility rules. SUF ¶3 1. The State is also currently overseeing the expansion of the ADHC program into currently under-served areas: Nearly a dozen new facilities began accepting Medicaid since October,20 and 22 facilities have applications pending. SUF ¶98. Louisiana also recently designed a “Community Choice” waiver tha t will replac e the EDA waiver; the new program will off er recipients a more comprehensive menu of services and will allow them greater flexibility to self-dir ect their care. S UF ¶¶105-108. The PACE program, which started in 2008, continues to enroll new recipients in Ba ton Rouge and New Orleans and to provide services without a waiting list. SUF ¶¶112-113. The State is currently awaiting federal approval of a new AR C waiver that will create 200 new waiver slots, SUF ¶116, and recen t changes to the EDA Registry made available approximately 75 slots that were previously going unused, SUF ¶¶114-115. 21 Meanwhile, the State has successfully applied for a grant under th e federal Money Follows the Per son program; it is now using th ese resources to iden tify individuals in nursing facilities who want to leave and th en to help them transition to the community. SUF ¶¶99-100. And the State has recen tly initiated multiple programs designed to close nursing facilities and eliminate nursing facility beds. SUF ¶¶117-123.
In sum, the State operates a com prehensive, effectively working plan to provide alternatives to nurs ing facilities, and it rem ains committed to ensu ring that its pas t successes
20 According to Plaintiffs, there were on ly 27 ADHC facilities that accepted M edicaid in October 2010. (Opp’n at 16) As of March, the number was 38. SUF ¶98. 21 There were previously 150 slots in the EDA waiver set aside for individuals with ALS. See La. Admin. Code tit. 50, § 8105(C), 35 La. Reg. 2 447, 2447 (Nov. 2009). DHH r ecently reduced the set-aside to 75 slots, making the 75 previously unfilled slots available for general use. SUF ¶115.
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continue in the f uture. The “reque sted relief would require [the court] to dis rupt this working plan and to restric t impermissibly the leeway that [the State] is permitted in its oper ation of . . . services under Olmstead.” Sanchez, 416 F.3d at 1068. As one court observed:
Although more can alw ays be done, th e reality is that states m ust make difficult decisions when alloca ting necessarily limited resources. Neither the ADA nor the RA require[s] states to raise, appropriate, and spend whatev er amount is necessary to immediately afford all qualif ied disabled persons communitybased services . . . . Bryson v. Stephen, 2006 WL 2805238, at *5 (D.N.H. Sept. 29, 2006). 2. None of Plaintiffs’ Three Counterarguments Has Merit. Plaintiffs point to “three reasons” (O pp’n at 34) they believe that Louisiana lacks a “comprehensive, effectively worki ng plan” of the kind described in Olmstead. In each cas e, Plaintiffs are wrong on the law. 1. Plaintiffs m ainly argue (Opp’n at 33- 36) that Louisiana has not published a document that lays ou t with suf ficient specificity how the State plans to keep th e individual plaintiffs from entering nursing homes. Plaintiffs note that the State h as published two documents outlining action steps designed to faci litate community placements for individu als who would otherwise require institutional care—the Plan for Immediate Action (2005) and Louisiana’s Plan for Choice in Long-Term Care (2007)—and since updated them several times. But Plaintiffs argue that these docum ents are not sufficiently “specific” to support the State’s defense. Plaintiffs’ argument rests on two unsupported legal assumptions, neither of which is correct. Plaintiffs’ first mistake is to assum e that any particular docum ent or documents must set forth the State’s plan for providing community-based services. Plaintiffs’ second mistake is to
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assume that because Plaintiffs are cu rrently in the community, the State can establis h its defense only if it has developed a plan to keep the individual plaintiffs out of nursing facilities.
Plaintiffs argue that the Plan for Immediate Action and Plan for Choice in LongTerm Care “cannot serve as a defense to claim s of unjustified institutionalization” (Opp’n at 36) because these docum ents are not sufficiently de tailed, and Plaintiffs list several perceived deficiencies. The problem with this argument is that the State’s defense can succeed without any written plan at all. The “plan” referenced in Olmstead comprises “the range of services that a state already provides.” Disability Advocates, Inc. v. Paterson , 653 F. Supp. 2d 184, 268 (E.D.N.Y. 2009); see also id. at 269-70 (noting that the St ate has “no single docum ent constituting an ‘Olmstead plan’” but continuing on to review “the steps Defendants have taken and plan to take to enable Adult Home residents to receive services in more integrated settings”).
Plaintiffs read the Thir d Circuit’s decision in Frederick L. v. Department of Public Welfare (Frederick II) , 422 F.3d 151 (3d Cir. 2005), to require the State to develop a written document setting forth “reasonably specific and measurable” benchmarks “for which [the state] may be held accountable.” (Opp’n at 35). But that cannot be what the Third Circuit m eant in Frederick II because in a p rior appeal in the sam e case the court said, “The issue is no t whether there is a piece of paper that ref lects that the re will be ongoing progress toward community placement.” Frederick I, 364 F.3d at 500. And other circ uits have rejected such burdensome oversight. See, e.g., Bruggeman ex rel Bruggeman v. Blagojevich , 324 F.3d 906, 913 (7th Cir. 2003) (“The purpose of the [‘integra tion mandate’] is not to constitute the federal courts the supervisors of the care and treatment of disabled persons.”).
But Frederick II is beside the point for another reason, and that brings us to Plaintiffs’ second mistake. At issue in Frederick II was whether the State had a com prehensive,
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effectively working plan for deinstitutionalizing individuals presently isolated in institutions. See Frederick II, 422 F.3d at 153-54. Not only that, Frederick II involved whether the State was adequately working to discharge “long-term mental health patients” from a particular state-run hospital. Id. It was in that con text that the Third Circuit developed the standards by which it would judge the State’s plan for deinstitutionalization. The instant case doe s not invo lve deinstitutionalization of individuals presently in an institutional setting, and it does not involve a single state institution. It makes little sense to apply the criteria developed by the Third Circuit to a case like this one, wh ere the plaintiffs are no t currently institutionalized and wh ere the case involves the comprehensiveness of the State’s HCBS program as a whole.
Plaintiffs cite the unpublished decision in Haddad v. Arnold, No. 10-00414 (M.D. Fla. July 9, 2010) (ECF. No. 49), for the p roposition that the State’s plan m ust “address the effectiveness of the particu lar program available to the plaintiff,” even when the plaintiff is currently living in the community. (Opp’n at 36) Haddad is an unclear opinion that m ay or may not stand for that proposition. The Haddad court does seem to assum e that, when the plaintiff is currently in the community, the qu estion is whet her the State has “an efficient co mprehensive plan to avoid institutionalization,” slip op. at 35, and the cour t did appear particularly concerned with how long the plaintiff would need to wait to receive waiver services if the plaintiff were not in an institution, see id. at 34-35.
Haddad is both wrong and distingu ishable. The result of Haddad, particularly when combined with Frederick II, is to m ake it more dif ficult for individuals who are presently confined in institutions to succeed on an Olmstead claim than it is for indiv iduals who are already receiving HCBS. When the plaintiff is institutionalized, the State will need to show only that it h as HCBS program s that will allow the plaintiff and others similarly situated to le ave
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institutions in a reasonable tim e frame. See Olmstead, 527 U.S. at 606; Sanchez, 416 F.3d at 1068 (“Olmstead does not require the immediate state-wide deinstitutionalization of all eligible … disabled persons”). Applied literally, Haddad would appear to give those in the comm unity the greater right of avoiding institutionalization a ltogether. This cannot be correct. In any event, Haddad is dif ferent from this case. In Haddad, the State did not present any evidence that its institutionalized population had steadily declined. Haddad, slip op. at 35. In the case of Louisiana, the evidence is substantial and undisputed.
2. Although Plaintiffs also contend (Opp’n at 36-37) that the State’s comprehensive plan is not “effectively working,” their argument is probably better understood as a complaint that the waiting lists for the ADHC and EDA waivers do not move at a “reasonable pace,” Olmstead, 527 U.S. at 606.
As discussed above, Plaintiffs would alrea dy have received an offer for a slot in the ADHC program if they had requested one wh en they filed their Co mplaint, and nothing prevented them from requesting an offer earlier.
Regarding the EDA wa iver, Plaintiffs ar e wrong to focus on the length of the waiting list for individuals who live in the community. W hen the Olmstead Court said tha t a State’s compliance with the ADA m ay turn on wh ether it has “a waiting list that moved at a reasonable pace,” 527 U.S. at 606, it was obviously talking about a waiting list for individuals (like the Olmstead plaintiffs) who were waitin g to leave an institution. See id. (“It is reasonable for the State to ask som eone to wait until a com munity placement is available.”). And Plaintiffs are not well positioned to challenge the relatively short length-of-stay requirem ent for individuals who are in nursing ho mes for two reasons. First, Plaintiffs claim is that the ADA requires the State to provide them with services to avoid institutionalization; the State’s policies
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on moving individuals out of in stitutions, though certainly part of the State’s defense under Olmstead, are not being challenged in this action. Second, Plaintiffs are represented by an organization that agre ed to th e policy that m ade the wait for EDA services long er than it was previously. SUF ¶¶77-80.
As to whether the State’s HCBS progra ms are “effectively working,” the proper focus is on the State’s dem onstrated success in providing hom e- and community-based alternatives to institutions. See, e.g., Braddock, 427 F.3d at 620 (“So long as states are genuinely and effectively in the process of deinstitutiona lizing disabled persons ‘with an even hand,’ we will not interfere.” ). Louisiana’s accomplishments over the last decade are rem arkable, and it cannot fairly be said that the system is not “effectively working.”
3. Finally, Plaintiffs argue (Opp’n at 37) that Defendants cannot rely on the Plan for Immediate Action and Plan for Choice in Long-Term Care because those documents did not contemplate the reduction in LT-PCS services to 32-hours per week or va rious recent budgetary adjustments. Again Plaintiffs m isunderstand the St ate’s defense, which is not pinned solely to these particular documents. In any event, the S tate can hardly be faulted for not foreseeing the explosion of LT-PCS costs or the recession that amplified the need to control those costs.
Moreover, Plaintiffs cite no authority for their argument that a State cannot reduce services without first declaring it s intent to do so in a policy pa per that (if States are held to Plaintiffs’ standards) must describe the State’s entire HCBS program down to the la st detail. To the extent that cou rts have addressed the is sue, they have concluded that once a State has a deinstitutionalization program in pl ace, “Olmstead does not require . . . that a State’s plan be always and in all cases successful.” Sanchez, 416 F.3d at 1068; cf. Frederick I, 364 F.3d at 496
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(suggesting that the responsible agency’s “unsuccessful attem pts at fund procurem ent through the Governor’s budget” weighed in its favor).
More significant are th e array of HCBS programs the State continues to m ake available and the State ’s demonstrated commitment to offering elderly and disabled adults alternatives to institutional ca re. As discussed above, over the last decade Louisiana has seen considerable accomplishments in expanding the HCBS options for its diverse pop ulation of elderly and disabled adults. The dram atic growth in the LT-PCS program and the financial difficulties of the las t two-and-a-half years have pres ented some budgetary ob stacles, but Defendants have managed to overcome them to serve a population that is increasing every single month.
C. The DOJ’s “Most Integrated Setting” Regulation Does Not Create A Right To Home And Community-Based Services Beyond What Olmstead Requires. Plaintiffs contend that the ADA requires States to provide an individual with
disabilities whatever level of serv ices is necessary for that individual to reside outside a nursing home. Although their more recent brief (ECF No. 38) la cks any substantial discussion of the statutory basis for this c laim, their earlier brief made clear that their argum ent is based on what Plaintiffs call the “integration mandate.” Opp’n to Defendants’ Motion to Dism iss at 11-13, 1518, 21 & nn.4-5, 8 (ECF No. 17). This “integrati on mandate” is a rule prom ulgated by the Department of Justice under Section 12134 of the ADA. See 28 C.F.R. § 35.130(d); see also Olmstead, 527 U.S. at 592 (labeling this the “integration regulation” ). The rule provides: “A public entity shall adm inister services, programs, and activities in th e most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
Nothing in the text of the ADA itself contains the requirement that States administer services in the most integrated setting appropriate. What the ADA does contain is a
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prohibition of discrimination by reason of an individual’s disability. In Olmstead, the Court held

that the “[u]njustified isolation” of individuals with disabilities qualified as “discrimination”

within the meaning of ADA. 527 U.S. at 597. The Court mentioned the integration regulation,

see id. at 592-93, 596, 602, but it was not the basis for the decision.

Whatever the force of the integration regulation in cases not involving claims of

“unjustified isolation,” in a case such as this one, the regulation does not provide a basis for the

Court to order relief not required by Olmstead itself, because a regulation cannot be the basis for

a private cause of action to enforce requirements not set forth in the statute itself, at least in the

absence of another statute expressly authorizing such an action. See Alexander v. Sandoval, 532

U.S. 275 (2001); Lonberg v. City of Riverside, 571 F.3d 846, 851-52 (9th Cir. 2009) (holding

that private litigants cannot sue to enforce an ADA regulation that imposes obligations not found

in the statute). Nor can the Department of Justice itself authorize private actions to enforce the

integration regulation. See Sandoval, 532 U.S. at 291-93 (“[I]t is most certainly incorrect to say

that language in a regulation can conjure up a private cause of action that has not been authorized

by Congress.”).

In this case, Olmstead, not the “integration regulation,” obligations under the ADA.22

governs the State’s

22 The anal ysis under the Rehabilitation Act is parallel. Substantively, the statute provi des in part: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disa bility, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). The sa me section directs the head of each age ncy to “promulg ate such regulations as may be necessary to carry out,” id., the statute’ s substantive command. And another sect ion confers a private right of action “to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of suc h assistance under section 794 of this title,” id. § 794a(a)(2) (emphasis added), but says nothing of action or inaction under the regulations.

For this reason, Plaintiffs’ argument that DHH

has waived its sovereign immunity under the

Rehabilitation Act by accepting federal funds m ust be rejected. The provision on which plaintiffs rely

(continued…)

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VI. The Matters That Plaintiffs Claim To Be In Dispute Are Not Material To The ADA Inquiry.
Plaintiffs argue (Opp’n 37-40) that there is a genuine dispute as to whether it
would be “inequitable” to exem pt them from the 32-hour cap on LT-PCS and contend that this
question can be resolved only at a trial addressing a slew of fact ual questions about the needs of
individuals with disabilities,23 the services prov ided for them in Louisiana and elsewh ere,24 and
how those services are funded. 25 Many of these q uestions are complicated or abstract, some are
applies only to “suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . . or the provisions of any other Federal statute prohibiting discrimination.” 42 U.S.C. § 2000d-7(a)(1) (emphasis added). 23 Fact issues identified b y plaintiffs include: How many hours of care people eligible for LT-PCS might actually need to live safely in the community (Opp’n at 19); How long it takes people with di sabilities to perform ADLs (Opp’n at 19); Whether unmet need for home care” is “correlate[d]” with “increased risk of institutionalization” (Opp’n at 19); Whether the 32-hour cap on LT-PCS puts people at risk of needing nursing facility care (Opp’n at 28); How people wh o currently live in the community can manage to stay there with no more than 32 hours of LT-PCS (Opp’n at 34-35). 24 Plaintiffs inquire: How Louisiana’s eligibilit y criteria for LT-PCS co mpare with the criteria used in other States, including w hether other States “require a nursing facility level of care,” whether those States’ nursing facility level of care is th e same as Louisiana’s, whether other States require all recipients to show “imminent risk of institutionalization,” whether those States define that risk t he same way Louisiana does (Opp’n at 21, 32); Whe ther other States use waiver or non-waiver services as their main program for personal care services (Op p’n at 22, 32); How waiting lists for waiver services in Louisiana compare with waiting lists in other States (Opp’n at 23); What is the number of waiver and non-waiver recipients in other States (Opp’n at 22); Whether o ther States providing fewer hours of services than Louisiana are in compliance with the ADA (Opp’n at 32). 25 Issues raised by Plaintiffs include: How much Louisiana spends on waiver serv ices compared to others States (Opp’n at 22, 32); Whether a reduction in L T-PCS services is “necessary for budgetary reasons” (Opp’n at 23); Whether past increases in t he per diem reimbursement rate for nursing fa cilities was necessary to continue providing nursing facility services to those who need t hem (Opp’n at 23); Why expenditures on nursing facilities have increased over the last decade (Opp’ n at 24); Why Louisiana has reduced its reimbursement rate for LT-PCS by 3.67% since SFY 2006 (Opp’n at 24); What is “the cost of providing services in excess of the 32-hour cap onl y to those individuals who face a risk of institutionalization as a result of the cap” (Opp’ n at 24); How much would it cost for the plaintiff class to be placed in institutions (O pp’n at 38); Whether the State accurately calculated how m uch it would save from reducing the cap on LT-PCS (O pp’n at 37-38); How much less the St ate would have saved if it waived the 32-hour cap f or individuals “at risk of institutionalization” (Opp’n at 38); W hat is “the budgetary effect of the 32-hour cap” an d how this figure should be calculated (Opp’n at 24); Whether the 32-hour cap will increase “hospitalization or emergency room Medicaid expenditures” and, if so, by how much (Opp’n at 25); How do Louisiana’s per capita expenditures on HCBS and nursing facilities compare
(continued…)
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inherently value-laden, and others m ay be unanswerable. But none is m aterial to whether Louisiana has discriminated in its administration of its HCBS programs or whether the State has in place a com prehensive, effectively worki ng plan for providing alternatives to nursing facilities.
The Court should not accept Plaintif fs’ invitation to explore the intricacies of the State’s Medicaid funding in order to determ ine whether limiting LT-PCS services is “equitable,” and there is no need to consid er all of the expenditure-relate d issues raised by Plaintiffs. Defendants’ argument here is that the State al ready maintains a com prehensive and successful HCBS plan that provides thousands of individuals similarly situated to Plaintiffs with community care. Under Olmstead, that is sufficient. See 527 U.S. at 605-06; cf. Pa. Protection & Advocacy , 402 F.3d at 381-82 (“When an agency has implemented a sufficient compliance plan (i.e., when it has dem onstrated a co mmitment to com ply with the ADA and R A), we m ust be wary of judicial mandates that could thwart or underm ine the agency’s authority to carry out that plan as it sees fit.”).
“Throughout Olmstead, the Justices’ cautious reluctance to question State funding decisions is apparent,” Ligas v. Maram, No. 05C4331, 2010 W L 1418583, at *2 n.5 (N.D. Ill. Apr. 7, 2010) (No. 05-4331), and the standardless a nd broad-ranging inquiry Plaintiffs ask the Court to undertake is simply not appropriate. “[T]he judiciary is not well-suited to superintend the internal budgetary decisi ons of [a state agency],” Frederick I, 364 F.3d at 498, and “[t]he purpose of the [‘integration mandate’] is not to constitute the federal courts the supervisors of the care and treatm ent of disabled persons.” Bruggeman, 324 F.3d at 913. Plenary review of a
with those of other States (Opp’n at 25-26); How mu ch it would cost to provide “service s necessary to sustain [individuals who need more than 32 hours of LT-PCS] in the community” (Opp’n at 35).
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State’s expenditures on its entire Medicaid program for elderly an d disabled adults is highly burdensome. Such an unm anageable inquiry is not warranted whenever an individual currently receiving services in the community is shown to be at risk of a temporary institutional placement, and Plaintiffs cite no authorit y for the relevance of the innu merable budgetary considerations they think have bearing on the State’s defense. Cf. Olmstead, 527 U.S. at 610 (Kennedy, J., concurring) (noting that because of “the federa lism costs inherent in referring state decisions regarding . . . the allocation of re sources to the reviewing authority of the federal courts” “[i]t is of central importance . . . that courts apply [ Olmstead] . . . with appropriate deference to the program funding decisions of state policym akers”). Appellate courts have no t required this burdensome inquiry in cases where they have a ffirmed the entry of su mmary judgment based on a State’s comprehensive, effectively working plan. See, e.g., Braddock, 427 F.3d 615; Sanchez, 416 F.3d 1051. VII. Plaintiffs Have Abandoned Their Remaining Claims.
Plaintiffs’ “criteria and methods” ADA claim should be dismissed with prejudice as abandoned; their Third Claim for Relief should be dismissed without prejudice as unripe.
The Complaint included as an altern ative basis for relief under the ADA allegations that “Defendants have utilized crit eria and m ethods of adm inistration that subject Plaintiffs to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to assess properly the services and s upports that would enable Plaintiffs to rem ain in the community and (2) denying Plaintiffs access to M edicaid-covered services that will m eet their needs in the community . . . .” Compl. ¶107 (ADA claim); see also id. ¶110 (Rehabilitation Act claim). The Complaint also described the evolution from 2003 to the present of Defendants’ methodology for allocating hours among LT-PCS recipients. Id. ¶¶31-34. Plaintiffs also discuss the allocation m ethodology in th eir opposition brief. (O pp’n at 18-19) At the sam e time,
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Plaintiffs now maintain that they “are not challenging the ch ange in allocation m ethodology in this case.” (Opp’n at 19 n.105)
Because the Complaint clearly incorporated allegations that the State’s allocation methodology discriminated in som e fashion and because Plaintiffs have expressly abandoned that theory, their “criteria and methods” claims should be dismissed with prejudice. See Michel v. Saint-Gobain Containers, Inc. , Civ. A, 05-207, 2005 W L 3339568, at *2 (W .D. La. Dec. 8, 2005) (unpublished) (dismissing with prejudice claims abandoned by the plaintiff); Woodland v. Nalco Chem. Co. , Civ. A 01-3337, 2004 WL 253442, at *1 (E.D. La. Feb. 10, 2004) (unpublished) (same), aff’d, 114 Fed. App’x 150, 2004 WL 2722523 (5th Cir. Nov. 22, 2004).
Plaintiffs concede that all of their claim s not founded on the ADA or the Rehabilitation Act “may be premature.” Opp’n to Defendants’ Motion to Dismiss at 22. This is in effect an acknowledgem ent that the claim s are unripe and that the Cour t lacks jurisdiction to hear them. See Roark & Hardee L P v. City o f Austin, 522 F.3d 533, 544 n.12 (5th Cir. 2008). The Court should therefore dismiss Plaintiffs’ Third Claim for Relief under Rule 12(b)(1). VIII. Conclusion
For the foregoing reasons, Defendants resp ectfully request that the Co urt enter judgment in their favor on Plaintiffs’ First and Second Claims for Relief and dismiss Plaintiffs’ Third Claim for Relief for lack of jurisdiction.
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Dated: March 30, 2011

Respectfully submitted,
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232
Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291 Counsel for Defendants

40 Case 3:10-cv-00635-JJB -SCR Document 39 03/30/11 Page 45 of 46

CERTIFICATE OF SERVICE I certify on this 30th day of March, 2011, that a true and correct copy of the foregoing Defendants’ Memorandum in Opposi tion to Class Certification was filed electronically using the CM/ECF system . Notice of this filing will be sent via oper ation of the Court’s electronic filing system to the following: Nell Hahn nhahn@advocacyla.org Stephen F. Gold stevegoldada@cs.com Bruce Vignery bvignery@aarp.org Kenneth Zeller kzeller@aarp.org Counsel for Plaintiffs
/s/ Matthew Berns Matthew Berns
Case 3:10-cv-00635-JJB -SCR Document 39 03/30/11 Page 46 of 46

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

HELEN PITTS, KENNETH ROMAN,

) Civil Action No. 3:10-cv-00635-JJB-SCR

DENISE HODGES, and RICKII AINEY, on )

behalf of themselves and all others similarly )

situated,

)

Plaintiffs

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT

Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232

Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291
Counsel for Defendants
Dated: March 30, 2011

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TABLE OF CONTENTS I. Background ......................................................................................................................... 4 II. Louisiana’s HCBS Programs Have Grown Continuously for a Decade............................. 5
A. The Number of HCBS Recipients Has Steadily Increased While the Number of Nursing Facility Residents Has Steadily Dropped. .............................. 5
B. Expenditures on HCBS Have Generally Grown at a Faster Pace than Expenditures on Nursing Facilities and Other Programs........................................ 6
III. Long-Term Personal Care Services (“LT-PCS”)................................................................ 7 A. The LT-PCS Program Has Expanded Dramatically Since Its Inception. ............... 7 B. Reductions to the LT-PCS Service Cap Have Not Increased the Rate of Nursing Facility Admissions................................................................................... 8
IV. Elderly and Disabled Adults (“EDA”) Waiver................................................................... 9 V. Adult Day Health Care (“ADHC”) Waiver ...................................................................... 12 VI. Recent DHH Initiatives Have Helped Individuals Leave Nursing Facilities and
Have Allowed the State to Close Several Nursing Facilities Permanently. ..................... 14 A. Money Follows the Person.................................................................................... 14 B. Community Choice Waiver .................................................................................. 14 C. Program of All-Inclusive Care for the Elderly ..................................................... 15 D. 75 Newly Available Slots in the EDA Waiver ..................................................... 15 E. 200 Slots in the Pending Adult Residential Care Waiver ..................................... 16 F. Bed Buy-back Program......................................................................................... 16 G. Private Room Conversion ..................................................................................... 16
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LEGEND
For the purposes of Defendants’ Statement of Undisputed Facts in Support of the
Motion for Summary Judgment, the following abbreviations shall be used:
 “ADHC” means Adult Day Health Care  “CMS” means the Centers for Medicare & Medicaid Services  “DHH” means the Department of Health and Hospitals of the State of Louisiana  “EDA” means Elderly and Disabled Adults  “HCBS” means home- and community-based services  “LT-PCS” means Long-Term Personal Care Services  “OAAS” means the Office of Aging and Adult Services  “PACE” means the Program of All-Inclusive Care for the Elderly  “SFY” means state fiscal year. SFY 2011 began July 1, 2010 and ends June 30, 2011.  “Nursing facility” means private nursing facility.*  “First Eley Decl.” refers to the declaration of Hugh R. Eley, dated October 21, 2010 and
docketed at ECF No. 11-2.  “Second Eley Decl.” refers to the declaration of Hugh R. Eley, dated March 30, 2011 and
filed herewith.  “Eley Tr.” refers to the transcript of the deposition of Hugh R. Eley, taken by Plaintiffs’
counsel on February 23, 2011.  “Opp’n at __” refers to a page number in Plaintiffs’ Memorandum in Opposition to the
Motion for Summary Judgment, which is docketed at ECF No. 38.  “Abadie Decl.” refers to the declaration of Jeanne Abadie, dated January 25, 2011, and
docketed at ECF No. 33-7.  “Kaye Decl.” refers to Plaintiffs’ Exhibit 25, Declaration of H. Stephen Kaye, docketed
at ECF No. 38-3.
* Although the State operates two public nursing facilities serving approximately 250 individuals, those homes tend to serve very high needs patients who are hard to place in a private facility and whose needs likely could not be met in an HCBS option. Second Eley Decl. ¶30. Therefore, they are not included in the data below.
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Pursuant to Local Rule of Civil Procedure 56.1, Defendants Bruce Greenstein and

the Department of Health and Hospitals submit the following Statement of Undisputed Facts in

Support of the Motion for Summary Judgment.

UNDISPUTED FACTS

I. Background

Undisputed Fact 1. The Department of Health and Hospitals (“DHH”) is the
state agency responsible for the development and provision of health and medical services for the citizens of Louisiana, and it provides health and medical services for the uninsured and medically indigent citizens of the State.

Evidence La. Rev. Stat. Ann. § 36:251(B) (2010).

2. The Office of Aging and Adult Services (“OAAS”) is the agency within DHH responsible for programs related to the long-term care of the elderly and the protection and longterm care of persons with adult-onset disabilities.

La. Rev. Stat. Ann. § 36:258(F) (2010).

3. OAAS maintains several programs that serve recipients outside of institutional settings by providing home- and community-based services (“HCBS”) funded through the Medicaid program.

First Eley Decl. ¶7.

4. Louisiana currently makes personal care services available to individuals with adult-onset disabilities through four HCBS programs: the Elderly and Disabled Adult (“EDA”) waiver; the Adult Day Health Care (“ADHC”) waiver; the Long-Term Personal Care Services (“LT-PCS”) program; and the Program of All-Inclusive Care for the Elderly (“PACE”).

First Eley Decl. ¶7.

5. Pursuant to the Medicaid statute, Louisiana limits the number of recipients that can be served through the EDA and ADHC waivers at any given time, and these limits are approved by the federal Centers for Medicare & Medicaid Services (“CMS”).

First Eley Decl. ¶¶18, 25.

6. Because LT-PCS is a Medicaid state plan service, rather

First Eley Decl. ¶33.

than a waiver, the State cannot cap the number of recipients.

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II. Louisiana’s HCBS Programs Have Grown Continuously for a Decade.

A. The Number of HCBS Recipients Has Steadily Increased While the Number of Nursing Facility Residents Has Steadily Dropped.

Undisputed Fact

Evidence

7. It is the policy of DHH “to serve the greatest number of

Eley Tr. 181 (line 25) to 182

people that [it] can serve given the funding that is available.” (line 1).

8. In SFY 2000, only 1,030 individuals received HCBS, while Second Eley Decl. att. A. 34,727 individuals received nursing facility services.

9. In SFY 2000, approximately 97% of individuals receiving First Eley Decl. ¶9; Second Medicaid-funded long-term care obtained those services in a Eley Decl. att. A. nursing facility, while 3% received HCBS.

10. In SFY 2010, State Medicaid funds paid for 18,215 individuals to receive HCBS, while they paid for 29,392 individuals to receive nursing facility services.

Second Eley Decl. att. A.

11. In SFY 2010, approximately 62% of individuals receiving long-term care obtained those services in a nursing facility, while 38% received HCBS.

First Eley Decl. ¶9.

12. When monthly, as opposed to annual, populations are considered, the ratio of HCBS-to-institutional recipients more strongly favors HCBS; in June 2010, for example, 42% of long-term care recipients were being served in HCBS and 58% in institutions.

First Eley Decl. ¶9.

13. By SFY 2010, the HCBS population had increased by 1668% since SFY 2000 and by 224% since SFY 2005.

Second Eley Decl. att. A.

14. There were approximately 15% fewer recipients of nursing Second Eley Decl. att. A. facility services in SFY 2010 than in SFY 2000.

15. The number of individuals receiving HCBS in Louisiana has First Eley Decl. att. A;

increased every year since SFY 2000.

Second Eley Decl. att. A.

16. The number of individuals receiving nursing facility services Second Eley Decl. att. A. has decreased every year since SFY 2001 save one, following Hurricanes Katrina and Rita.

17. Louisiana has traditionally had the highest or nearly the highest number of nursing home beds per capita in the country.

Eley Tr. 27 (lines 1-12).

18. Now Louisiana has a nursing home occupancy rate lower Eley Tr. 31 (lines 19-21).

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than almost any other State.

19. Individuals who receive HCBS generally receive more oneon-one care than individuals in nursing facilities. Except for a few categories of individuals, the minimum requirement for direct care in a nursing facility is 2.35 hours per resident per day.

Second Eley Decl. ¶31.

B. Expenditures on HCBS Have Generally Grown at a Faster Pace than Expenditures on Nursing Facilities and Other Programs.

Undisputed Fact 20. In SFY 2000, expenditures for HCBS were $8,101,961,
while expenditures for nursing facilities were $503,992,717. Less than 2% of expenditures were on HCBS

Evidence Second Eley Decl. ¶4.

21. In SFY 2005, expenditures for HCBS were $79,613,310, Second Eley Decl. att. C. while expenditures for nursing facilities were $624,081,039. About 17% of expenditures were for HCBS.

22. In SFY 2010, expenditures for HCBS were $300,538,453, Second Eley Decl. att. C. while expenditures for nursing facilities were $737,529,166. About 29% of expenditures went to HCBS.

23. DHH expects HCBS expenditures for SFY 2011 to be $311,060,252.

Second Eley Decl. att. D.

24. Once adjusted for inflation, per capita expenditures for nursing facility services have declined since SFY 2000.

Kaye Decl. at ¶12.

25. Between SFYs 2005 and 2010, expenditures for HCBS increased by 277.5% while expenditures for nursing facilities increased by approximately 18%.

Second Eley Decl. att. C.

26. In the five-year period between SFY 2005 and SFY 2010, LT-PCS was the second-fastest growing line item in the State’s entire Medicaid budget. The only service for which expenditures grew faster—the public psychiatric free standing unit—saw all of its growth in SFY 2010, but its budget is only 25% of LT-PCS expenditures. In three of the five years, no service’s budget grew faster than LT-PCS’s.

Second Eley Decl. att. C.

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III. Long-Term Personal Care Services (“LT-PCS”)

A. The LT-PCS Program Has Expanded Dramatically Since Its Inception.

Undisputed Fact 27. In SFY 2005, Louisiana added the LT-PCS program to the
existing array of HCBS programs providing personal care services.

Evidence Eley Tr. 62 (line 22) to 63 (line 2); First Eley Decl. ¶35.

28. In SFY 2005, there were 1,402 individuals who received LT-PCS but no waiver services, and that number has increased every year since: to 2,939 in SFY 2006; to 5,421 in SFY 2007; to 7,536 in SFY 2008; to 9,216 in SFY 2009; and to 12,295 in SFY 2010.

Second Eley Decl. att. A.

29. The LT-PCS population grew by 777% between SFY 2005 Second Eley Decl. att. A. and SFY 2010.

30. By the end of February 2011, the State had served 12,571 LT-PCS recipients in SFY 2011.

Second Eley Decl. ¶6.

31. There is currently a net increase of approximately 130 LTPCS recipients every month, and DHH expects significant growth in the program due to the State’s aging population and changes in Medicaid’s eligibility rules.

Second Eley Decl. ¶6.

32. Until June 2010, participants in the EDA waiver received their personal care services through the LT-PCS program.

Eley Tr. 63 (line 19) to 66 (line 8).

33. Individuals who do not also receive EDA services can supplement their LT-PCS with ADHC services.

First Eley Decl. ¶26; Second Eley Decl. ¶13.

34. If individuals who also receive waiver services are included, then the LT-PCS program served 4,400 individuals in SFY 2005, 6,568 in SFY 2006, 8,625 in SFY 2007, 11,532 in SFY 2008, 14,166 in SFY 2009, and 17,533 in SFY 2010.

Second Eley Decl. att. A.

35. In SFY 2005, expenditures on the LT-PCS program totaled $33,519,293. Expenditures increased by 115.48% in SFY 2006 (to $72,226,870); by 67.76% in SFY 2007 (to $121,164,204); by 60.21% in SFY 2008 (to $194,115,778); and by another 25.02% in SFY 2009 (to $242,683,496). In SFY 2010, expenditures decreased by 2.09% (to $237,616,920).

Second Eley Decl. att. C.

36. DHH estimated that the 32-hour cap on LT-PCS will allow Eley Tr. 201 (lines 2-13). it to avoid new expenditures of $5 million annually in SFY

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2011 and $24 million annually in SFY 2012.

B. Reductions to the LT-PCS Service Cap Have Not Increased the Rate of Nursing Facility Admissions.

Undisputed Fact 37. From the inception of the LT-PCS program until March
2009, recipients could receive up to 56 hours of personal care services per week.

Evidence Eley Tr. 66 (lines 5-8).

38. Effective March 20, 2009, the 56-hour cap was reduced to 42 hours. Individuals who were already receiving LT-PCS before March 20 were able to continue receiving more than 42 hours per week until their next annual reassessment.

La. Admin. Code tit. 50, § 12915(A), 35 La. Reg. 401, 402 (Mar. 2009); Eley Tr. 59 (lines 5-20).

39. Prior to reducing the LT-PCS cap to 42 hours, DHH discussed the issue with class counsel in the Barthelemy litigation, including lead counsel in the Pitts case.

Second Eley Decl. ¶7.

40. The Barthelemy class counsel agreed to the reduction in the LT-PCS cap, and the change was incorporated into the Settlement Agreement.

Second Eley Decl. ¶7; Second Eley Decl. att. E.

41. Prior to the implementation of the 42-hour cap on LT-PCS, Second Eley Decl. ¶8. 18% of recipients received at least 42 hours of services.

42. There were 941 individuals who received more than 42 hours of LT-PCS per week prior to March 2009 who subsequently received fewer than 42 hours.

Second Eley Decl. ¶8.

43. In August 2010, OAAS reduced the service cap to 32 hours of LT-PCS per week.
44. The 32-hour service limitation took effect on September 5, 2010. Individuals who were already receiving LT-PCS before September 5 may continue receiving more than 32 hours per week until their next annual reassessment.

La. Admin. Code tit. 50, § 12915(A), 36 La. Reg. 1749, 1752 (Aug. 2010). First Eley Decl. att. E; 36 La. Reg. 1749, 1749 (Aug. 2010).

45. Prior to the implementation of the new 32-hour maximum, approximately 28% of LT-PCS recipients (approximately 3300 individuals) were receiving greater than 32 hours of services every week. These individuals will have their hours reduced upon their annual reassessment.

First Eley Decl. ¶37; Eley Tr. 161 (lines 1-3).

46. OAAS has collected data on the number of LT-PCS

First Eley Decl. ¶40; Second Eley Decl. ¶9.

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recipients who transitioned into nursing facilities since 2005.

47. The percentage of LT-PCS recipients transitioning to nursing facilities has decreased from 6% per quarter in October-December 2005, to 4% in January-March 2009, to 3% in July-September 2010.

Second Eley Decl. ¶10; Second Eley Decl. att. B.

48. There has been no observable increase in the percentage of LT-PCS recipients transitioning into nursing facilities since the cap on services was reduced to 42 hours per week.

Second Eley Decl. ¶10; Second Eley Decl. att. B.

49. In September-December 2010, 512 individuals who previously received greater than 32 hours of LT-PCS had their services reduced under the new rule.

Second Eley Decl. ¶11.

50. Only 2% of LT-PCS recipients transitioned into nursing facilities in October-December 2010.

Second Eley Decl. ¶11; Second Eley Decl. att. B.

51. Another 463 LT-PCS recipients had their services reduced Second Eley Decl. ¶12. pursuant to the 32-hour cap in January and February 2011.

52. The data on transitions of LT-PCS recipients into nursing facilities in January-March 2011 are not yet available.

Second Eley Decl. ¶12.

IV. Elderly and Disabled Adults (“EDA”) Waiver

Undisputed Fact 53. The Elderly and Disabled Adults (“EDA”) waiver is another
of Louisiana’s HCBS programs that provides long-term care to individuals with adult-onset disabilities.

Evidence First Eley Decl. ¶14-21.

54. EDA recipients are given a “budget” they can allocate toward a variety of services offered through the program.

First Eley Decl. ¶16.

55. The maximum EDA budget, which is currently about $40,046 annually, represents 120% of the average cost of nursing facility care.

First Eley Decl. ¶16; Eley Tr. 72 (lines 9-13); Opp’n at 14.

56. The maximum EDA budget “would certainly be adequate to Opp’n at 14. maintain the Plaintiffs and others like them at home, and prevent their having to enter an institution for care.”

57. Services available to EDA recipients currently include support coordination, transition intensive support coordination, environmental accessibility adaptation, personal assistance services, transition services, and ADHC.

La. Admin. Code tit. 50, § 8301, 37 La. Reg. 18, 19-20 (Jan. 2011).

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58. Personal assistance services is the combination in a single service of personal care services and companion care services.

Eley Tr. 72 (lines 14-24).

59. The EDA waiver is currently capped at 4,603 slots.

First Eley Decl. ¶18.

60. Because the EDA waiver is full, DHH maintains a “Request First Eley Decl. ¶18. for Services Registry” or “waiting list” for individuals who want EDA services.

61. Slots in the EDA waiver are offered first to applicants in certain priority groups and then according to the date they applied for the waiver.

First Eley Decl. ¶18.

62. Currently, three groups have priority for EDA slots: (1) individuals who are victims of abuse or neglect and who would require institutional placement to avoid further abuse and neglect unless they are enrolled in the waiver program; (2) individuals with Amyotrophic Lateral Sclerosis (Lou Gehrig’s disease); and (3) individuals who have been in a nursing facility for 90 consecutive days.

La. Admin. Code tit. 50, § 8105(B), 37 La. Reg. 18, 19 (Jan. 2011).

63. Individuals in any of the three groups with priority over LT- First Eley Decl. ¶18. PCS recipients are offered slots as they become available.

64. As of March 29, 2011, every individual on the EDA Registry who was in one of the high priority groups had already received an EDA offer.

Second Eley Decl. ¶23.

65. Once an EDA offer is extended, it takes an average of 60 to 90 days for services to begin—depending on the individual circumstances of the applicant—while the support coordinator meets with the individual and completes their evaluation, determines the recipient’s EDA budget, helps develop a comprehensive plan of care tailored to the individual’s needs and preferences, and helps find the recipient housing (if necessary).

Eley Tr. 88 (lines 3-8); Second Eley Decl. ¶24.

66. Individuals may qualify for a priority EDA offer due to a 90day stay in a nursing facility even if they have not forfeited their residence in the community while staying in the nursing facility.

Eley Tr. 87 (lines 6-11); Second Eley Decl. ¶22.

67. Individuals who have received a priority offer because they reside in a nursing facility are not be required to remain in the nursing facility if they wish to return home prior to the

Second Eley Decl. ¶22.

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commencement of EDA services

68. Until October 2010, EDA applicants who did not currently receive HCBS were given priority over those who were already receiving HCBS through other programs, including LT-PCS.

La. Admin. Code tit. 50, § 8105(B), 35 La. Reg. 2447, 2447 (Nov. 2009).

69. In October 2010, in connection with the reduction in the maximum number of hours from 42 to 32, DHH amended its regulations so that LT-PCS recipients would no longer be in a lower priority group than individuals who do not currently receive HCBS.

36 La. Reg. 2217, 2218 (Oct. 2010) (amending La. Admin. Code tit. 50, § 8105(B)); First Eley Decl. ¶19.

70. As of October 19, 2010, DHH was offering EDA waiver slots to individuals who were not currently receiving HCBS and who applied for a waiver by April 15, 2008, while LTPCS recipients who applied prior to that date remained on the Registry without an offer.

First Eley Decl. ¶20.

71. After revising the priority groups in October 2010, DHH

First Eley Decl. ¶20.

began offering EDA slots to LT-PCS recipients who applied

for the waiver before April 15, 2008.

72. DHH most recently offered EDA slots to LT-PCS recipients Second Eley Decl. ¶21. who applied for the waiver on or before November 30, 2007.

73. All four named plaintiffs are on the EDA Registry. Since the Pitts lawsuit was filed, two named plaintiffs (Helen Pitts and Denise Hodges) have been offered EDA slots, as has the only unnamed plaintiff identified in the pleadings (Cleo Lancaster).

Opp’n at 28 n.148; First Eley Decl. ¶21.

74. Until October 2010, individuals who were admitted to a

La. Admin. Code tit. 50,

nursing facility were given priority EDA offers regardless of § 8105(B)(2), 35 La. Reg.

how long they had stayed there.

2447, 2447 (Nov. 2009).

75. DHH adopted the rule limiting priority offers to individuals who have been in a nursing facility for 90 consecutive days to address a situation where some individuals were only in need of nursing home care for a short period (for example, for rehabilitation after a hospital stay), or were trying to avoid the waiting list by entering a nursing home for a brief stay and then returning home to wait for their EDA offer.

Eley Tr. 78 (line 20) to 82 (line 4); Second Eley Decl. att. G.

76. DHH concluded that 90 days was an appropriate duration for Eley Tr. 81 (line 12) to 83 the length-of-stay requirement because that is the standard (line 10); 42 U.S.C. § 1396a used by the federal government in the Money Follows the note, as amended, Patient

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Person Program to determine who is at risk of being a longterm resident of a nursing facility.
77. Before adopting the 90-day waiting period, DHH engaged in several discussions about a length-of-stay requirement with the HCBS Redesign Workgroup.
78. The HCBS Redesign Workgroup included officials from OAAS and several stakeholder advocacy groups—including the Advocacy Center—and was intended to solicit these groups’ input on changes to the State’s HCBS offerings.

Protection and Affordable Care Act, Pub. L. 111-148, § 2403, 124 Stat. 119, 304-05 (Mar. 23, 2010). Eley Tr. 78 (line 20) to 82 (line 4); Second Eley Decl. att. F; Second Eley Decl. att. G; Second Eley Decl. att. H. Decl. of Jeanne Abadie, at ¶2.

79. The consensus of the Workgroup was that DHH should revise its policy to adopt a length-of-stay requirement.
80. The Workgroup also reached a consensus that 90 days was an appropriate duration for the length-of-stay requirement.

Eley Tr. 81 (lines 20-25); Second Eley Decl. att. F; Second Eley Decl. att. H. Eley Tr. 81 (line 16) to 82 (line 4).

81. The number of EDA recipients grew steadily from 552 in SFY 2000 to 4,870 in SFY 2010.

Second Eley Decl. att. A.

82. Expenditures on the EDA waiver increased by 43% between Second Eley Decl. att. C. SFY 2005 and SFY 2010.

V. Adult Day Health Care (“ADHC”) Waiver
Undisputed Fact 83. ADHC services are a planned, diverse daily program of
individual services and group activities structured to enhance the recipient’s physical functioning and to provide mental stimulation.
84. ADHC services are provided at licensed facilities that are operational at least five hours per day on a regularly scheduled basis or as specified in the recipient’s plan of care.
85. ADHC facilities are required to provide recipients with transportation to and from the facility.
86. Helen Pitts lives 2.6 miles away from the ADHC of Livingston Parish, within the transportation range of an ADHC facility that accepts Medicaid.
87. Denise Hodges lives 7.7 miles away from Christus

Evidence First Eley Decl. ¶22.
First Eley Decl. ¶22.
First Eley Decl. ¶22. Second Eley Decl. ¶17. Second Eley Decl. ¶18.

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Schumpert ADHC, within the transportation range of an ADHC facility that accepts Medicaid.

88. Rickii Ainey lives 4.2 miles away from New Directions

Second Eley Decl. ¶19.

ADHC, within the transportation range of an ADHC facility

that accepts Medicaid.

89. Kenneth Roman lives 34 miles from an ADHC facility that Second Eley Decl. ¶20. accepts Medicaid, and DHH has not determined whether a facility in his region would provide him with transportation.

90. In addition to transportation, ADHC facilities must provide at a minimum: individualized training and assistance with activities of daily living; counseling and education in the areas of health and nutrition; individualized exercise and recreation programs; nursing services; medical care management; and one hot meal and two snacks per day.

First Eley Decl. ¶22.

91. There are currently 825 slots in the ADHC waiver, but the State is able to serve a higher number of people over the course of the year because of turnover.

Eley Tr. 41 (lines 16-18).

92. There were 905 ADHC recipients in SFY 2010, up from 385 Second Eley Decl. att. A. in SFY 2000.

93. Currently an LT-PCS recipient waits approximately five months between applying for an ADHC slot and receiving an offer.

Eley Tr. 53 (line 25) to 54 (line 1).

94. Most recently, on March 22, 2011, the State offered ADHC slots to individuals who were living in the community and who applied for the ADHC waiver on October 22, 2010.

Second Eley Decl. ¶14.

95. Individuals who have had an overnight hospital stay in the last 30 days and individuals who have been in nursing facilities for at least 90 consecutive days are given priority on the ADHC Registry over other individuals living in the community, and do not face a wait before receiving an offer.

Second Eley Decl. ¶13; La. Admin. Code tit. 50, § 2107(B), 36 La. Reg. 2797, 2798 (Dec. 2010).

96. Expenditures on the ADHC waiver grew by 240% between Second Eley Decl. att. C. SFY 2000 and SFY 2010.

97. According to Plaintiffs, there were 27 ADHC facilities in Louisiana that accepted Medicaid as of October 6, 2010.

Opp’n at 27 (citing First Eley Decl. att. D).

98. As of March 3, 2011, there were 38 ADHC facilities in Louisiana that accepted Medicaid and 22 more facilities

Second Eley Decl. ¶15.

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with applications pending.

VI. Recent DHH Initiatives Have Helped Individuals Leave Nursing Facilities and Have Allowed the State to Close Several Nursing Facilities Permanently.

A. Money Follows the Person

Undisputed Fact 99. In 2007, Louisiana successfully applied for a federal grant
under the Money Follows the Person (“MFP”) program.

Evidence Eley Tr. 89 (lines 7-10).

100. Under the MFP program, States qualify for a higher percentage of federal matching dollars to help cover the costs of transitioning people out of nursing homes, and Louisiana also uses MFP grant money to engage in outreach to nursing facility residents and to hire staff who can identify those residents who want to move into the community.

Eley Tr. 84 (lines 5-18).

101. The MFP program provides recipients with transitionrelated services including assistance in finding a residence, paying a rental deposit, and identifying an HCBS provider.

Eley Tr. 91 (lines 1-6).

102. Once individuals transition to the community with MFP Eley Tr. 89 (line 22) to 90

funding, they can receive long term care through one or

(line 4).

more of the State’s several HCBS programs

103. The MFP program successfully helped 80 individuals transition out of nursing facilities between November 2009 and February 2011, and another 100 to 120 transitions were pending.

Eley Tr. 92 (line 13) to 93 (line 5).

104. Many individuals have transitioned out of nursing facilities without the assistance of the MFP grant.

Second Eley Decl. ¶26.

B. Community Choice Waiver

Undisputed Fact 105. DHH recently received CMS’s approval for a new
waiver (the “Community Choice” waiver) that DHH designed to replace the EDA waiver.

Evidence First Eley Decl. ¶17; Eley Tr. 38 (lines 15-19).

106. The Community Choice waiver will be more comprehensive than its predecessor and will include skilled nursing services, skilled therapy services, home-delivered

First Eley Decl. ¶17.

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meals, assistive technology, and transportation

107. The Community Choice waiver will also allow enrollees First Eley Decl. ¶17. to self-direct their services and, in many cases, purchase more services within the same budget.

108. DHH expects the Community Choice waiver to be operational by the middle of 2011. All EDA enrollees will be transitioned to the Community Choice waiver.

First Eley Decl. ¶17; Eley Tr. 75 (lines 3-10).

C. Program of All-Inclusive Care for the Elderly

Undisputed Fact 109. Louisiana currently has two facilities that operate as
Program of All-Inclusive Care for the Elderly (“PACE”) centers: one in New Orleans and one in Baton Rouge.

Evidence First Eley Decl. ¶27.

110. The services provided at PACE centers include, among others: personal care and supportive services; restorative therapies; nutritional counseling; recreational therapy; meals; and primary care and medical specialty services.

La. Admin. Code tit. 50, § 303, 30 La. Reg. 244, 24546 (Feb. 2004).

111. PACE centers must provide recipients with transportation to and from the center.

First Eley Decl. ¶27.

112. The PACE centers are authorized to serve up to 380 individuals (180 in Baton Rouge and 200 in New Orleans), but they currently serve a total of approximately 230 individuals and there is no wait list.

First Eley Decl. ¶27.

113. Neither PACE center was providing services prior to SFY 2008.

Second Eley Decl. att. A.

D. 75 Newly Available Slots in the EDA Waiver

Undisputed Fact 114. Until recently, 150 of the slots in the EDA waiver were
set aside for individuals with Lou Gehrig’s disease, but only about 75 of these slots were filled.

Evidence Second Eley Decl. ¶25.

115. By reducing the set-aside to 75 slots, the State made 75 Second Eley Decl. ¶25. previously empty slots available for use.

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E. 200 Slots in the Pending Adult Residential Care Waiver

Undisputed Fact 116. Louisiana is currently awaiting federal approval of a new
waiver program—the Adult Residential Care waiver—that will create 200 new waiver slots.

Evidence First Eley Decl. ¶29.

F. Bed Buy-back Program

Undisputed Fact 117. Part of Louisiana’s strategy for serving a greater
percentage of individuals with adult-onset disabilities in the community involves reducing the supply of institutional services.

Evidence Eley Tr. 224 (lines 10-15).

118. Louisiana recently created a “Bed Buy-back Program” intended to lead to the permanent closure of nursing facilities and the elimination of nursing home beds from the market.

Second Eley Decl. ¶28.

119. Since July 2008, the Bed Buy-back Program has led to Second Eley Decl. ¶28. the elimination of 461 nursing home beds and the permanent closure of 4 nursing facilities.

120. Going forward, the State expects the Bed Buy-back

Second Eley Decl. ¶28.

Program to lead to the elimination of 2 nursing facilities per

year and an average of 115 to 144 beds per facility.

121. For each nursing facility closed under the Bed Buy-back Second Eley Decl. ¶28. Program, the State expects to incur new costs for five years but then see savings of $378,706 per year thereafter.

G. Private Room Conversion

Undisputed Fact 122. In 2007, the State established a Private Room
Conversion Program that gives nursing facilities a financial incentive to convert semi-private Medicaid rooms into private rooms and, in doing so, eliminate nursing home beds from the market.

Evidence Second Eley Decl. ¶29.

123. Since 2007, the Private Room Conversion Program has Second Eley Decl. ¶29. led to the permanent closure of 310 nursing home beds.

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Dated: March 30, 2011

Respectfully submitted,
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232
Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291 Counsel for Defendants

Case 3:10-cv-00635-JJB -SCR Document 39-1 03/30/11 Page 17 of 17

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

HELEN PITTS, KENNETH ROMAN,

) Civil Action No. 3:10-cv-00635-JJB-SCR

DENISE HODGES, and RICKII AINEY, on )

behalf of themselves and all others similarly )

situated,

)

Plaintiffs

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

DEFENDANTS’ RESPONSE TO THE STATEMENT OF INTEREST OF THE UNITED STATES
In 1999, the Suprem e Court declined to a dopt the expansive in terpretation of the

Americans with Disabilities Ac t (“ADA”) advanced by the Depart ment of Justice (“DOJ”) in

Olmstead v. L.C. , 527 U.S. 581 (1999). W hile the Olmstead Court affirmed that “undue

institutionalization” is a form of discrim ination, id. at 597, the Court expressly disavowed a

construction of the ADA that would require States to “pro vide a certain level of benefits to

individuals with disabilities,” id. at 603 n. 14; acknowledged that individuals m ay have to wait

for a community placement or have to seek institutional services from time to time, id. at 605-06;

declined to address th e validity of the DOJ’s “integration regulation,” id. at 592 (“We recite

these regulations with the caveat th at we do not here determ ine their validity.”); and rejected as

“unacceptable” the “fundamental alteration” test of the court below (which DOJ urg ed the Court

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to affirm), id. at 603, because it did not leave States with sufficient “leeway” “to m aintain a range of facilities and to administer services with an even hand,” id. at 605.
Twelve years later, the DOJ’s Civil Rights Division has atte mpted to rewrite th e Supreme Court’s Olmstead decision in its ow n image, through a series of “Statem ents of Interest” filed in cases, like this one, where Sta tes have attempted to implement changes to their home and community-based services (“HCBS”) programs for individuals with disabilities. While some district courts have accepted the position advanced, others (not m entioned by DOJ) have rejected it as not consistent with the statute or the governing case law. See M.R. v. Dreyfus, 2011 WL 588511, at *12-15 & n.42 (W .D. Wash. Feb. 9, 2011) (to be published); Boyd v. Steckel, 2010 WL 4683997, at *10-12 & n.19 (M.D. Ala. Nov. 12, 2010) (to be published). A careful reading of the Olmstead decision confirms that DOJ’s in terpretation of the statute cannot be sustained. Like the d istrict courts in Washington and Alabama, this Court should decline the DOJ’s invitation to read into the ADA requirem ents that the Supreme Court has already said are not there. I. There Is No Sound Basis Fo r Holding That An Individual “At Ris k Of
Institutionalization” Has Been Subjected To Discrimination Under The ADA. The DOJ contends that the ADA requires St ates to offer all individuals with
disabilities a level of hom e- and comm unity-based services (“HCBS”) adequate to ensure tha t none faces any risk of institu tional placement. (DOJ Br. at 10-17) This argum ent is inconsistent with Supreme Court precedent and has no foundati on in the ADA: Recogniti on that “unjustified institutional isolation of persons with disabilities” is a form of discrimination does not mean that there is an affir mative obligation to provide se rvices to elim inate any risk of institutional placement, however temporary. Persons at risk of institutionalization, by definition, are living in their homes and communities and are not iso lated. DOJ fails to provide a rationale for how
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individuals who are not isolated have a claim for discrim ination simply because there is som e degree of “risk” that they may in the future require institution-based services for a limited time.
As previously argued, Supreme Court precedent forecloses the argum ent that the general discrimination prohibitions in the ADA or the Rehabilitation Act require States to provide a certain level or type of services to individua ls with disabilities. (Reply Br. at 12-14 (discussing Olmstead, 527 U.S. at 603 & n.14, and Alexander v. Choate, 469 U.S. 287, 302-03, 309 (1985))). In fact, DOJ’s own rules expressly state that they do not require “a public entity to provide to individuals with disa bilities personal devices, su ch as wheelchairs ; individually prescribed devices, such as prescription eyeg lasses or hearing aids; readers for personal use or study; or services of a personal nature including a ssistance in eating, toileting, or dressing .” 28 C.F.R. § 35.135 (2010) (em phasis added). This provision “serves as a lim itation on all of the requirements of the regulation,” 56 Fe d. Reg. 35,694, 35,707 (July 26, 1991), and expressly applies to the rule requiring reasonable service modifications, id. (citing § 35.130(b)(7)).
While DOJ purports to agree tha t the ADA does not require a m inimum level of services, it contends th at a S tate discriminates when it f ails to prov ide sufficient HCBS to eliminate the risk that an individual with a disa bility will require institutional care. (DOJ Br. at 10 n.10) That response com pletely fails to acknowledge that the DOJ’s rule in fact establishes a minimum level of services—the am ount needed to avoid institutio nalization— a result that is in no way consistent with the governing Supreme Court precedent.
Moreover, the DOJ’s proposed standard—t hat a State has discrim inated against any individual who is “at risk of institutionalization”—is as vague as it is sweeping.1 As the DOJ
1 The DOJ’ s standard is also shifting. J ust a y ear ago, the DOJ was telling c ourts that dis crimination required a “ serious risk of being institutionalized.” Brief for t he United States as Amicus Curiae (continued…)
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recognizes, an indiv idual must be “at risk of nursing facility placement” to receive LT-PCS services in the first place – it is one of the eligibility criteria for the program. (DOJ Br. at 7) Th e population served by L T-PCS, the ADHC and EDA waivers, and sim ilar programs in other States is comprised of people who are elderly and disabled. Whether or not they receive personal care assistance, everyone in that population is “at risk of institutionalization” to som e degree. A short stay in a hospital or rehabilitation in a nursing hom e is not uncommon, and often unavoidable. HCBS programs can mitigate the “risk” that institutional serv ices will be needed. They can p ostpone the need for in stitutional placement. But they cannot eliminate the “risk.” Indeed, two of the persistent difficulties of ad ministering an HCBS progr am for the elderly and individuals with adult-onset disabilities are gauging who is likely to require institutional care and assessing the relative n eeds of a diverse group of individuals, all of whom are to some extent vulnerable. See Pls.’ Exh. 1, Deposition of Hugh Eley at 137 (line 4) to 138 (line 13) (ECF No. 38-3, pages 138-139 of 455). That a recip ient of LT-PCS is “at risk of institu tionalization” does not mean that she has a m eritorious ADA claim; it simply means she is like everyone else being served in one of the programs administered by OAAS.
Defendants’ Reply Brief explained why most cases cited by the DOJ are off-point or wrong, but the DOJ relies on two district court cases (one unpublished) from the Ninth Circuit that warrant a response here. Specifical ly, the DOJ asks this Court to follow Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009), appeal docketed, No. 10-15635 (9th Cir. Mar. 24, 2010), and Ball v. Rogers, No. 00-cv-0067, 2009 WL 1395423 (D. Ariz. Apr. 24, 2009) (ECF No. 394), appeal docketed, No. 09-16022 (9th Cir. May 19, 2009). The Brantley court held
Supporting Plaintiffs-Appellees at 13, Oster v. Wagner, No. 09-17581 (9t h Cir. Mar. 2, 2010) (em phasis added).
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that California’s decision to pr ovide only three days of ADHC serv ices instead of the previous five, 656 F. Supp. 2d at 1164, was discrim inatory because the State did not have “any m easures in place to ensure th at the tran sition from ADHC service to a lternative [HCBS] services is seemless [sic],” id. at 1175. The Ball court similarly held that Arizo na’s “failure to provid e adequate services to avoid unnecessary gaps in s ervice and institutionalization was discriminatory.” 2009 WL 1395423, at *5.
Neither Brantley nor Ball is sound authority, if for no other reason than because neither court applied Olmstead’s test for unjustified institutionalization. See Brantley, 656 F. Supp. 2d at 1169-75; Ball, 2009 WL 1395423, at *4. Both relied instead on Townsend v. Quasim, 328 F.3d 511, 519 (9th Cir. 2003), for the proposition that an “integration mandate claim” should be analyzed “under the traditional test appl icable to ADA claim s brought under Title II.” Brantley, 656 F. Supp. 2d at 1170 & n.3; see also Ball, 2009 WL 1395423, at *4. They did so even though Olmstead is controlling Suprem e Court precedent and ev en though Ninth Circuit decisions after Townsend have correctly app lied Olmstead, see, e.g., Sanchez v. Johnson , 416 F.3d 1051 (9th Cir. 2005). Although the Brantley court also stated that “Plaintiffs have made a sufficient showing under either form ulation,” 656 F. Supp. 2d at 1170 n.3, the court never explained how its d ecision squared with Olmstead, and the Ball court’s analysis was even more summary. This Court should adhere to Olmstead and not adopt the am orphous “risk of institutionalization” standard of Brantley and Ball.
The DOJ further suggests th at an individual who is at risk of requiring nursing facility care even for a short period before the State offers her a slot in an HCBS waiver program has been discrim inated against no less th an an individual who endures prolonged institutionalization despite the ava ilability of appropriate waiver sl ots. (DOJ Br. at 12)
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Defendants previously explained (Reply Br . at 13, 20-21) that th e ADA’s prohibition of “unjustified isolation of i ndividuals with disabilities,” Olmstead, 527 U.S. at 597, is lim ited to cases of “continued confinement in a segreg ated environment,” id. at 593. The Olmstead Court recognized as much when it observed that indi viduals who are qualifie d for HCBS “m ay need institutional care from time to time” when their needs exceed the level of care available in the community. Id. at 605. Given the opportunity to res pond to Defendant’s reliance on this language in Olmstead, the DOJ only notes that three district courts have concluded otherwise. Defendants submit that the Supreme Court is the better authority.
Based on its finding that, “historically, soci ety has tended to isolate and segregate individuals with disabilities,” 42 U.S.C. § 12101(a)(2), Congress prohibited “unjustified institutionalization” as a for m of discrimination under the ADA, Olmstead, 527 U.S. at 597. DOJ’s leap from “unjustified institutionalization” to a “ risk of institutionalization,” especially when any institutional stay is likely to be temporary, is simply another means of arguing that the statute requires a m inimum level of services; th at leap is not supported by the language of the statute and should be rejected. II. It Is Not Disputed That At Least Three Of The Four Named Plaintiffs Could Access
ADHC Services. Plaintiffs have indicated that they cannot supplement their LT-PCS hours with
services provided through the ADHC waiver b ecause there are not ADH C facilities in every corner of the State and because there is a wait of five months for some individuals. (Opp’n at 1516) Defendants presented undisputed evidence that th ree of the four plaintiffs live no m ore than 10 miles away from an ADHC facil ity that will provide the m with the necessary transportation, SUF ¶¶85-88, and that Plaintiffs would have al ready been offered ADHC services had they applied when they filed this lawsuit, SUF ¶¶93-94.
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The DOJ a cknowledges these facts only in a footnote, and it has little to say. (DOJ Br. at 16 n.12) T here it not es that there m ay not be an ADHC facility that will provide transportation to and f rom the current re sidence of Kenneth Rom an, and it says that the availability of ADHC services is a “disputed fact.” It is not clear whether the DOJ thinks this fact is disputed as to all Plaintiffs or only as to Kenneth Roman. If the former, there is no basis in the record for that contention, and the DOJ cites nothing to support its statem ent. If the latter, DOJ does not explain why the location of a single plaintiff is material in light of the Supreme Court’s admonition, in Olmstead, that the proper focus of the ADA inquiry is not on the immediate relief sought by individual plaintiffs but on 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 604. III. The DOJ Has Wron gly Argued The “Com prehensive Plan” Defense Out of
Existence. The DOJ argues that “[c]ourts have strictly interpreted the requirement that a state
demonstrate it has in place a com prehensive, effectively w orking plan in offering an alleg ed fundamental alteration defense.” (DOJ Br . at 18 n.15) This is not correct. In Olmstead, the Supreme Court explained that the funda mental-alteration defense gives States “m ore leeway” than the courts below (and the DOJ as am icus) allowed, 527 U.S. at 605, and that any construction of the defense that “would leave the State virtually defenseless” is “unacceptable,” id. at 603. Lower courts have explained that States bear only a “minimal burden,” Pa. Protection & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 382 (3d Cir. 2005), and that courts must “be sympathetic to funda mental alteration defenses,” Arc of Wash. State Inc. v. Braddock , 427 F.3d 615, 618 (9th Cir. 2005) (holding that a State’s HCBS program was comprehensive and effectively working).
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The DOJ not only strictly construes the “comprehensive plan” defense; it argues the defense is entirely unavailable in cases where HCBS recipients challenge a service reduction. (Br. at 18-19) This argum ent gets things preci sely backwards, and the DOJ cites no judicial decision that endorses it. Adopting the DOJ’s rule would be counter-productive. The rule requires a State to devote unlim ited resources to individuals already receiving HCBS even when those resources could o therwise help other per sons at risk of institutionalization or alre ady institutionalized persons leave nurs ing facilities. It makes it harder f or a State th at does provide HCBS to mount a defense than it is for a State that offers none . And it discourages States from creating state plan services like LT -PCS, which (unlike waiver services) are not subject to enrollment caps. No wonder no court has agreed with this position.2
Once it tu rns to the m erits of Louisiana’s comprehensive plan, the D OJ offers only a tepid endorsement of Plaintiffs’ positi on. (DOJ Br. at 19-20) The DOJ does not support Plaintiffs’ primary argument (that Louisiana lacks a “com prehensive, effectively working plan” because no single piece of paper sets forth the State’s policies for providing HCBS to individuals with adult-onset disabilities). Instead, the DOJ su mmarily states that Plaintiffs “have raised a number of factual issues.” ( DOJ Br. at 19) The DOJ does not suggest which of the dozens of “factual issues” raised by Plaintiffs are actually material or whether a trial would need to explore all of them. Nor could the DOJ provide significant insight on this question given its position that the “comprehensive plan” defense is inapplicable to States that have successful HCBS programs.
2 Employment discrimination cases ari sing under t he ADA confirm that the fundam ental-alteration defense is available even when a pl aintiff seeks to maintain the status quo or to regain services that wer e provided voluntarily in the past. See, e.g., Myers v. Hose , 50 F.3d 278, 284 (4th Cir.1995) (“A particular accommodation is not neces sarily reasonable, and t hus federally mandated, simply because the [employer] elects to est ablish it as a matter of policy.”). These cases provide important guidance in the Olmstead context. See 527 U.S. at 606 n.16.
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The upshot of the DOJ’s position is that, in its view, a State discrim inates under the ADA if it does not provide HCBS adequate to ensure that no individual with a disability risks even a temporary ins titutional placement. Once an individual shows that she is “at risk of institutionalization,” the State either has no de fense to that individual’s ADA claim or has to defend every aspect of its entire Medicaid progra m in a lengthy and open-ended trial. This is not what Congress intended when it prohibited discrim ination against individuals with disabilities or what the Supreme Court anticipated when it agreed that such discrimination includes unjustified isolation. Indeed, the Olmstead Court emphasized that a “State’s responsibility, once it provides community-based treatment to qualified persons w ith disabilities, is not boundless.” 527 U.S. at 603. IV. The DOJ’s “Most Integrated Setting” Regulation Does Not Create A Right To
HCBS Beyond What Olmstead Requires. Defendants have argued that Plaintiffs lack a private right of action to enforce the
DOJ’s integration regulation, 28 C.F.R. § 35.130(d), to the e xtent the r egulation imposes requirements not contained in the ADA itself . (Reply Br. at 34-35) The DOJ’s response misunderstands either Defendants’ argument or the relevant Supreme Court precedent.
The DOJ apparently believ es that if its inte gration regulation is “ valid and reasonable,” then it is enforceable through a priv ate right of action. (DOJ Br. at 20) This is plainly wrong. In Alexander v. Sandoval , the Suprem e Court consid ered whether there was a private right of action to enfo rce DOJ regulations prom ulgated under T itle VI and prohibiting activities that had a disparate impact on the basis of race. 532 U.S. 275, 278 (2001). The Court assumed that the disp arate-impact regulations were a valid and reasonabl e interpretation of the statute, id. at 281-82, but went on to hold that the re gulations were not privately enforceable, see id. at 284-93.
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Under Sandoval, the qu estion is not whether th e integration regulation is “valid and reasonable” but whether it “applies” th e ADA’s prohibition on discrim ination. “We do not doubt that regulations applying § 601’s ban on intentional di scrimination are covered by the cause of action to enforce that section,” id. at 284 (em phasis added), the Court explained in Sandoval, but “[i]t is c lear now th at the disparate-impact regula tions do not simply apply § 601—since they indeed forbid conduct that § 601 permits—and therefore clear that the priv ate right of action to enforce § 601 does not include a private right to enforce these regulations.” Id. at 285 (em phasis added). Thus, the holding of Sandoval is that the p rivate right of action to enforce a statute does not includ e a private righ t to enforce its implementing regulations (even valid and reasonable ones) when the regulations prohi bit conduct not prohibi ted by the statute itself.
Defendants’ real disagreem ent with the DOJ is about what the text of the ADA itself does or does not require. As Defendants have explained, the ADA’s prohibition of the unjustified isolation and segregation of individuals with disabilities in institutions is not so broad as to require the State to provide HCBS adequate to ensure that no ind ividual with a disability ever sets foot in an institution, even for a tem porary stay. The DOJ’s argument to the contrary is inconsistent with governing preced ent, has been adopted b y no court of appeals, and “would leave the State virtually defenseless once it is s hown that the plaintiff is qualified for the service or program she seek s.” Olmstead, 527 U.S. at 603. As the Supr eme Court explained when it disagreed with the DOJ’s endorsement of the Eleventh Circuit’s decision in Olmstead, that argument “is unacceptable.” Id. V. Conclusion
The DOJ offers no sound basis for denyi ng the m otion for summ ary judgment, and Defendants respectfully request that the motion be granted.
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Dated: April 13, 2011

Respectfully

submitted,
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232
Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291 Counsel for Defendants

Case 3:10-cv-00635-JJB -SCR Document 48 04/15/11 Page 11 of 12

CERTIFICATE OF SERVICE I certify on this 13th day of April, 2011, that a true and correct copy of the foregoing Defendants’ Response to the Statemen t of Interest o f the United Sta tes was filed electronically using the CM/ECF system . Notice of this filing will be sent via oper ation of the Court’s electronic filing system to the following: Nell Hahn nhahn@advocacyla.org Stephen F. Gold stevegoldada@cs.com Bruce Vignery bvignery@aarp.org Kenneth Zeller kzeller@aarp.org Counsel for Plaintiffs James L. Nelson Jim.Nelson@usdoj.gov Counsel for the United States
/s/ Matthew Berns Matthew Berns
Case 3:10-cv-00635-JJB -SCR Document 48 04/15/11 Page 12 of 12

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al. PLAINTIFFS
V. BRUCE GREENSTEIN, et al.

*

C.A. No. 3:10-cv-00635-JJB-SCR

*

*

*

JUDGE JAMES J. BRADY

*

*

*

MAGISTRATE JUDGE STEPHEN

*

C. RIEDLINGER

*

*

CLASS ACTION

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Plaintiffs file the following memorandum of law in opposition to Defendants’ Motion to

Dismiss under Fed. R. Civ. P. 12(b)(6), which this Court converted to a motion for summary

judgment pursuant to Fed. R. Civ. P. 12(d). Because there are material facts in dispute and because Defendants’ motion is not correct on the law, the motion should be denied.1

INTRODUCTION

In 1990, Congress passed the Americans with Disabilities Act (“ADA”), requiring all

public entities to refrain from discrimination, see 42 U.S.C. §12132. Congress’s findings

explicitly identified unjustified "segregation" of persons with disabilities as a "for[m] of

discrimination." See §12101(a)(2);2 §12101(a)(3) (discrimination … persists in such critical

areas as ... institutionalization...”); and §12101(a)(5) ("discrimination, include[s] ... segregation").

Ten years after the ADA was enacted, Louisiana had one of the most segregated systems

of long-term care in the country. Ninety-seven percent of individuals with disabilities received long term care3 under Medicaid only if they were confined in nursing homes.4 Only

1 Pursuant to Local Rule 56.2, Plaintiffs also submit a separate Statement of Disputed Facts, which is attached hereto. 2 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." 3 “Long term care,” as used in this memorandum, means programs that assist the elderly and adults with disabilities with activities of daily living (“ADL’s”), such as eating, moving around, bathing, dressing,
1 Case 3:10-cv-00635-JJB -SCR Document 38 03/14/11 Page 1 of 41

approximately 1,000 elderly individuals and persons with disabilities in 2000, out of a total of
over 35,000 persons who received long term care services, received Medicaid-funded services in an integrated setting – their homes and communities.5
Since 2000, primarily as the result of Barthelemy, et al.v. Louisiana Department of Health and Hospitals, et. al.,6 a class action brought in 2000 against the State, based on the ADA
and Olmstead v. L.C., 527 U.S. 581, 596-597 (1999), Louisiana has made progress in providing
home- and community-based services. In Olmstead, the Supreme Court recognized that
unjustified institutional isolation of persons with disabilities is a form of discrimination that
violates the ADA. The Barthelemy action was dismissed without prejudice in January 2010.
Despite the Barthelemy Settlement Agreement, and the Olmstead decision, Louisiana has
maintained, and even increased, its Medicaid expenditures on segregated nursing home services,
even though demand for nursing homes is dwindling. The present action focuses on Louisiana’s
imposition of heavy and disproportionate service reductions in Medicaid home and community-
based services. Specifically, Defendants propose to reduce their Long Term – Personal Care
Services (“LT-PCS”) from 42 hours a week to a maximum of 32 hours a week, with no
exceptions to prevent the unnecessary institutionalization of LT-PCS recipients in nursing homes,
and no plan to assure them access to alternative community services instead of
institutionalization.
These reductions fall disparately and most heavily on the most vulnerable group of
people with disabilities -- those who have the most severe disabilities and the most critical service
grooming, toileting, transferring, cooking, shopping, housekeeping, and medication administration, because of disabilities. Long term care can be provided in a nursing home, at home, or in another community location. While other populations in Louisiana, notably persons whose disabilities have onset before age 22 and are considered to have developmental disabilities, receive long term care services, this case concerns services only to the population of persons who have adult-onset disabilities or disabilities related to aging. 4 Defendants’ Memorandum in Support of Motion to Dismiss, Doc. No. 11-1 (hereafter “Defendants’ Memorandum”) at 10. 5 Attachment A to the Declaration of Hugh Eley (hereafter “Eley Declaration”), Doc. No. 11-3, p. 2. 6 C. A. No. 00-1083 in the U.S. District Court for the Eastern District of Louisiana.
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needs, who are struggling to maintain themselves in the community. Several of these individuals have brought this action claiming that these drastic reductions, as applied to them, constitute illegal discrimination under the ADA and Section 504 of the Rehabilitation Act, 29 USC § 794, because they will force them and the class members whom they represent to go into segregated nursing homes in order to obtain the services they need and could receive in the community.7
Defendants argue that the progress Louisiana made as a result of Barthelemy in offering home- and community-based services, coupled with its stated commitment to achieving balance between institutional and community-based services, insulates it from ADA discrimination charges. They assert, without any support, that the modifications that Plaintiffs request will be unduly expensive to the State.
FACTS The LT-PCS Program
Louisiana instituted the LT-PCS program approximately six years ago as part of the settlement in Barthelemy v. DHH. It is the largest program providing home- and communitybased services to the aged and disabled adult population.8 From the inception of the program, it provided persons with disabilities who would otherwise need care in a nursing home with up to 56 hours of help with activities of daily living such as bathing, dressing, feeding, and toileting, in their homes.9 In March of 2009, Defendants reduced the maximum number of hours of LT-PCS to 42.10 In September of 2010, Defendants promulgated a new rule reducing the maximum
7 Plaintiffs are not seeking in this action to enjoin the reduction in services as to all recipients of the service—only as to the class members, who are, by definition, at serious risk of institutionalization as a result of reducing community-based services. 8 Exhibit 1, Deposition of Hugh Eley (“Eley deposition”) p. 102 l. 13 – 103 l. 2; Pitts Doc. 44 (documents produced by Defendants in this case were referred to in Mr. Eley’s deposition, and will be referred to herein, by the number given them by Defendant). 9 Louisiana Register Vol. 29, No. 6 June 20, 2003, pp. 911-13; Eley deposition p. 66, l. 5-8. 10 Louisiana Register Vol. 35, No. 1 January 20, 2009, pp. 32-34; Eley deposition p. 66, l. 9 – p. 67, l. 17.
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number of hours that a participant in its LT-PCS program could receive from 42 to 32. There are
no exceptions for people at risk of institutionalization as a result of the reduced hours.11
The cut in the maximum number of hours from 42 to 32 will result in an average cut of
approximately three hours of services for LT-PCS recipients.12 However, Plaintiffs all receive 39
or more hours of service a week, and their hours will be reduced by at least seven hours a week.13
The severity of their disabilities causes them to need far more than the average number of hours
of service.14 The reduction in hours falls disproportionately on them. Plaintiffs do not believe or
argue that all of the 3,600 individuals whose LT-PCS will be reduced to 32 hours a week will be
placed at risk of institutionalization.15 In Plaintiffs’ cases, their treating physicians confirm that
they face this risk.
Facts Pertaining to the Named Plaintiffs:
The named Plaintiffs, Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and
Rickii Ainey, 30, and class member Cleo Lancaster, 61, all have severe disabilities. Defendants
have not disputed any of the following facts regarding their disabilities, their needs for care, nor
the dire consequences of the reduced LT-PCS hours.
11 Louisiana Register Vol. 36, No. 8 August 20, 2010, pp. 1749-52; Attachment E to Eley Decl., Doc. 11-3 p. 11. The State reassesses each recipient annually and sets the number of weekly hours of service. Of the named Plaintiffs, only Rickii Ainey’s assessment date has been reached, and Defendants have agreed to temporarily maintain her services at their prior level, rather than require her to seek temporary relief in this action. The same temporary agreement has been reached with Defendants for class member, Cleo Lancaster, see infra. 12 Eley deposition p. 206, lines 18-21. 13 Exhibit 3, Declaration of Helen Pitts (“Pitts Decl”) ¶22; Exhibit 4, Declaration of Kenneth Roman (“Roman Decl.”) ¶20; Exhibit 5, Declaration of Denise Hodges (“Hodges Decl.”) ¶16; Exhibit 6, Declaration of Rickii Ainey (“Ainey Decl.”) ¶28. 14 Eley deposition p. 206, l. 18 – p. 207, l. 9; p. 208, l. 9-20. 15 As of the date of the filing of Defendants’ Motion to Dismiss, of the approximately 12,000 individuals receiving LT-PCS services, 28% received services in excess of 32 hours per week. The remainder received less. Defendants’ Memorandum at 9; See Eley Decl., ¶37. Defendants do not have the breakdown of people who receive 33 or up to 42 hours a week. Plaintiffs have requested documents showing the number of hours that recipients of LT-PCS receive now, and how many they were receiving as of July 10, 2010. In response to Request No. 9 of Plaintiffs’ First Set of Requests for Production of Documents (Exhibit 2, p. 12), which requested “Documents sufficient to show how many hours (from 1 to 42) of LT-PCS per week recipients of LT-PCS receive: (a) As of July 1, 2010; and (b) Currently,” Defendants produced Pitts Docs. 1701-1703, which do not provide any breakdown besides stating the total number percentage of those receiving more than 32 and more than 42 hours a week.
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Helen Pitts:16 Plaintiff Helen Pitts is 78 years old. She is divorced and lives alone in the community.17
Ms. Pitts has had osteo- and rheumatoid arthritis, fibromyalgia, congestive heart failure and lymphedema. She requires the use of oxygen daily and at night. She is in constant pain in her legs, arms, shoulders and back18. Plaintiff Pitts needs assistance getting in and out of bed and getting in and out of her motorized scooter. She needs help going to the bathroom because she cannot get on and off the toilet without help, needs help pulling her clothes up and down, and needs help cleaning herself (in part to avoid decubitus ulcers). She has incontinent episodes daily. She needs help bathing, dressing and performing most of her personal hygiene. Ms. Pitts is unable to prepare meals, do her laundry or attend to household chores.19
Ms. Pitts’ physician, Dr. Gregory Ward, a physical medicine and rehabilitation specialist practicing in Baton Rouge, who has treated her for over ten years, confirms her diagnoses, her functional limitations, and her need for in-home care, and notes that her multiple diagnoses put her “in a precarious situation.”20 He notes that when she lacked adequate in-home care for a period of time in 2008 or 2009, her condition greatly deteriorated.21 He expressed the opinion that the 39 hours a week of in-home care that she is currently receiving is minimally adequate, but that if her hours of care are reduced to the new maximum of 32 hours a week, her condition will again deteriorate and she will be at risk of having to enter a nursing home for care.22
16 Helen Pitts has been on the waiting list for an Elderly and Disabled Adults waiver slot since September of 2007. Since the filing of this action, she was offered and has accepted a waiver slot, but her waiver services have not begun. 17 Pitts Dec. ¶¶ 1-3. 18 Pitts Decl. ¶8-12. 19 Pitts Decl. ¶¶24-28. 20 Exhibit 8, Declaration of Gregory Ward, M.D., (“Ward Decl.”) ¶¶1-10. 21 Ward Decl. ¶11. 22 Ward Decl. ¶¶9, 11-15.
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Kenneth Roman: Plaintiff Kenneth Roman is 47 years old.23 Plaintiff Roman has had several strokes
which has caused left side hemiparesis(paralysis). He also has diabetes, congestive heart failure, peripheral vascular disease, hypertension, coronary artery disease, renal failure and irritable bowel syndrome, as well as had several heart attacks, the most recent of which was in 2009.24 Mr. Roman lives in the community and is currently separated from his wife. One of the primary reasons they are separated is because his wife did not want to be his caregiver any longer. 25 Due to his impairments, Plaintiff Roman needs assistance with all of his ADLs, including bathing, washing, and brushing his teeth. He is incontinent and needs assistance cleaning after an incontinence episode. This is even more important when his irritable bowel syndrome occurs. He is often incontinent of bowel and bladder at night and often must wait until his personal care worker arrives in the morning to assist with cleaning. Plaintiff Roman needs assistance changing to a standing position from a sitting position. Often he is not able to move in bed without assistance. Not moving causes him severe pain and at risk of falling, when he tries to walk.26
Kendra Whitney, M.D., a family practitioner in New Iberia, Louisiana, has been his treating doctor for five years.27 She states that without adequate home care services, Mr. Roman is at great risk of falling and skin problems. Lack of adequate in-home assistance would cause him to require expensive in-patient hospitalizations and use of hospital emergency rooms much more often.28 In her experience, not only in treating Mr. Roman but also in treating numerous patients with disabilities, Mr. Roman’s 39 hours a week are medically necessary and the minimum that he
23 Roman Decl. ¶1. 24 Roman Decl. ¶12. 25 Roman Decl. ¶10. 26 Roman Decl. ¶¶15-18. 27 Exhibit 9, Declaration of Kendra Whitney, M.D. (“Whitney Decl.”) ¶¶1-4. 28 Whitney Decl. ¶8
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needs to reside safely in his home.29 A reduction in his hours of service will put him at significant risk of having to go into a nursing facility.30 Denise Hodges: 31
Plaintiff Denise Hodges is 53 years old and lives alone in the community.32 She was
diagnosed with transverse myelitis in 1989 that left her paralyzed from the waist down, and in 2001, was diagnosed with multiple sclerosis.33 Due to her multiple sclerosis, Ms. Hodges has
frequent extreme fatigue and loss of stability and requires extensive assistance transferring,
dressing, toileting and bathing. She cannot push her manual wheelchair, and she requires
assistance with personal hygiene, meal preparation, shopping, laundry and household chores.
Plaintiff Hodges requires digital stimulation in order to have a bowel movement and needs help with cleaning herself and any laundry that must be done as a result of bowel movements. 34 Ms.
Hodges developed decubitis ulcers on one of her heels and on her lower spine during a period of time when she was not receiving adequate community-based assistance.35
Ms. Hodges has been under the care of Dr. Alreesa Minegar, a Board-certified
neurologist, vascular neurologist, behavioral neurologist, and neuro-immunologist at LSU
Medical Center in Shreveport. He detailed Ms. Hodges’ need for home care and the devastating consequences to her of a lack of such care.36 He noted that she faces extreme danger from
possible complications of the incurable decubitus ulcers she has on her feet and legs if she does
not receive adequate home care. In addition to needing help with all ADLs, she needs frequent
assistance after leaks to her urinary catheter. In Dr. Minegar’s experience, people with
29 Whitney Decl. ¶¶5, 7, 10. 30 Whitney Decl. ¶¶11, 13. 31 Like Helen Pitts, Denise Hodges has been on the EDA waiver waiting list for many years, since September 11, 2007. She was finally offered an EDA slot after this litigation began. She has not yet begun to receive EDA waiver services. 32 Hodges Decl. ¶¶1, 4, 10-12. 33 Hodges Decl. ¶7. 34 Hodges Decl. ¶¶17-20. 35 Hodges Decl. ¶¶21, 23-25. 36 Exhibit 10, Letter dated October 18, 2010 from Alreesa Minagar, M.D., F.A.A.N.
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impairments similar to Ms. Hodges require 8 to 10 hours of home care per day. Therefore, he states that the 39 hours a week of home care that she receives is clearly medically necessary. Without it, he believes that she would be at significant risk of deteriorating or having to enter a nursing facility.37 Rickii Ainey:
Plaintiff Rickii Ainey is 30 years old and lives alone in the community. Ms. Ainey has arthrogryposis (a congenital form of arthritis), is paralyzed from the waist up and has limited mobility in her legs. She has limited range of motion in her legs and the range of motion is deteriorating.38 Ms. Ainey needs assistance with all activities of daily living, including but not limited to bathing her upper body, including her face, arms and torso, and washing her hair; dressing in the morning and undressing when she goes to bed; adjusting her clothing before and after toileting; getting on and off the toilet and cleaning herself after toileting; feminine hygiene; eating and drinking; transferring from any surface to a standing position; and moving once in bed. Plaintiff Ainey cannot prepare meals and cannot shop without assistance. In addition, she requires assistance to do all household chores and laundry.39
Ms. Ainey’s internist, Christopher Lege, M.D., an internal medicine specialist at Touro Infirmary in New Orleans, has been treating Ms. Ainey for four years. He confirms her diagnosis and functional limitations.40 He attributes Ms. Ainey’s having remained healthy to the fact that she has had home-care assistance. According to Dr. Lege, having dependable home-care has prevented her condition from progressing, by lessening stress she would place on her joints by attempting to do things on her own.41 He expresses the opinion that the 41 hours of personal care a week that she receives is the minimum that is medically necessary, and that any reduction in her
37 Id. 38 Ainey Decl. ¶¶1-3. 39 Ainey Decl. ¶¶ 4, 5. 40 Exhibit 11, Declaration of Christopher Lege, M.D. (“Lege Decl.”) ¶¶ 1-7. 41 Lege Decl. ¶8.
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in-home care is likely to cause her to be institutionalized in a nursing home. He states that nursing home placement would be inappropriate and medically contraindicated for Ms. Ainey.42
Ms. Ainey is also the care of a psychiatrist, Robert Ancira of New Orleans.43 He has
been treating her for depression since 2007, which he attributes to uncertainty over whether she would receive adequate personal care assistance.44 He states that the amount of personal care
assistance she receives is necessary for her emotional, as well as her physical health. If she were
to have to enter a nursing home for care, he believes her emotional health would decline drastically. 45 Cleo Lancaster: 46
Cleo Lancaster, a class member, is 61 years old and lives alone in the community in Rayville, Louisiana.47 She has achodroplastic dwarfism, severe osteoporosis, and secondary
hyperparathyroidism. Her condition has caused multiple fractures of her upper and lower
extremities, her shoulders, and her hips, that have never healed. These existing fractures cause
both physical deformity and severe pain, and prevent her from engaging in any weight-bearing activities. Her use of her extremities is essentially confined to her hands.48 Ms. Lancaster unable
to stand or to transfer herself from a bed to a wheelchair, or from her wheelchair to a toilet. She
cannot use the toilet without assistance, and must therefore use incontinence underwear. Ms.
Lancaster requires total assistance with transferring, toileting, dressing, showering, and personal hygiene. She is unable to move herself in bed.49
42 Lege Decl. ¶¶9-12. 43 Exhibit 12, Declaration of Robert Ancira, M.D. (“Ancira Decl.”) ¶¶1,2. 44 Ancira Decl. ¶3. 45 Ancira Decl. ¶¶6-9. 46 Defendants stipulated that Ms. Lancaster’s hours would be extended for 90 days, or through March 31, 2011, rather than requiring her to seek preliminary relief in this action. Ms. Lancaster has been on the EDA Waiver waiting list since 2007, and has been offered an EDA waiver slot since this case was filed. She has not yet begun receiving services under the waiver. 47 Exhibit 7, Declaration of Cleo Lancaster (“Lancaster Decl.”) ¶1. 48 Exhibit 13, Declaration of Dan J. Lafleur, M.D. (“Lafleur Decl.”) ¶7; Lancaster Decl. ¶¶6, 8-9, 11. 49 Lancaster Decl. ¶¶10, 17, 19.
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Ms. Lancaster is currently receiving 39.75 hours of personal care assistance, but received a notice in November of 2010 saying that her services would be reduced to 32 hours a week due to the change challenged in this case. Even now, with almost 40 hours a week of services, there are tasks that at times do not get done for her, and occasions when she has to sit in a wet brief for extended periods. If her hours are further reduced, she fears having to go into a nursing home for care.50
Dan J. Lafleur, a physician practicing family medicine in Rayville, Louisiana, has been caring for Ms. Lancaster for 15 years. He works intensively with elderly people and people who have disabilities, such as mobility impairments, who require assistance with 'activities of daily living. His declaration states that none of his 2,000 patients have more serious disabilities than Ms. Lancaster.51 He confirms her diagnoses and states that the 39.75 hours of home care that she is currently receiving are medically necessary, that Ms. Lancaster’s lack of mobility puts her at risk for skin breakdown and decubitus ulcers, and that this condition is extremely dangerous.52 He states that if Ms. Lancaster’s hours of home-care services are reduced, she will be at imminent risk of needing to go into a nursing facility for care. In his medical opinion, Ms. Lancaster’s health would be jeopardized if she went to a nursing home due to the effect this would have on her emotional state. He believes that she would become depressed, that her health would decline, and that her life expectancy would be significantly shortened.53
None of the Plaintiffs have family or friends who can provide the services they currently receive from LT-PCS.54
50 Lancaster Decl. ¶¶ 18-20, 23, 26. 51 Lafleur Decl. ¶¶1-6. 52 Lafleur Decl. ¶¶7-12. 53 Lafleur Decl. ¶¶17, 18. 54 Ainey Decl. ¶9-15, 18,20-23, 28, Hodges Decl. ¶10-12, 27, Roman Decl. ¶8-11, 23, Pitts Decl. ¶3, 7, 30, Lancaster Decl. ¶2, 25.
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Louisiana’s History of Segregation and Institutionalization
Louisiana’s progress in expanding home- and community based services since 2000 was
largely the result of a Court-approved Settlement Agreement in the Barthelemy case.55 The
original Settlement Agreement was approved at class fairness hearing October 18, 2001 (in SFY
02).56
The Barthelemy Settlement Agreement required DHH to create additional “slots” for
people in its Elderly and Disabled Adults Waiver (“EDA”), its Personal Care Attendant Waiver,
and the Adult Day Care Center Waiver. Most importantly for the instant action, the Settlement
Agreement required the creation of the LT-PCS program.57 Due to a delay in implementing the
LT-PCS program, the parties negotiated and entered a Supplemental Settlement Agreement,
which called for a later date for start of the LT-PCS program, and for additional slots in the
Waivers, on top of those to be created pursuant to the original court-approved and ordered
Agreement.58
The Louisiana Legislature attempted to kill the LT-PCS program before it started. In
2003, the Legislature reduced funding for the new program LT-PCS and ordered the Department
to ask the Court for permission to add 2,000 waiver slots instead of implementing LT-PCS as
55 Plaintiffs request that the Court take judicial notice, pursuant to Rule 201 of the Federal Rules of Evidence, of pleadings and stipulations filed in that case, in which the Louisiana Department of Health and Hospitals and its Secretary were defendants. Plaintiffs will refer to the Barthelemy documents, of which judicial notice is requested by their name, document number, and date filed in Civil Action No. 00-1083 in the U.S. District Court for the Eastern District of Louisiana, e.g. “Complaint, 00-1083 Doc. No. 1 (4/11/2000).” 56 Order and Reasons, 00-1083 Doc. No. 26 (October 18, 2001). The Settlement Agreement was not attached to Doc. No. 26 but is attached hereto as Exhibit 14. It was attached as Appendix C to Joint Motion to Approve Notice and Set Fairness Hearing, 00-1083 Doc. 34 pp. 27-62 (2/4/2003). 57 Exhibit 14, Barthelemy Settlement Agreement, pp. 16-17. The LT-PCS program is not to be confused with a waiver program called the PCA Waiver that was in existence in 2000. That program, a waiver that only served 361 recipients, was absorbed into the EDA waiver in 2005. Pitts Doc. 44, Eley deposition p. 103, l. 7-25. 58 Order and Reasons, 00-1083, Doc. 38 (3/31/2003); Exhibit 15, Supplemental Settlement Agreement, Appendix A to Joint Motion to Approve Notice and Set Fairness Hearing, 00-1083 Doc. 34 pp. 16-19 (2/4/2003). The Louisiana Nursing Home Association objected to the Supplemental Settlement Agreement and filed a motion to intervene to block the LT-PCS program. Objections by movant LA Nursing Home Assn to proposed settlement agreement, 00-1083, Doc. No. 37 (3/26/2003); Motion, 00-1083 Doc. No. 50 (8/11/2003). The motion to intervene was denied. Smooth Minutes, 00-1083 Doc. No. 62 (9/3/2003).
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agreed.59 The district court denied DHH’s motion to modify the settlement to eliminate the LT-
PCS program,60 and the program began serving substantial numbers of recipients in SFY 2005.
In SFY 2000, 1,030 individuals received home- and community-based services
(“HCBS”) in Louisiana, while 34,727 individuals received LTC services in nursing homes.61 All
of the persons who received HCBS in 2000 received them through waiver programs.62 In 2000,
Louisiana ranked 46th out of 47 states in the percentage of its Medicaid-funded long term care
budget that was devoted to home and community-based services.63
Well over 14,495 recipients of HCBS, who were added between SCY 2000 and 2010,
received their services either because they received services under the LT-PCS program begun as
a result of Barthelemy or because they received one of the 2,200 waiver slots created pursuant to
the Barthelemy settlements. 64 65
Despite the large increase in HCBS due to the Barthelemy case, Louisiana still, in 2011,
will spend approximately 73% of its Medicaid long term care budget on institutional nursing
home services and only 27% on community-based services. Louisiana has one of the highest, if
not the highest, number of nursing home beds per capita in the nation,66 and institutionalizes a
higher percentage of its population over the age of 85 than any other state.67 In December of
59 Motion by defendant LA Dept Health, defendant David Hood to alter or amend court-approved class action settlement, 00-1083 Doc. No. 43, p. 9 (7/16/2003). 60 Smooth Minutes, 00-1083 Doc. No. 62 (9/3/2003). 61 Pitts Doc. 44, Eley p. 102 l. 13 – p.103 l. 2. 62 Pitts Doc. 44. 63 Eley decl. ¶12. 64 The combined original Barthelemy Settlement Agreement and the Supplemental Settlement Agreement called for the addition of 2,200 waiver slots, see Barthelemy Supplemental Settlement Agreement p. 2. Attachment A to Eley Declaration, Doc. No. 11-3, p. 2, shows that 17,185 “unduplicated” HCBS recipients were added between SFY 2000 and SFY 2010. The number of “unduplicated recipients” is normally larger than the number of waiver slots because turnover in slots allows more than one individual to receive services under a waiver slot in a given year. Eley deposition p. 75 l. 24 – p. 76 l. 6. According to Doc. 1041, in 2010 12,295 (71.5%) received only LT-PCS services (“LT-PCS non-waiver”); 905 received ADHC services, 4,870 received EDA waiver services, and 221 of received services under the PACE program. Eley deposition p. 108, l. 15 – p. 109, l. 15. 65 Barthelemy was dismissed without prejudice on January 4, 2010. Order granting motion to dismiss, 001083 Doc. 180 (1/4/2010). 66 Eley deposition, p. 27, lines 1-12; Doc. 1159, Recommendation #68, Eley deposition p. 223, lines 6-21. 67 Eley deposition, p. 225, line 25 – p. 226, line 24 ; Doc. 1159.
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2010, Louisiana’s Medicaid Report estimated that expenditures on private nursing homes will be $801,550,525 in SFY 2011, while the expenditures on State nursing homes will add an additional $20,857,156. In contrast to the institutional expenditures, the total for home- and communitybased services (the sum of expenditures for LT-PCS ($189,137,091), Waiver-Adult Day Health ($7,577,091), Waiver-Elderly and Disabled Adults ($104,623,458), and PACE ($9,722,518)) is $311,060,252.68 Waiting Lists for Appropriate Home- and Community-Based Services
If LT-PCS is reduced to a maximum of 32 hours a week, with no exceptions based on need for services to avoid institutionalization in nursing homes, Plaintiffs and class members who have the most severe needs for in-home care will have no options for community-based services, other than entering nursing facilities. As will be more fully discussed below, people receiving services in the community do not take priority for waiver services. To be able to advance to the top of the waiting list, people must first go into a nursing facility, remain there for at least 90 days, and then wait another 60 to 90 days, or even longer, to receive services once a slot is offered, assuming one will become available within that time period.69
In Defendants’ Memorandum at pp. 8 and 21, they assert a defense that they have “more comprehensive programs” that “may be more appropriate [than LT-PCS] for individuals with a higher level of need.” These programs are the Elderly and Disabled Adult Waiver program, the Adult Day Health Care program, the Program of All-Inclusive Care for the Elderly, and the Money Follows the Person program. However, because of limitations in the number of waiver slots, lengthy waiting lists, limited geographical availability and age limits, many people currently receiving LT-PCS cannot access these services as an alternative to nursing facility care. Elderly and Disabled Adults Waiver
The Elderly and Disabled Adults (“EDA”) waiver affords people who qualify an annual
68 Pitts Doc. 1487, Eley deposition p. 23, lines 7-19. 69 Eley deposition p. 78, line 7 – p. 79 l. 5; p. 88, lines 3-12.
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“budget” of approximately $40,046, of which $1,680 must be spent for support coordination.70 The remainder of the budget can be spent on a variety of services including service coordination, environmental modifications (to make a home more accessible), a personal response system, and home care.71 The major service that is used is payment for a person to come into the home and provide care.72 At the current rate of $11.32 per hour,73 the EDA will afford approximately 65 hours a week of home care. This would certainly be adequate to maintain the Plaintiffs and others like them at home, and prevent their having to enter an institution for care.
However, as the following chart shows, there have been since at least 2007, and currently are, lengthy wait times for the EDA Waiver.74 The chart shows, for each date in the “Date” column, the date the last person who was on the waiting list received an offer for waiver services, and the length of time the next person on the list had been waiting for an offer:

Date

Date of last EDA offer Length of wait (months)

01/01/07 1/30/2004

35.6

01/01/08 2/28/2005

34.6

01/01/09 1/8/2007

24.1

01/01/10 9/30/2007

27.5

01/01/11 8/15/2007*

41.2

*From March 2009 to September 2010, people on the waiting list who were not receiving LTPCS were given priority over those who were receiving LT-PCS. In September 2010 DHH changed this policy. The change in policy resulted in reaching people receiving LT-PCS who had been on the waiting list longer than some of those who were not receiving LT-PCS.

70 Eley deposition p. 73, line 20 – p. 74, line 9. 71 Eley deposition p. 58, line 16 – p. 62, line 16. The “new, more comprehensive waiver program” that Defendants refer to at p. 11 of their Memorandum as a replacement for the EDA waiver will add services for people who are on the EDA waiver, but will add no new or additional waiver slots. Eley deposition p. 117, lines 4-16. 72 Eley deposition p. 61, line 7 – p. 62, line 21. 73 Exhibit 16, Letter dated March 4, 2011 from Caroline Brown to Nell Hahn, item 2. 74 Doc. 3186, Eley deposition p. 52, lines 1-25; Exhibit 16 ¶11, p. 3; Exhibit 17, Email from Matt Berns to Nell Hahn dated March 6, 2011.
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In October of 2010, 46% of the 12,021 people, who received LT-PCS only, were on the EDA waiting list.75 There has been a waiting list for the EDA waiver since at least 2006, and the waiting list has grown since then.76
After a person receives and accepts an offer for a waiver slot, it typically takes 60 to 90 days for services to actually begin.77 Despite the lengthy wait for EDA, Louisiana has not increased the number of EDA slots since SFY 2009,78 and they have been capped at 4,603 slots.79
Some groups have priority for these waiver slots and do not have to wait as long --
individuals with substantiated cases of abuse or neglect who, absent EDA Waiver services, would require institutional placement to prevent further abuse and neglect; individuals diagnosed with
Amyotrophic Lateral Sclerosis (ALS); and individuals presently residing in nursing facilities for 90 or more continuous days. These priorities allow some persons to come to the top of the waiting list —but they do not guarantee an immediate waiver offer. Persons in priority groups are only guaranteed the “next available” waiver slot.80 In any event, these priorities do not apply to any of the Plaintiffs, nor to many other individuals who need more than 32 hours of personal care
services to safely remain in their homes. Adult Day Health Care Waiver
The Adult Day Health Care (“ADHC”) waiver affords care, including meals, nursing, some therapies, and attendants, for at least five hours per day in an adult day care center. ADHC is not available in many areas of the state, has slots for only 825 people, and has a waiting list
over five months long. Wait times for the ADHC waiver are lengthy now and have been so for at least the last
75 Eley deposition p. 69, line 10 – p. 71, line 16; Doc. 1687, p. 2, items (d) and (e). 76 Eley deposition p. 77, lines 4-10. 77 Eley deposition p. 88, lines 3-8. 78 Eley deposition p. 74, line 24 – p. 75, line 2, 79 Eley deposition p. 41, lines 4-15. Though the Office of Aging and Adult Services requested funding of 1,000 additional waiver slots in SFY 2011, this recommendation was not carried forward in the Executive Budget. Therefore, the Legislature was never asked to fund the slots. Exhibit 16, p. 1, item 3. 80 LAC 50:XXI. §8105(B), Louisiana Register V. 36, No. 10, pp. 2217-20.
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two and a half years, as shown by the following chart:81

Date

Date of last ADHC offer Length of wait (months)

01/01/07 6/8/2006

6.9

01/01/08 12/17/2007

0.5

01/01/09 9/4/2008

4.0

01/01/10 8/12/2009

4.7

01/01/11 7/15/2010

5.7

Despite the lengthy wait for ADHC services, DHH has not sought new waiver slots for the ADHC waiver since the Barthelemy case was dismissed in 2009.82
In many areas of Louisiana, there are no ADHC Centers, so even a person able to wait for four to six months for a waiver slot would not be able to access this service.83 Attachment D to Hugh Eley’s deposition84 purports to show areas of the State within a 20-mile radius of an ADHC Center. According to the map, only the facilities indicated on the map with a star are actually participating in the Medicaid ADHC program. Of the 41 centers shown on the map, only 27 were designated with a star.85 PACE
The Program of All-Inclusive Care for the Elderly (“PACE”) is available only to people 55 years and older and only in certain parts of New Orleans and in the Baton Rouge area. It has slots only for 400 individuals.86 Either by reason of geography or age, the named Plaintiffs, and

81 See n. 75 supra. 82 Eley deposition p. 91, l. 15 – p. 92, l. 5. 83 Eley deposition p. 54, l. 25 – p. 55, l. 2. 84 Doc. 11-3, p. 9. 85 Eley deposition, p. 49, l. 18 – p. 50, l. 5; Exhibit 16, item 1, p. 1. Attachment D to Hugh Eley’s declaration is apparently not current. 86 Eley deposition p. 43, l. 7 – p. 44, l. 18.
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many other class members, cannot access this program.87 Money Follows the Person
The Money Follows the Person (“MFP”) program is a federal demonstration project that offers States enhanced federal match for services to participating individuals who are leaving nursing facilities. It also provides the State with additional funding for services to assist in transitioning people from nursing facilities to the community. It does not increase the number of slots in waivers, nor does it provide any additional services for people once the transition is made to the community.88 In order to be eligible for the MFP program, participants must have resided in a nursing home for at least 90 days.89 “Benchmarks” for the MFP program called for only 165 persons to be transitioned out of nursing homes by the end of 2010; however, Louisiana did not meet the benchmarks set in its written protocol for the MFP demonstration project.90 Needs of Plaintiffs and Class Members for LT-PCS
Unlike personal care programs in other states,91 Louisiana’s LT-PCS program requires recipients to meet a nursing facility “level of care” in order to qualify for the program. Applicants for home- and community-based programs, as well as nursing facility services, are screened for eligibility using a tool called the “LOCET” or “level of care eligibility tool.”92 In addition, an applicant for the LT-PCS program must demonstrate that he or she “faces a substantial possibility of deterioration in mental or physical condition or functioning if either home and communitybased services or nursing facility services are not provided in less than 120 days.”93 The process by which this is determined is set forth in the definition of “imminent risk” in the manual for the
87 Of the Plaintiffs discussed herein, only Rickii Ainey lives in one of the areas served by the PACE program, and she is only 37 years old. 88 Eley deposition p. 89, line 7 – p. 91, line 13. 89 Eley deposition p. 82, lines 5-23. 90 Eley deposition p. 93, line 19 – p. 94, l. 13; p. 95, lines 8-25; Doc. 59, p. 38. 91 Eley deposition p. 34, lines 4-8. 92 Eley deposition p. 132, l. 16 – p. 133, l. 6. 93 34 LAC 50 XV §12905, Louisiana Register, v. 30 no. 12 December 2004, p. 2831.
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screening process for LT-PCS.94 This requires the administration of stringent criteria set forth in
p. 7 of Exhibit 19.95
When the LT-PCS program was started as a result of the Barthelemy case, the Settlement
Agreement provided that the maximum number of hours was 56. Prior to March of 2009, DHH
used a level of services guide that attempted to estimate the actual number of care hours needed
to determine how many hours of service recipients of LT-PCS would receive.96 Defendants do
not know and have no opinion as to whether or not the hourly amounts of service were excessive
to meet the needs of persons who required assistance with ADL’s.97
As part of the Barthelemy Settlement Agreement, in March of 2009 the Defendants
reduced the maximum number of hours in the LT-PCS program to 42. The reduction was
necessary to restore the EDA waiver to cost-effectiveness, a requirement of the federal Medicaid
statute. 42 U.S.C. §1396n(c)(2)(D).98 At the same time, the Defendants began using a new
assessment and allocation method, known as SHARe.99 The people in the highest acuity levels
were are assigned the highest number of weekly support hours to a maximum of 42.100 Recipients
could appeal their SHARe allocation to get a more hours (to a maximum of 42 hours) if they
could show that they needed the hours to avoid going into a nursing home.
94 Exhibit 18, Level of Care Eligibility Tool (Eley Deposition Exhibit 2), p. 5. 95 Exhibit 19, Institutional Risk CAP (Eley deposition Exhibit 3), p. 7. The test for “imminent risk,” as modified by DHH, is for the person to show that he or she meets at least three of eight specified criteria: (1) has had a prior nursing home placement within last 5 years; (2) does not leave their residence more than once in a typical week in the last 30 days before the assessment; (3) urinary incontinence; (4) neurological diagnosis (Alzheimer’s, dementia, head trauma, or multiple sclerosis); (5) a functional decline in the last 90 days; (6) loss of ability to care for oneself (bathing, dressing, personal hygiene); (7) a sudden change in mental functioning, or (8) neither meal preparation nor shopping occurred in the last week. People who are seeking to enter a nursing home are screened using the LOCET, but do not have to show that they meet the “imminent risk” criteria in order to qualify for nursing home services. Eley deposition p. 132, line 16 – p. 133, line 6; p. 138, line 14 – p. 141, line 2; p. 148 lines 17-23. 96 Doc. 1949, p. 15; Eley deposition p. 155 l. 2 – p. 156 l. 17. 97 Eley deposition p. 155, l. 18 – p. 158, l. 10. 98 Eley deposition p. 66, line 5 – 67, line 17; p. 119, line 25 – p. 120, line 7. 99 Eley deposition p. 158, line 16 – 159, line 4. The new allocation methodology used data derived from Exhibit 20, the MDS-HC, to identify recipients’ need for support in conducting activities of daily living (ADLs) and instrumental activities of daily living (IADLs). The MDS-HC assessment generates a score that assigns the individual to one of seven Resource Utilization Groups. Some of the groups have subgroups. Each group and subgroup is then assigned a range of weekly support hours. 100 Eley deposition p. 207, lines 5 – 9.
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The reduction of the maximum from 42 to 32 in September of 2010 was not based on any
data regarding the weekly LT-PCS needs of the eligible population.101 In fact, Defendants have
no data on how many hours of care that people eligible for LT-PCS might actually need to live
safely in the community and to avoid unnecessary institutionalization in a nursing home.102 They
are unaware of any studies, analyses, or data on how many hours of personal care people who are
eligible for LT-PCS actually need to live in the community. Defendants have not collected any
such data, nor has it tried to collect information even on how long it takes people with disabilities
to perform ADLs.103 Defendants are unaware of any studies that correlate unmet need for home
care with increased risk of institutionalization. 104
Defendant Department of Health and Hospitals in September of 2010 also adopted a
different method to determine how many hours of LT-PCS a person could receive.105 DHH
began using an “ADL Index.”106 People who will be eligible to receive the highest number of
hours of LT-PCS under this new methodology must score at least a 14 on the ADL index.All
persons in the highest category in the ADL index must need actual physical assistance even to
move in bed, eat food placed in front of them, go to the toilet, and move from a bed to a chair.
For more than one of these activities, they must need weight-bearing support to complete these
basic tasks.107
101 Eley deposition p. 160, lines 22-25. 102 Eley deposition p. 152 l. 23 – p. 153 l. 1; Response to Request No. 5 of Plaintiffs’ First Set of Requests for Production of Documents. 103 Eley deposition p. 149, line 6 – p. 150, line 17. 104 Eley deposition p. 151 lines 1-4. 105 Plaintiffs are not challenging the change in allocation methodology in this case. 106 Doc. 1949, p. 2; Exhibits 21 and 22 (Eley deposition exhibits 4 and 5); Eley deposition p. 164, l. 3p.172, l. 7; Exhibit 16, p. 2, items 7 and 8. 107 The ADL index is constructed based on only four activities of daily living: (1) Mobility in bed: including moving to and from lying position, turning side to side, and positioning body while in bed; (2) Transfer—including moving to and between surfaces—to/from bed, chair, wheelchair, sanding position [Note—Excludes to/from toilet]; (3) Eating including taking food by any method, including tube feedings. It does not include “meal preparation” (“planning meals, cooking, assembling ingredients, setting out food and utensils”) which is an “IADL.” (4) Toilet use—including using the toilet room or commode, bedpan, urinal, transferring on/off toilet, cleaning self after toilet use or incontinent episode, changing pad, managing any special devices required (ostomy or catheter) and adjusting clothes. Exhibit 20, MDS-HC, p. 3, Section H (“ADL Self-Performance, cont”) items H(2)(a)(b)(g) and (h); Exhibit 21.
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Charlene Harrington, Ph.D., R.N., F.A.A.N., is a nationally-recognized expert in care
needs of persons with disabilities. Her teaching and research at the University of California, San
Francisco, has been focused on long term care, nursing homes, managed care, and home and community based programs, with primary emphasis on Medicaid-funded programs.108 She has
published widely, has been principal investigator on major government projects dealing with care
for people with disabilities and the elderly, and has co-authored two scholarly publications on the
unmet needs for personal assistance services and how to estimate the need for personal assistance
services for people with disabilities. She has done research for the Centers for Medicare and Medicaid Services and has been an expert for the U.S. Department of Justice.109
Dr. Harrington examined the Defendants’ evaluations of the named plaintiffs. Her
declaration states that the national mean number of personal assistance hours received by persons
like Helen Pitts and Kenneth Roman who require assistance with three ADL’s, is 59.6 per week
to remain safely and appropriately in the community. For persons like Denise Hodges, who
requires assistance with four ADL’s, the national mean number of hours of personal assistance
hours received is 85.9 per week. For persons like Rickii Ainey, who requires assistance with four
or five ADL’s, the national mean number is 118.5 hours per week. Clearly, 32 hours per week is
far below the number of hours of care that these, and similarly-situated, individuals need to avoid the risk of institutionalization and reside in the community.110
Mitchell LaPlante, Ph.D. a national expert in personal assistance needs of persons with
disabilities has testified before Congress, conducted numerous studies and done extensive
To score a 4 in any area, a person must need “extensive assistance,” “maximal assistance,” have “total dependence,” or have not had the activity occur at all, in the last three days. Exhibit 20, MDS-HC, p. 2, Section H, Item 2 (“ADL Self-Performance” pp. 2 and 3, items H(2)(a)(b)(g) and (h). A maximum of 3 points is given for needs for assistance in eating, while each of the other ADL needs can earn 4 points each. Therefore, mathematically, to qualify for the new maximum of 32 hours, a person would have to score at least 4 in two of these areas, and 3 in two others; or 4 in three areas, and 2 in one other. Exhibit 21; Exhibit 20, MDS-HC, p. 2, Section H, Item 2 (“ADL Self-Performance”) Exhibits 21 and 22 (Eley deposition exhibits 4 and 5); Eley deposition p. 164, l. 3- p.172, l. 7. 108 Exhibit 23, Declaration of Charlene Harrington (“Harrington decl.”) ¶¶ 1-4. 109 Harrington decl, ¶¶ 5-13, 20. 110 Harrington decl. ¶¶14-19.
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research on the effects of unmet needs of individuals with disabilities for personal care services.
When elderly and disabled individuals in need of personal care assistance do not have adequate
levels of help, they experience adverse consequences such as experiencing significant discomfort
and risk (for example, by going hungry), wasting (losing weight unintentionally and dehydration), injuries due to falls, burns, bedsores, and contractures.111 These problems are especially acute for
people like the named plaintiffs who live alone. Such individuals “are highly vulnerable and their
more detached informal networks do not compensate for lack of access to or reductions in public
services.” Inadequate levels of help reduce the ability of people with disabilities to live
independently and increases their risk of institutionalization and death. Dr. LaPlante goes on to detail the consequences of inadequate levels of assistance:112
Unmet needs are especially serious for persons needing help with activities of daily living (“ADL’s”) such as 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. These activities involve satisfying primary biological functions that, if not fulfilled, cannot be tolerated for long and have immediate and serious consequences leading to death, institutionalization, injury, or worsening health.
Research has established a link between unmet need in ADL’s and increased risk of death
in older persons with dementia; increased risk of being admitted to a nursing home; and rates of hospital admission; and depression.113
Comparisons with Other States
Defendants’ comparisons of Louisiana’s LT-PCS maximum to programs in other states
(Eley declaration ¶43) ignore critically important differences between HCBS in other states and
those in Louisiana. For example, Defendants did not compare the eligibility criteria for LT-PCS
in other states to Louisiana’s. They did not know if those other states require a nursing facility level of care, or imminent risk of institutionalization, as Louisiana does. 114
111 Exhibit 24, Declaration of Mitchell Laplante (“Laplante decl.”) ¶7. 112 Laplante decl. ¶10. 113 Laplante decl. ¶¶ 11, 12, 14, and 15. 114 Eley deposition p. 174, l. 20 - p. 175 l. 9.
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Further, a State plan personal care option is only one part of a State’s HCBS program.115 Some States use the personal care option as their main vehicle to provide home and communitybased services, and some States use waivers as their main program to provide these services. In comparing Louisiana’s offerings in the LT-PCS program to other states’, Defendants did not consider what those other states offered in the way of waiver services.116 They did not compare the waiting lists for the waivers in those states with the waiting lists for Louisiana waivers.117
In fact, in 2007, Louisiana served 8,625 in its LT-PCS program, but Arkansas served 14,223, Michigan 57,980, Texas 59,025, and North Carolina 49,877. 118 In 2007, Louisiana served 3,806 people in its waivers for the aged and disabled, while Arkansas served 9,249, North Carolina served 14,502, and Texas served 53,770 individuals.119
In 2009, Louisiana had 14,163 on waiting lists for its aged and disabled adults waivers, while Arkansas, the District of Columbia, Nebraska, and Oregon had no waiting lists; Maine had only 107 people on its waiting list, Montana had 600, and Texas had 745,058.120
In 2009, Louisiana was ranked 38th in per capita spending on home- and community based waivers for the aged and disabled, expending only $15.85 per capita.121 Arkansas ranked 19th, Texas 29th, North Carolina 23rd, District of Columbia 2d, and Idaho 8th. Their respective per capita expenditures were: Arkansas $35.05, Texas $21.29, District of Columbia $116.26, and Idaho $57.29.122
115 Eley deposition p. 173, l. 5-9. 116 Eley deposition p. 174, l. 1-11. 117 Id. lines 16-19 118 Exhibit 26, Kaiser Commission, Medicaid and the Uninsured. Medicaid Home and Community-Based Service Programs: Data Update, February, 2011 at p. 19, Table 1C. 119 Id. at p. 34, Table 5. 120 Id. at p. 40, Table 11. 121 Exhibit 27, Thompson Reuters, Medicaid Long-Term Care Expenditures in FY 2009 at Table I 122 Id.
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Disproportionate Reductions in Home- and Community Based Programs Defendants have not demonstrated that the reduction in the maximum hours of service in
the LT-PCS program to a maximum of 32 hours a week, with no exceptions for persons who require more than 32 hours to avoid institutionalization, is necessary for budgetary reasons.
The LT-PCS program is cost-effective. Its participants must meet the level of care for a nursing facility and, if they went into a nursing home, the State would have to pay the Medicaid per diem to the nursing home proprietor. Instead, participants in the LT-PCS program receive services in their own homes. The average cost of services for a person on the LT-PCS program only is considerably less than the cost of maintaining a person in a nursing facility, and it has been so since the inception of the program.123
Defendants claim (Memorandum at p. 21) that the reduction of LT-PCS will save $5 million annually. However, while the State is slashing spending for LT-PCS, it is increasing spending on nursing facilities. Nursing home rates have increased in every year since SFY 2003, even as numbers of individuals served in nursing homes have steadily declined.124 In SFY 2011, the nursing home Medicaid per diem reimbursement was increased by approximately $8 per patient per day.125 The State’s Medicaid report shows that private nursing facilities were paid $737,529,166 in SFY 2010126 and were estimated to receive $801,550,525 in SFY 2011.127 Stateowned nursing homes received another $20,735,439 in SFY 2010, and were allocated $20,857,156 in the budget for SFY 2011.128 This represents an increase of $64,143,076 (8.5%) in a program in which numbers of individuals served have declined.
123 Pitts Doc. 1041; Exhibit 16, p. 2, item 4. 124 Pitts Docs. 1188 and 44. 125 Eley deposition p. 215, line 4 – p. 216, line 3. 126 Pitts Doc. 43. 127 Pitts Doc. 1487, p. 5. 128 Id., p. 6.
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Louisiana has one of the lowest occupancy rates of nursing facility beds of any state in the U.S,129 yet expenditures on nursing homes continue to increase. Annually, Louisiana’s long
term care budget includes over $23 million in payments to nursing homes for empty nursing home beds.130
Home and community based services, on the other hand, have been cut dramatically.
Rates paid provider agencies for LT-PCS services (which include all overhead, employers’ share
of taxes, workers’ compensation premiums, training, and recruitment costs, as well as direct care
worker salaries131), have been reduced 17.4% since February of 2009. In SFY 2006, the
reimbursement rate was $12 per hour.132 In February, 2007, the rate was raised by $2 per hour to
increase the wages of direct service workers.133 In February of 2009, the reimbursement rate was reduced by 3.5%, to $13.51.134 In August of 2009, the reimbursement rate was again reduced,
this time by 4.8%, to $12.86.135 In August of 2010, the reimbursement rate was reduced by 4.6%
to $12.27, and in January of 2011, the rate was reduced by another 5.8% to $11.56. 136
Defendants have produced no evidence as to the cost of providing services in excess of
the 32-hour cap only to those individuals who face a risk of institutionalization as a result of the
cap. Defendants have also produced no evidence that in calculating the budgetary effect of the
32-hour cap, they took into account any increased costs in the other long-term care programs,
such as nursing home care, the EDA waiver, the ADHC waiver, or PACE, from individuals such as plaintiffs who face institutionalization as a result of the cut. 137 Similarly, Defendants have not
129 Eley deposition p. 31, lines 19-21. 130 Pitts Doc. 1353, Eley deposition p. 220, l. 21 – p. 223, line 5. 131 Eley deposition p. 213, line 213, line 8 – p. 214, line 7. 132 Pitts Doc. 1188, Eley deposition p. 19, lines 4-24. 133 Louisiana Register, V. 34, No. 2 p. 253 (February 20, 2008). 134 Louisiana Register, V. 35, No. 9 p. 1901 (September 20, 2009). 135 Louisiana Register, V. 36, No. 2 p. 215 (February 20, 2010). 136 Louisiana Register, V. 37, No. 1 p. 37-8 (January 20, 2011). 137 In Exhibit 2, Plaintiffs’ First Request for Production of Documents, no. 22, Plaintiffs requested all documents that contain, refer, or relate to estimates of the budgetary effect that the implementation of the Emergency Rule of August 2010, effecting a reduction in the hours of LT-PCS available to recipients from 42, on Defendants’ Medicaid expenditures for nursing facilities, the EDA program, the ADHC program, or
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included in any cost estimates the effect of reductions in services on hospitalization or emergency
room Medicaid expenditures.
Decision-making Process for Reduction in Maximum Hours-
The decision to reduce the maximum hours of LT-PCS that the Plaintiffs could receive
from 42 to 32 was not made pursuant to any long-term plan for providing a mix of nursing facility
and home and community-based services to Louisiana’s population of elderly and disabled adults.
Instead, it was made in response to a specific $61 million line-item reduction in the budget for the
LT-PCS program in the Executive Budget for SFY 2011.138 The Office of Aging and Adult
Services, the agency that is primarily responsible for developing the overall direction of programs
for the A/D population, did not recommend this reduction—in fact, it had recommended an
increase in the LT-PCS program for SFY 2011.139 As late as February 23, 2011, Mr. Eley had no
idea where the idea for the reduction originated,140 At the same time that the Secretary of DHH
and the Governor were reversing the Office of Aging and Adult Services on the issue of the LT-
PCS budget, they failed to put OAAS’s recommendation for an additional 1,000 slots in the EDA
waiver in the Executive Budget.141
Steve Kaye, a nationally-recognized expert,142 analyzed trends in Louisiana’s long-term
care services and compared them to those of other states. Louisiana’s per capita expenditures on
home- and community-based services, starting from very low spending in 2000, increased above
the PACE program. Defendants’ response (Exhibit 2) invited further discussion. Plaintiffs’ counsel corresponded with Defendants’ counsel on February 4, asking: “Did DHH make any estimates of the effect the reduction of hours of LT-PCS from 42 would have on the budget for Medicaid expenditures for nursing facilities, the EDA program, the ADHC program, or the PACE program? If so, we are seeking documents related to these estimates.”After a discussion, Defendants’ counsel responded on February 15 that Defendants had not identified any responsive documents. 138 Eley deposition p. 195, l. 15 – p. 203, l. 2; Pitts Docs. 3142 and 3121 (redacted by Defendants). 139 Eley deposition p. 196, lines 14-23. 140 Eley deposition p. 196, lines 10-11. 141 Eley deposition, Letter from Caroline Brown, item 3, p. 1. 142 Exhibit 25, Declaration of H. Stephen Kaye (“Kaye decl.”) ¶¶1-3. Dr. Kaye is on the faculty of the University of California San Francisco, Co-Director of the UCSF Disability Statistices Center, is principal or co-principal investigator projects funded by the U.S. Department of Education and the Social Security Administration, has published extensively in peer-reviewed literature on disability issues, and is Chair of the Disability Section of the American Public Health Association.
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that of the other southern states and briefly approached the national average in 2009. However, since 2009, Louisiana’s expenditures on HCBS have declined, and remain far below the national average.143 This is also true when the proportion of expenditures on HCBS, as compared with institutional care (for the non-DD population), is compared among states and nationally. Louisiana’s proportion of spending on HCBS grew from 2000 to 2009, but has declined sharply since, so that it is now below both the national and the regional average.144 Louisiana has deviated from the national trend of realizing cost savings on institutional care as HCBS expenditures have increased.145 Though there has been a large reduction in the institutionalized population in the state, with declines exceeding both the national average and the other states in the South Central region, per capita nursing home expenditure has increased substantially in Louisiana.146 While other states that have increased their HCBS spending generally saw a commensurate reduction in nursing home expenditures, Louisiana has not succeeded in achieving such savings, because of increases in per-resident nursing home expenditures. Dr. Kaye opines that reducing nursing home spending, in line with already-achieved reductions in nursing home usage, would be more likely to generate savings in overall LTC expenditures than would cuts in HCBS programs, which would probably drive more people into nursing homes.147
ARGUMENT Standard For Summary Judgment
Summary judgment is appropriate when the record discloses “that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the burden of identifying those portions of the pleadings and the discovery in the case that demonstrate the absence of a genuine issue of material fact. Lincoln General Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005), citing Celotex
143 Kaye decl. ¶9, Figure 1. 144 Kaye decl. ¶10, Figure 2. 145 Kaye decl. ¶¶ 11-13, Figures 3-5. 146 Kaye decl. ¶¶ 12-14, Figures 6 and 7. 147 Kaye decl. ¶¶ 15-17.
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Corp. v. Catrett, 477 U.S. 317, 325, (1986). “If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response." Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).
In deciding a summary judgment motion, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. Id. Citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Furthermore, the party opposing a motion for summary judgment does not need to present additional evidence, but may identify genuine issues of fact extant in the summary judgment evidence produced by the moving party. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 198-200 (5th Cir. 1988). The evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in his favor. Groh v. Ramirez, 540 U.S. 551, 562, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). 1. Analytical Framework
In Olmstead v. L.C., 527 U.S. 581, 598-603 (1999), the Supreme Court held that unjustified institutional isolation of persons with disabilities is a form of discrimination based on disability. Thus, public entities must make reasonable accommodations in policies, practices and procedures regarding the services that they provide to avoid such discrimination. Id. at 603-606. They are not required to make modifications that constitute “fundamental alterations” of their programs. Id.
In the instant action, the ADA requires Defendants allow persons who need more than 32 hours of personal care services in order to avoid institutionalization to receive those services. It is important to note that plaintiffs are not seeking to enjoin reductions in the LT-PCS program to all recipients in the LT-PCS program — only those reductions to people who will be put at risk of unnecessary institutionalization by the reduction.
Defendants do not contest the fact that Plaintiffs are qualified persons with disabilities,
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who can appropriately be served in the community. Neither do they contest Plaintiffs’ claims that these reductions, if applied to them and to others like them, place them at risk of having to move into institutions to receive care.148 Indeed, Defendants’ motion assumes the truth of Plaintiffs’
allegations that the named Plaintiffs and class members will be forced into institutions to receive the services they are currently receiving in the community. See Defendants’ Memorandum at 20,
“The complaint alleges that Plaintiffs are likely to require institution-based services but those allegations, even if true, do not constitute discrimination”; and “…a State does not violate the ADA’s antidiscrimination principle solely because some qualified individuals who prefer HCBS
might instead receive services in institutional settings.” Defendants’ Memorandum misunderstands the ADA, ignores the Supreme Court's
Olmstead decision, and misstates the parties' burdens of pleading and proving discrimination. 2. Plaintiffs have established a violation of the ADA and the Rehabilitation Act by showing that they will be unnecessarily institutionalized.
Far from establishing, as Defendants contend in their Memorandum at 2, that in
challenges like this one, “the court is not to look at individual plaintiffs or a single aspect of the State’s program but rather the entirety of the State’s program…,” Olmstead and its progeny make it clear that individuals with disabilities, who could appropriately be served in the community and
are placed unnecessarily at risk of institutionalization by a State’s policies, establish discrimination under the ADA unless the State demonstrates that to provide services to them in
the community would entail a fundamental alteration of its programs. See, e.g., Radaszewski v. Maram, 383 F.3d 599, 614-15 (7th Cir.2004); Ball v. Rogers, No. 00-67 (D. Ariz. April 24, 2009)
148 Defendants do point out that one of the named plaintiffs, Denise Hodges, by virtue of the fact that she has already been on the waiting list for the EDA waiver since September 11, 2007, will soon be offered an EDA waiver slot and therefore will be able to access additional services. Since Defendants’ motion was filed, she and one of the other named Plaintiffs, Helen Pitts, and class member Cleo Lancaster, have also been offered waiver slots by virtue of their having already been on the EDA waiting list for more than three years. However, it takes 60 to 90 days after a slot is offered and accepted for services to begin. Defendant has not established that these persons have received approval for their EDA services to begin. When and if they do, their claims in this case will be moot. Yet other named plaintiffs, and many class members, will continue to be at risk.
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(holding that defendants’ failure to provide adequate services to avoid unnecessary institutionalization was discriminatory); Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034 (D. Haw. 1999) (holding that individuals in the community on the waiting list for community-based services offered through the State’s Medicaid program, could challenge administration of the program as violating Title II’s integration mandate because it “could potentially force Plaintiffs into institutions”); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (ADA’s integration mandate applies equally to those individuals already institutionalized and to those at risk of institutionalization); Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008) (unpublished decision) (“Plaintiffs have demonstrated a strong likelihood of success on the merits of their [ADA] claims that the Defendants’ drastic cuts of their home health care services will force their institutionalization in nursing homes”); see also Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161,1164 (N.D. Cal. 2009); Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 985 (N.D. Cal. 2010); and V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009) (all granting preliminary injunctions where plaintiffs were at risk of institutionalization due to cuts in community-based services). 3. Plaintiffs have established a violation of the ADA and the Rehabilitation Act by showing that Defendants’ implementation of budget cuts discriminates against those LT-PCS recipients based on the severity of their disabilities.
Further, Defendants reduction of the maximum number of hours from 42 to 32 disproportionately affects people who receive close to 42 hours a week. While the average reduction that LT-PCS recipients will receive is 3 hours a week, recipients with the greatest needs for services face cuts of 7 or more hours a week. These are the people whose current allocation of service hours is greatest because their “acuity level”—the extent of their disabilities—is greatest. The way in which these cuts are being implemented thus discriminates against LT-PCS recipients based on the severity of their disabilities, in violation of the ADA. See Clark v. Cohen, 613 F.Supp. 684, 693 (E.D.Pa.1985) (holding that a claim of a denial of access to a program based on the relative severity of disability qualifies under section 504); Jackson by Jackson v.
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Fort Stanton Hospital and Training School, 757 F.Supp. 1243 (D.N.M.), rev'd in part on other grounds, 964 F.2d 980 (10th Cir.1992) (holding the failure of community programs for people with developmental disabilities to accommodate the “severely handicapped” while serving less severely handicapped persons stated a claim under section 504); Plummer by Plummer v. Branstad, 731 F.2d 574, 578 (8th Cir.1984) (same); see also Wagner v. Fair Acres Geriatric Center, 49 F. 3d 1002 (3d Cir. 1995). 4. Plaintiffs and class members have no practical alternatives to nursing facility admission.
While Defendants assert that it has other, comprehensive programs for persons who need more than 32 hours a week of personal care for ADL’s, these programs are not in fact available to many class members. People who are living in the community are not able to access Defendants’ other programs (e.g., EDA, ADHC, PACE) without lengthy waits. Though it may be possible to shorten this wait time if they enter a nursing facility and remain there for 90 days, they will still not be guaranteed adequate community services on the 91st day. What they will have is “priority” for the next available waiver slot.
To the extent that Defendants’ policy forces Plaintiffs to physically enter a nursing facility as a condition of receiving the same services they have been receiving in the community, it.violates the ADA. The Tenth Circuit, in Fisher v. Oklahoma Health Care Auth., 335 F. 3d 1175, 1181 (10th Cir. 2003), rejected the defendants’ argument that plaintiffs could not make an integrate mandate challenge until they were placed in the institution, reasoning that the protection of the integration mandate, 28 C.F.R. §35.130(d):
..would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discrimination law or policy that threatens to force them into segregated isolation. ..[W]hile it is true that plaintiffs in Olmstead were institutionalized at the time they brought their claim, nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements.. Congress did not intend that a person must wheel into the nursing facility in order to demonstrate to the State they want community-based services instead of institutional services.
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In Fisher, the Court concluded that “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 the state policy under the ADA’s integration mandate without first submitting to institutionalization.” Id at 1182. See also M.A.C. v. Betit, 284 F.Supp. 2d 1298,1309 (D.Utah 2003), Brantley v. Maxwell-Jolly, 2009 WE 2941519,*7 (N.D.Cal. Sept. 10, 2009); Haddad v. Arnold, Case No. 3:10-cv-414-J-99-MMH-TEM, at DE #49 (M.D. Fla. July 9 2010); cf. Long v. Benson, 2008 WL 4571903 (N.D. Fla. Oct 14, 2008), aff’d 2010 WL2500349 (11th Cir.2010). 5. The modification that Plaintiffs propose is a reasonable accommodation.
The modification that Plaintiffs propose is that they, and others in the class, be permitted to retain their hours of LT-PCS, which they have already been receiving, to the extent that the receipt of those hours of service is necessary to prevent their institutionalization. Again, Plaintiffs wish to emphasize that this does not necessarily mean that no one will be subject to the 32-hour maximum—only that those individuals who would be placed at risk of institutionalization as a result of such reductions should be able to receive the services necessary to maintain their independence.
Defendants have failed to establish that there are no material issues of fact in dispute and that they are entitled to summary judgment on reasonableness of Plaintiffs’ requested accommodation. They do not argue that Plaintiffs or other LT-PCS recipients should have their services reduced because they are receiving services in excess of their needs.
Plaintiffs are not seeking a new service, as were the plaintiffs in Rodriguez v. City of New York, 197 F. 3d 611 (2d Cir. 1999), or seeking to require Defendants to request new slots on their waiver programs, as were the plaintiffs in ARC of Washington State v. Braddock, 427 F.3d 615 (9th Cir. 2005). Plaintiffs are simply seeking to be allowed to keep the services that Defendants have been and are currently providing, because those services are vital to their ability to continue to live independently in the most integrated setting, 28 C.F.R. §35.130(d).
Plaintiffs’ ADA claims are very similar to those in Fisher v. Oklahoma Health Care
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Authority, 335 F.3d 1175 (10th Cir. 2003), in which plaintiffs living in the community sought to retain pharmacy benefits that they already had, and to avoid having to enter a nursing home in order to receive the same services they could be and were receiving in the community. The Fisher Court held it was not 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.” Id. at 1183.
Defendants cite examples of other states that they allege either do not offer LT-PCS as part of their State plan at all, or that have such services capped at less than 32 hours a week.149 However, these comparisons ignore important differences between the home and community based service programs in the other states and in Louisiana, such as eligibility criteria for the personal care program, the existence and ready availability of alternative programs, and overall expenditures on HCBS. These differences present clear factual disputes regarding the extent to which Louisiana compares favorably with other states. But more importantly, without a showing that these other states are in compliance with the Americans with Disabilities Act’s integration mandate, such comparisons are not probative on any material issue. 6. Defendants have not proved an affirmative defense.
In order to avoid liability under the ADA and Section 504, Defendants must establish, as an affirmative defense, that the requested relief is not a reasonable accommodation but a fundamental alteration. See Olmstead, 527 U.S. at 604; Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 492 n. 4 (3d Cir. 2004); Townsend v. Quasim, 328 F.3d 511, 520 (9th Cir. 2003); Disability Advocates, Inc. v. Paterson, 598 F.Supp.2d 289 (E.D. N.Y. 2009); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 293 (E.D.N.Y. 2008); Messier v. Southbury Training Sch., 562 F.Supp.2d 294, 323 (D.Conn.2008); Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034 (D. Haw. 1999). C.f. Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F. 3d 1052, 1059-60 (5th Cir. 1997) (in an ADA Title III case, plaintiff bears burden of introducing evidence of accommodation that is 149 See Defendants’ Memorandum at 22 and Eley decl, Doc. 11-2 ¶43.
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reasonable “in the general run of cases”; burden then shifts to defendant to plead and prove that the requested modification would fundamentally alter the nature of the public accommodation: “The type of evidence that satisfies this burden focuses on the specifics of the plaintiff's or defendant's circumstances and not on the general nature of the accommodation.”) A. DHH does not have an “effectively working plan”
The Olmstead Court’s delineation of defenses to unjustified institutionalization claims was in the context of a claim by two individuals who were institutionalized and were on a waiting list for waiver services. The two Plaintiffs argued that, because the cost of providing services in the community was less than the cost of institutional services, it could not be a “fundamental alteration” of the State’s programs for them to receive community-based waiver services rather than remain on a waiting list. It was in that context that the Court stated that a State could avoid liability by demonstrating that it had “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.”150 If there was a plan to address the needs of institutionalized people on waiting lists and if the waiting list moved at a “reasonable pace,” then the modifications the Olmstead plaintiffs suggested would entail a fundamental alteration of those plans.
The instant action presents a very different situation. Here, the named plaintiffs and class members are not institutionalized and do not request to move ahead of others on the waiting lists for waiver services. They are simply seeking to maintain the services that they already have in the community through the LT-PCS program. Thus, to constitute an affirmative defense to plaintiffs’ claims, Defendants’ plans would need to address persons with disabilities who are in the community and at risk of institutionalization, and the services necessary to prevent this.
Defendants point to two documents as constituting their “Olmstead” plans. (1) A
150 Olmstead, 527 U.S. at 601-03.
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document entitled “Plan for Immediate Action,” developed in 2005,151 which it states was a “first step” that “sought to identify the key system components and hallmarks that States must have in place if they are to rebalance their long-term care systems and provide a choice between institutionally-based and community-based long-term care services;” and (2) a 2007 document entitled “Louisiana’s Plan for Choice in Long-Term Care,”152 which outlines a number of “concrete steps” to be implemented over several year period. Defendants claim that the existence of these documents, and the fact that home- and community-based services have greatly increased since Louisiana’s near-total reliance on institutions in 2000, constitutes a complete defense to Plaintiffs’ request for a reasonable modification in its program to prevent their unjustified and unnecessary institutionalization.
These documents do not establish an affirmative defense to Plaintiffs’ claims for three reasons. First, they do not actually contain plans for maintaining qualified persons with disabilities in community settings. They do not even articulate meaningful, measurable goals for actually providing adequate community services. Second, they are not “effectively working.” Sufficient services continue to be unavailable and waiting lists continue to be unreasonably long and continue to grow. Finally, and perhaps most importantly in this case, the actions that Plaintiffs are challenging here are not part of these plans. If anything, the reduction in LT-PCS contravenes the goals and strategies set forth in the plans.
Lack of specificity: While Defendants’ plans pronounce a commitment to the goal of allowing people to choose to receive long-term care in the community rather than in institutions, they do not actually set forth a plan to achieve that goal. They do not address specific programs, like the LT-PCS program, or the question of how people who cannot continue to survive in the community with
151 Exhibit 2, Defendants’ Response to Plaintiffs’ First Set of Requests for Production of Documents, Request 6; Pitts Doc. 256 152 Pitts Doc. 216.
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only 32 hours of LT-PCS can be enabled to continue to live at home, rather than in institutions.153
They do not even estimate the funding that would be needed to provide the services necessary to sustain such individuals in the community.154 The only time that the 2005 “Plan for Immediate
Action” refers to the lengthy waiting list for waiver services for the aged and disabled population
is when it states that it cannot include a recommendation for “allocating funding for all people
currently on home and community-based waiver waiting lists,” because that would be inconsistent with the requirement that the plan be “budget neutral.”155 The only reference to
waiting lists or registries in Louisiana’s Plan for Choice for Long Term Care is a “Major Action
Step” listing: “Develop strategies to address management of the Request for Services Registry.”156
A fair reading of the plans and of updates to the plans,157 reveals that they do not set forth
plans for actually achieving the stated goal of permitting people who meet a nursing facility level
of care to choose community-based services over institutional services.
Cases subsequent to Olmstead have held that to demonstrate a “comprehensive,
effectively working plan” as an affirmative defense to a claim of unjustified institutionalization
requires more than simply introducing a document styled as a plan. For example, in Frederick L.
v. Dep’t of Pub. Welfare (Frederick L. II ), 422 F.3d 151 (3d Cir. 2005), the Third Circuit held
that to constitute a defense under Olmstead, a State plan had to “adequately demonstrate a
reasonably specific and measurable commitment to deinstitutionalization for which [the state]
may be held accountable.” Id. at 157. Though the State had a plan, it was insufficient because:
DPW remains silent as to when, if ever, eligible patients at NSH can expect to be discharged. Instead, DPW proffers general assurances and good faith intentions to effectuate deinstitutionalization. General assurances and good-faith intentions neither meet the federal laws nor a patient's expectations. Their implementation may change
153 Eley deposition p. 182, lines 4-13. 154 Eley deposition p 183 line - p. 184, line 5. 155 Doc. 256, Plan for Immediate Action, p. 15-16, item 4. 156 There are other references in this document to “Direct Service Worker” or “DSW” registries. These are workforce listings, not lists of people waiting for community services. 157 Pitts Docs. 26 and 31.
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with each administration or Secretary of Welfare, regardless of how genuine; they are simply insufficient guarantors in light of the hardship daily inflicted upon patients through unnecessary and indefinite institutionalization. Thus, notwithstanding any announced commitment to deinstitutionalization, DPW's failure to articulate this commitment in the form of an adequately specific comprehensive plan for placing eligible patients in community-based programs by a target date places the “fundamental alteration defense” beyond its reach.
Id. at 158-59. See Haddad v. Arnold, supra at 34 (holding that an effectively working plan, would
need to show more than the fact that other programs had increased in size and expenditures but
would have to address the effectiveness of the particular program available to the plaintiff).
Louisiana’s plans have far less substance than the plans found lacking in Frederick L.158
Its “outcomes/indicators” are mostly lists, reports, and communications with “stakeholders.” The
only “outcome or indicator” that calls for actual services to persons with disabilities is utterly
non-specific: under the fourth objective, one “outcome/indicator” is “implementation of services
that are currently under development.” What those services are, to whom they will be available,
and when—all are significantly absent from the plan.
There is nothing inherently wrong with Defendants’ having plans of this nature, but such
documents cannot serve as a defense to claims of unjustified institutionalization.
Plan is not “effectively working”:
Not surprisingly, these plans have not resulted in the provision of adequate services to
prevent institutionalization of people in the named plaintiffs’ situation. The waiting list for
people in the community to access the most comprehensive service, the EDA waiver (except
“documented cases of abuse and neglect” and people with ALS), is over 41 months long.
Alternative programs, such as the ADHC waiver and the PACE program, are not available
158 The section dealing with Aging and Adult Services in “Louisiana’s Plan for Long-term Care,” Pitts Doc. 216, pp. 13-15, states as its goal: “to provide affordable, accessible, timely, and customer-driven supports and services to the elderly and persons with adult onset disabilities in a variety of settings.” Placement of persons with disabilities in less restrictive settings, or diverting them from institutions via the provision of adequate community services is not even a stated goal. Under the stated goal of providing timely services in a variety of settings, there are four “objectives“: (1) assess the current array of supports and services to identify gaps and evaluate for effectiveness; (2) identify, evaluate and propose new or improved services and supports consistent with the stated goal; (3) develop a strategy to address barriers and obstacles to implementation, access, and use of new and improved services; and (4) implement new or improved services consistent with the stated goal.
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statewide. The ADHC waiver has a waiting list that is almost 6 months long. People may access these waivers sooner if they enter a nursing home for services, but Defendant has recently passed a rule that even people in nursing homes must wait three months before gaining priority for waiver services. Once they are offered a waiver slot, it takes another 60 to 90 days, or more, for community services to begin.
LT-PCS reduction is not included in plans: Finally, it would not make sense to permit Defendants to use these plans as a defense to Plaintiffs’ claims unless they show, at the least, that the LT-PCS reduction was contemplated in those plans or is at least consistent with them. Defendants do not and cannot make such a showing. When these plans were developed in 2005 and 2007, people in Plaintiffs’ position were entitled to access up to a maximum of 56 hours a week of LT-PCS. Neither of these plans, nor any updates, mention the reduction in available hours to a maximum of 32, with no exceptions for people who may be institutionalized without more services. They do not discuss budget cuts in LT-PCS, decreases in reimbursement rates to providers of LT-PCS, increases in reimbursement to nursing homes, or decreases in the proportion of the long term care budget devoted to home- and community-based services. 7. Defendants have not shown that to grant the modification Plaintiffs request would be inequitable The fundamental alteration defense under Olmstead permits Defendants to demonstrate that, despite the fact that the challenged action puts Plaintiffs at risk of unnecessary institutionalization, it would be inequitable to grant the reasonable accommodation. Defendants cannot show that the modest accommodation Plaintiffs request—the maintenance of services to those LT-PCS recipients who would be placed at risk of institutionalization if the maximum were enforced as to them--would be in any way inequitable. Defendants do not actually substantiate their claim that the “change” Plaintiffs are requesting would cost the State “close to $5 million annually.” Defendants’ Memorandum at 21.
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Defendants have produced no evidence regarding the number of people, out of the approximately 3,000 who currently receive services above the 32-hour-a-week level, that will be actually placed at risk of institutionalization as a result of the cuts. Many of them will probably not be placed at risk because the cuts they will receive may be minimal (e.g., from 33 to 32 hours a week), or because they have family members or other unpaid caregivers who can and will make up the reduced hours. Without any evidence of the actual cost of allowing only those persons placed at risk of institutionalization to retain their service, Defendants cannot assert that they have established an affirmative defense.
Further, Defendants have not included the cost of institutionalizing Plaintiffs or other class members in any of their estimates of the cost of continuing to provide LT-PCS to them in excess of 32 hours a week. LT-PCS costs are far less than nursing facility costs.159 Assuming, arguendo, a person presently receives the maximum of 42 hours of LT-PCS a week, at the current provider rate of $11.56 per hour it costs the State $485.52 per week or $25,247 per year. The average cost of providing care to a Medicaid recipient in a nursing facility, on the other hand, is $37,480.160 By failing to even consider the cost of providing services to Plaintiffs and class members in nursing facilities, Defendants have ignored one side of the cost equation and stacked the deck.
Even if the modification Plaintiffs request to prevent their unnecessary institutionalization did cost “close to $5 million annually,” as Defendants assert, that alone would not establish that to provide them with this relief would be inequitable. Budgetary constraints, taken alone, are not enough to establish a fundamental alteration defense. Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Public Welfare, 402 F.3d 374, 381 (3d Cir. 2005). As the Court of Appeals for the Tenth Circuit stated, in rejecting Oklahoma’s argument that its limitation on a prescription drugs for people receiving services through a Medicaid HCBS waiver in the community (while
159 Pitts Doc. 44; Exhibit 16, item 4, p. 2. 160 Pitts Doc. 1687, p. 3, item h.
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providing unlimited prescriptions to nursing home residents) was necessary because of the state’s fiscal crisis:
[T]he fact that Oklahoma has a fiscal problem, by itself, does not lead to an automatic conclusion that preservation of unlimited medicallynecessary prescription benefits ... will result in a fundamental alteration .... 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. Id. at 1182-83 (emphasis added); see also Radaszewski, 383 F.3d at 613-15; Crabtree v. Goetz, 2008 WL 5330506 at *26; Messier v. Southbury Training Sch., 562 F.Supp.2d 294, 323, 345 (D.Conn.2008); Cota v. Maxwell-Jolly, 688 F.Supp. 2d 980, 995 (N.D. Cal. 2010). On the contrary, the evidence before the Court suggests that it is the cut in LT-PCS that is inequitable. The LT-PCS program is in demand and has been steadily growing. The people served by the LT-PCS program have to meet criteria for care in a nursing facility—in fact, they have to meet are additional objective criteria that as to “imminent” or “institutional” risk, that persons seeking services in a nursing home do not have to meet. There is no reason to believe that people in the program are utilizing more services than they need. The reduction in hours came about strictly in response to a budget cut targeted specifically at the LT-PCS program by someone in either the office of the Secretary of DHH or the Governor’s office. The Office of Aging and Adult Services—the agency responsible for all long term care services, both in nursing facilities and in the community-- did not propose this cut and in fact proposed increases in the program. In contrast, the number of persons in nursing facilities has been steadily declining, both in Louisiana and nationally. Louisiana’s nursing home occupancy rate is only 72%--among the lowest, if not the lowest, in the nation.161 Despite the fact that this program is serving fewer and fewer people, the nursing facility budget, the per capita cost of nursing facility services, and the
161 Pitts Doc. 1484. Annually, payments to nursing homes include payments for empty nursing facility beds that total more than $23 million. Pitts Doc. 1353; Eley deposition p. 220, l. 21 – p. 223, line 5.
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average nursing facility reimbursement rates have increased in SFY 2011 as in previous years,
while rates to LT-PCS providers were cut drastically and maximum hours of service reduced
from 56 to 32 hours a week over a two year period. In the same year that LT-PCS was targeted
for a $61 million reduction in Medicaid reimbursements, nursing facilities received an increase in
their Medicaid budget of over $48 million. The reduction in LT-PCS services, with no
exceptions, will force people like the Plaintiffs into more expensive, as well as more segregated
nursing homes..
CONCLUSION
Defendants have failed to carry their burden of demonstrating that there are no issues of
material fact and that they are entitled to judgment as a matter of law on Plaintiffs’ claims.
Plaintiffs therefore request that Defendants’ Motion to Dismiss (converted to a Motion for
Summary Judgment) be denied.
Date: March 9, 2011.
Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 205-6166 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org
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Bruce Vignery, D.C. Bar No. bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424

297911

Counsel for the Plaintiff

CERTIFICATE OF SERVICE
I hereby certify that on March 9, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________

41 Case 3:10-cv-00635-JJB -SCR Document 38 03/14/11 Page 41 of 41

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al. PLAINTIFFS
V. BRUCE GREENSTEIN, et al.

*

C.A. No. 3:10-cv-00635-JJB-SCR

*

*

*

JUDGE JAMES J. BRADY

*

*

*

MAGISTRATE JUDGE STEPHEN

*

C. RIEDLINGER

*

*

PLAINTIFFS’ SEPARATE STATEMENT OF DISPUTED ISSUES OF FACT

Pursuant to Local Rule 56.2, Plaintiffs on behalf of themselves and the putative class

members state that the following are material facts in dispute as to which there exists a genuine

issue to be tried:

1. How many LT-PCS recipients will be placed at risk of institutionalization as the result of the

reduction of maximum hours of LT-PCS from 42 to 32?

2. What would be the cost to the State be of providing LT-PCS hours in excess of the 32-hour

maximum to those LT-PCS recipients who will be placed at risk of institutionalization as the

result of the reduction of the maximum to 32?

3. What would be the cost to the State be of providing nursing facility services to those LT-PCS

recipients who will be institutionalized as the result of the reduction of the maximum to 32?

4. Whether providing LT-PCS hours in excess of the 32-hour maximum to persons who will be

at risk of institutionalization is a reasonable accommodation, given the costs of providing

nursing facility services to those persons?

5. Whether Defendants have a “comprehensive effectively working plan” for preventing

Medicaid recipients who need long term care that can appropriately be provided to them in

their homes and communities, from having to enter nursing facilities to receive that care.

1 Case 3:10-cv-00635-JJB -SCR Document 38-1 03/14/11 Page 1 of 3

6. Whether Defendants have actually available alternative services to prevent the institutionalization of those LT-PCS recipients who will be placed at risk of institutionalization as the result of the reduction of maximum hours of LT-PCS from 42 to 32, given the waiting lists and geographic restrictions that presently exist for potential alternative services.
7. Whether Defendants have adequate services, other than LT-PCS, so that persons with severe disabilities will be able to avoid nursing home placement by promptly receiving adequate Medicaid personal care services in their homes and communities.
8. Whether Defendants’ actions in reducing funding for home- and community-based services, while increasing funding to nursing facility services, in the face of increased participation in home- and community-based programs and declining participation in nursing facility services, violates its plan for placing qualified persons with disabilities in less restrictive settings.
9. Whether the reduction in LT-PCS to a maximum of 32 hours a week without any exceptions adheres to or significantly departs from Defendant’s plan for long term care services. .
10. Whether Defendants waiting lists for Medicaid services in the community are moving at reasonable pace.
11. Whether Defendants’ budget cuts fall disproportionately on people attempting to remain in their own homes and communities while receiving care.
12. Whether the State’s reduction of services impacts disproportionately on people with the most severe disabilities.
13. Whether the State intentionally discriminates against people who wish to remain in the own homes and communities by increasing the nursing home/institutional Medical Assistance per diem reimbursements while reducing the Medical Assistance for community-based services.
14. Whether the reduction of LT-PCS services was motivated in whole or in part by the State’s desire to maintain compensation levels for providers of nursing facility services at the
2 Case 3:10-cv-00635-JJB -SCR Document 38-1 03/14/11 Page 2 of 3

expense of services in the community. Date: March 9, 2011.

Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 205-6166 nhahn@advocacyla.org

Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424
Counsel for the Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on March 9, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________

3 Case 3:10-cv-00635-JJB -SCR Document 38-1 03/14/11 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUSIANA

HELEN PITTS, et al. Plaintiffs,
v. BRUCE GREENSTEIN, et al.
Defendants

)

)

C.A. No. 3:10-cv-00635-JJB-SCR

)

)

JUDGE JAMES J. BRADY

)

)

MAGISTRATE JUDGE STEPHEN

)

C. RIEDLINGER

)

)

CLASS ACTION

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517,1 because this litigation implicates the proper interpretation and application of title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and in particular, its integration mandate. See 28 C.F.R. § 35.130(d); Olmstead v. L.C., 527 U.S. 581 (1999). The Department of Justice has authority to enforce title II, 42 U.S.C. § 12133, and to issue regulations implementing the statute, 42 U.S.C. § 12134. The United States thus has a strong interest in the resolution of this matter. This lawsuit alleges that the State of Louisiana’s reduction of the maximum number of weekly available hours of service in its Long-Term Personal Care Services (“LT-PCS”) program will place individuals with disabilities who receive these community-based services at risk of institutionalization in violation of the ADA. (Compl. ¶¶ 1-5, 38, 103-07.) See 36 La. Reg. 1752 (Aug. 2010) (announcing reduction in maximum number of weekly LT-PCS services from 42 to 32 hours per week.) Plaintiffs propose to bring this suit on behalf of a class defined as current
1 28 U.S.C. § 517 permits the Attorney General to send any officer of the Department of Justice “to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States.”
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and prospective Medicaid-eligible Louisiana residents receiving LT-PCS services, “who desire to live in the community instead of in a nursing facility[,] who can reside in the community with appropriate Medicaid-funded LT-PCS services[,] and who are at risk of being forced to enter a nursing home” because of Defendants’ reduction of available LT-PCS services. (Compl. ¶ 97.)
Each of the four named plaintiffs and putative class member Cleo Lancaster (collectively, “Plaintiffs”) currently live in their own homes in the community and have been able to do so because Defendants provide reimbursement for Plaintiffs’ personal care services through the State’s LT-PCS program. (Id. ¶ 3.) The LT-PCS program provides hourly reimbursement for medically necessary assistance to each of the Plaintiffs, including eating, bathing, toileting, transferring, preparing meals, managing medication, and arranging for transportation and medical appointments. (Id. ¶ 31.) Defendants’ reduction of the maximum number of weekly hours of service available to individuals in the LT-PCS program offers no appeals process to individuals who require greater than 32 hours of service to remain in the community. 36 La. Reg. 1752 (Aug. 2010). Plaintiffs allege this reduction presents a grave threat to their ability to remain safely in their homes and in the community – placing them and others in the putative class at risk of deteriorating health conditions, repeated hospitalizations and emergency room visits, and, ultimately, entry into a segregated, institutional setting. (Compl. ¶¶ 1-5, 38-39, 103107.) Plaintiffs request that the State reasonably modify the LT-PCS program to permit Plaintiffs and members of the proposed class to retain their present level of hours, or to allow new enrollees to exceed the 32-hour cap (up to 42 hours) to the extent that level of service is necessary to enable them to live in the community settings. (Id. ¶ 105; Pls.’ Mem. in Opp. to Defs.’ Mot. for Sum. J. (“Pls.’ Mem.”) at 31-32.) Defendants refuse to make the reasonable
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modifications requested by the Plaintiffs, asserting that the reduction is necessary in light of budgetary shortfalls. (Defs.’ Mem. in Supp. of Defs’ Mot. to Dismiss (“Defs.’ Mem.”) at 2.)
Plaintiffs commenced this lawsuit on September 22, 2010, to prevent Defendants from reducing LT-PCS services as to named plaintiffs and putative class members, each of whom they allege will be placed at risk of institutionalization due to the reduction in services. (Compl. ¶¶ 37-39, 96-102.) Defendants filed a Motion to Dismiss on October 21, 2010. On December 3, 2010, this Court converted that motion into a Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 12(d). Plaintiffs responded to the Defendants’ converted Motion for Summary Judgment on March 14, 2011. Defendants filed their Reply on March 30, 2011.
The United States respectfully urges this Court to deny Defendants’ converted Motion for Summary Judgment. Plaintiffs have presented ample disputed material facts supporting their ADA claim, including the potentially devastating effects of Defendants’ reduction of available hours in the State’s LT-PCS program and the inadequacy of Defendants’ efforts to ensure longterm care is provided in the most integrated setting appropriate to the needs of individuals with disabilities. Moreover, Defendants’ presentation of the law fundamentally mischaracterizes the State’s obligations under title II of the ADA.
Statutory and Regulatory Background Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). 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.”
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42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against
individuals with disabilities by public entities:
[N]o 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.
As directed by Congress, the Attorney General issued regulations implementing title II, which are based on regulations issued under section 504 of the Rehabilitation Act.2 See 42
U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250, 45 Fed. Reg. 72995 (1980),
reprinted in 42 U.S.C. § 2000d-1. The title II regulations require public entities to “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 preamble discussion of the
“integration regulation” explains that “the most integrated setting” is one that
“enables individuals with disabilities to interact with nondisabled persons to the fullest extent
possible . . . .” 28 C.F.R. Pt. 35, App. A (2010) (addressing § 35.130).
Twelve years ago, the Supreme Court applied these authorities and held that title II
prohibits the unjustified segregation of individuals with disabilities. Olmstead, 527 U.S. at 596.
There, the Court held that public entities are required to provide community-based services to
persons with disabilities when (a) such services are appropriate; (b) the affected persons do not
oppose community-based treatment; and (c) community-based services can be reasonably
accommodated, taking into account the resources available to the entity and the needs of others
2 Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”). Claims under the ADA and the Rehabilitation Act are treated identically unless one of the differences in the two statutes is pertinent to a claim. Kemp v. Holder, 610 F.3d 231, 234-35 (5th Cir. 2010); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
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who are receiving disability services from the entity. Id. at 607. The Court explained that this holding “reflects two evident judgments.” Id. at 600. “First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. “Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.
To comply with the ADA’s integration requirement, a state must reasonably modify its policies, procedures or practices when necessary to avoid discrimination. 28 C.F.R. § 35.130(b)(7). The obligation to make reasonable modifications may be excused only where a state demonstrates that the requested modifications would “fundamentally alter” the programs or services at issue. Id.; see also Olmstead, 527 U.S. at 604-07.
SUMMARY OF FACTS A. Louisiana’s Long-Term Care System
The Medicaid program is a medical assistance program cooperatively funded by the federal and state governments. See Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985); 42 U.S.C. § 1396 et seq.. The Louisiana Department of Health and Hospitals (“DHH”) is the “single state agency” that administers Louisiana’s Medicaid program. (Defs.’ Mem. at 3); see also 42 U.S.C. § 1396a(a)(5). The Office of Aging and Adult Services (“OAAS”), which is within DHH, directs the management and administration of services for long-term care of the elderly and persons with adult onset disabilities in Louisiana. (Ex. 1 to Defs’ Mem., Declaration of Hugh R. Eley (“Eley Decl.”) ¶ 1). These services include those provided in public and private nursing facilities and several programs providing home and community-based services
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(“HCBS”), which allow recipients to remain integrated in the community and receive services at
home. (Id. ¶¶ 1, 7-13.)
In fiscal year 2009, Louisiana spent nearly $717 million on reimbursement for care
provided in private nursing facilities, serving a population of 30,137 individuals. (Ex. 1 to Pls.’
Mem., Transcript of Deposition of Hugh Eley (“Eley Dep.”), p. 216, ll. 12-15; Doc.
Pitts_0001188, attached to Pls.’ Mem. at DKT 38-5 (“Pitts_0001188”), pp. 179-180.) By
contrast, in fiscal year 2009, the State spent approximately $313 million on its various HCBS
programs, serving a population of 14,798 individuals. (Pitts_0001188.) OAAS administers four
primary HCBS programs: the LT-PCS program, two “waivers” authorized by the federal Centers
for Medicare and Medicaid Services (“CMS”),3 and the Program for All Inclusive Care for the
Elderly (“PACE”) . (Eley Decl. ¶ 7.)4
While Louisiana serves fewer than 6,000 individuals through its two waiver programs5
and the PACE program,6 Louisiana’s LT-PCS program provided home and community-based
3 The waiver authority permits the Secretary of Health and Human Services, or her designee, to waive certain requirements of the Medicaid Act in order for the state to offer home and community-based services. See 42 U.S.C. § 1396n(c)(3); 42 U.S.C. §1396n(d)(3). 4 Defendants note in their brief that Louisiana participates in the federal “Money Follows the Person” demonstration program. (Defs.’ Mem. at 8.) The Money Follows the Person program provides enhanced federal financial participation to assist states in transitioning currently institutionalized individuals into the community. See Pub. L. 109-171, Title VI, § 6071, Feb. 8, 2006, 120 Stat. 102. To be eligible to participate in the program, an individual must reside in a nursing facility for at least 90 days. See Pub.L. 111-148, Title II, § 2403(a), (b)(1), Mar. 23, 2010, 124 Stat. 304. The program does not provide any additional “slots” in the Defendants’ HCBS programs. 5 Louisiana’s Elderly and Disabled Adults (“EDA”) waiver program has been approved by CMS to offer 4,603 “slots.” (Eley Decl. ¶ 18). The Adult Day Health Care (“ADHC”) waiver program, which provides at least five hours of care per day for one or more days per week in an adult day care center, is also capped at 825 “slots” and is available only to individuals within a geographically limited area surrounding each center. (Id. ¶¶ 22, 25.) Because each of the slots in these waivers is currently occupied, the state operates a “Request for Services Registry,” which is a waiting list for services for each of the waiver programs. (Id. 18, 25.) 6 The PACE program operates out of two State-run centers in New Orleans and Baton Rouge. (Eley Decl. ¶27.) Services from each PACE center are only available to individuals over the age of 55 who live within a geographically-limited area surrounding the center and who require a nursing facility level of care. (Id.) The program is also space-limited, serving a maximum of 380 individuals. (Id.) None of the named plaintiffs is eligible
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services to more than 12,000 individuals in fiscal year 2009-10. (Eley Decl. ¶ 35.) The LT-PCS program provides reimbursement for medically necessary assistance with activities of daily living (“ADLs”), including eating, bathing, dressing, grooming, transferring, ambulation and toileting. (Id. ¶ 31.) Services also include assistance with instrumental activities of daily living (“IADLs”), such as housekeeping, food preparation and storage, shopping, laundry, scheduling medical appointments, accessing transportation, and medication reminders. (Id.) To be eligible for services in the LT-PCS program, an applicant must meet the program’s criteria for medical necessity, which, for individuals not currently in a nursing facility, include (1) meeting the medical standards for admission to a nursing facility, and (2) being assessed as at risk of nursing facility placement. (Id. ¶ 32.) Because LT-PCS is a service provided through the State’s Medicaid State Plan for Medical Assistance, rather than through a waiver, there is no limit on how many eligible individuals may receive LT-PCS, and there is therefore no waiting list for LTPCS services. (Id. ¶ 33.)
At its inception in 2004, the LT-PCS program provided up to 56 hours of personal care hours per week. (Eley Decl. ¶ 36.) In March 2009, pursuant to a modification of the Barthelemy settlement agreement,7 and to bring the State’s EDA waiver program into compliance with federal law requiring cost-neutrality of waiver programs, Defendants reduced the maximum number of hours of LT-PCS services to 42 hours per week. (Eley Dep., p. 66, l. 9 – p.67, l. 17); see also 35 La. Reg. 32-34 (Jan. 2009). In September 2010, Defendants announced another reduction in the number of maximum available weekly LT-PCS hours from 42 to 32. 36 La.
for this program, either due to their age or because they do not reside within the geographic area served by either of the centers. (See Pls.’ Mem. at 16-17). 7 OAAS developed each of its current HCBS programs in part to comply with the requirements of a 2001 settlement agreement in the lawsuit Barthelemy v. Hood, No. 00-1083 (E.D. La.). (See Eley Decl. ¶ 13; Ex. 14 to Pls.’ Mem., Barthelemy Settlement Agreement, at 9-12, 16-17.)
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Reg. 1752 (Aug. 2010.) The new cap on the number of available hours will take effect when each recipient receives his or her annual reassessment, in which the number of weekly hours of service is determined.8 (Eley Decl. ¶ 37.) There are no exceptions to Defendants’ 32-hour cap on LT-PCS hours for individuals who require additional hours to prevent their institutionalization. (Eley Decl. ¶39.) According to the Defendants, approximately 28% of the individuals receiving services in the LT-PCS program (all people currently receiving over 32 hours) will be affected by the new cap on weekly hours. (Id. ¶ 37.) Defendants admit that LTPCS services are less costly than nursing facility services. (Exhibit 16 to Pls.’ Mem., Letter from Caroline Brown dated March 4, 2011, at p. 2, ¶4.) Defendants believe that the cut in the maximum available hours will save the State approximately 1.6% in its overall budget for HCBS services. (Eley Decl. ¶ 41.)
B. Plaintiffs Reside in the Community and Depend Upon Personal Care Services for Their Essential Needs The named Plaintiffs, Helen Pitts, Kenneth Roman, Denise Hodges, and Rickii Ainey,
and proposed class member Cleo Lancaster, are qualified individuals with disabilities who are eligible for and receive services through Defendants’ Medicaid program. (See Ex. 3 to Pls.’ Mem., Declaration of Helen Pitts (“Pitts Decl.”) ¶ 13; Ex. 4 to Pls.’ Mem., Declaration of Kenneth Roman (“Roman Decl.”) ¶ 7; Ex. 5 to Pls’ Mem., Declaration of Denise Hodges (“Hodges Decl.”) ¶ 8; Ex. 6 to Pls.’ Mem., Declaration of Rickii Ainey (“Ainey Decl.”) ¶ 19; Ex. 7 to Pls.’ Mem, Declaration of Cleo Lancaster (“Lancaster Decl.”) ¶ 12.) Each currently receives services through Defendants’ LT-PCS program and, because of their participation in this program, is able to reside in their own home in the community. (Pitts Decl. ¶¶ 22-23; Roman
8 Only Plaintiff Rickii Ainey’s and putative class member Cleo Lancaster’s reassessment dates have been reached. (Pls.’ Mem. at 4, n. 11.) The parties have reached a temporary agreement maintaining their services at prior levels, rather than requiring plaintiffs to seek preliminary relief from this Court. (Id.)
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Decl. ¶¶ 19-20; Hodges Decl. ¶¶ 9, 16; Ainey Decl. ¶¶ 28-29; Lancaster Decl. ¶¶ 13, 16.) Each has been individually assessed by Defendants to require the level of care available in a nursing facility and to receive a certain number of LT-PCS hours to prevent them from entering into a nursing facility. (Pitts Decl. ¶ 15; Roman Decl. ¶¶ 19-20; Hodges Decl. ¶¶ 15-16; Ainey Decl. ¶¶ 27-28; Lancaster Decl. ¶ 13.) Each currently receives at least 39 hours of services per week in the LT-PCS program, and if Defendants’ reduction of the maximum number of available LTPCS hours is put into effect, will no longer be eligible to receive their current levels of services.9 (Pitts Decl. ¶ 22; Roman Decl. ¶ 20; Hodges Decl. ¶ 16; Ainey Decl. ¶ 28; Lancaster Decl. ¶ 13.)
ARGUMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists if a reasonable jury could return a judgment for the non-moving party based on the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 325; see also Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). If the moving party fails to meet this burden, the motion for summary judgment must be denied, “regardless of the nonmovant’s response.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (citing Quorum Health Res., L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 471 (5th Cir. 2002). In evaluating a
9 Since the filing of this lawsuit, Plaintiffs Helen Pitts and Denise Hodges, and proposed class member Cleo Lancaster, have been offered and accepted slots in Defendants’ EDA Waiver program, for which they have been on the waiting for over three years. (See Pls.’ Mem. at 5, n.16, 28, n. 148.) As of March 14, 2011, they had not started receiving services under the EDA waiver and were each still receiving services under Louisiana’s LT-PCS program. (Id.)
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motion for summary judgment, the court “construe[s] all facts and inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2005) (quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)).
Defendants have failed to establish that they are entitled to judgment as a matter of law. As discussed below, Plaintiffs have presented ample evidence of disputed issues of material fact as to whether Defendants’ reduction in available LT-PCS services will place them and others similarly situated at risk of institutionalization. Defendants have not demonstrated as a matter of law that Plaintiffs’ requested modification would fundamentally alter Defendants’ long-term care programs or Defendants’ purported plan for deinstitutionalizing individuals with disabilities. Lastly, Plaintiffs have a private right of action to enforce title II of the ADA, as interpreted by the integration regulation. The integration regulation is a valid and authoritative interpretation of title II of the ADA.
A. Disputed Issues of Material Fact Exist Regarding Whether Defendants’ Reduction in Available LT-PCS Hours Will Place Plaintiffs and Members of the Proposed Plaintiff Class at Risk of Institutionalization in Violation of the ADA
1. Policies that place individuals with disabilities at risk of institutionalization violate the ADA
Defendants argue that Plaintiffs’ allegations that the alterations to the LT-PCS program will place them at risk of institutionalization “are not equivalent to allegations of systemic ‘unjustified isolation’ under Olmstead.” (Defs.’ Mem. at 20; Defs.’ Reply at 12-16.) But, as numerous courts have recognized, policies that place individuals with disabilities at risk of institutionalization are discriminatory under the ADA.10
10 Defendants’ assertion that Plaintiffs have not stated a claim for relief under the ADA or Rehabilitation Act because the ADA does not “require states to provide a certain level of benefits to individuals with disabilities” is equally without merit. (Defs.’ Mem. at 16.) While the ADA does not mandate what specific services a state must offer, it does require states to refrain from adopting policies or engaging in practices that discriminate, including
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In Fisher, for example, the State of Oklahoma adopted a policy of providing unlimited
coverage of medically necessary prescription drugs to individuals in institutions, but only limited
coverage for individuals receiving services in community-based waiver programs. 335 F.3d at
1177. Plaintiffs argued that, because of the policy change, many of the plaintiffs would be
placed at risk of institutionalization, remaining in their homes only “until their health ha[d]
deteriorated” and “eventually end[ing] up in a nursing home.” 335 F.3d at 1185. The Tenth
Circuit agreed, reversed the district court’s award of summary judgment to the state, and noted
that “nothing in the Olmstead decision supports a conclusion that institutionalization is a
prerequisite to enforcement of the ADA’s integration requirements.” Id. at 1181. The court
remarked that “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 the state policy under
the ADA’s integration mandate without first submitting to institutionalization.” Id. at 1182.
Similarly, in Brantley v. Maxwell-Jolly, the court concluded that “the risk of institutionalization
is sufficient[,]” to state a claim for violation of the integration mandate and granted the plaintiffs’
motion for preliminary injunction. 656 F. Supp. 2d 1161, 1170 (N.D. Cal. 2009). (quotation marks omitted).11
those that will render individuals at risk of institutionalization. See Radaszewski v. Maram, 383 F.3d 599, 614-15 (7th Cir. 2004); Fisher v. Oklahoma, 335 F.3d 1175, 1181 (10th Cir. 2003). 11 See, e.g., Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 985 (N.D. Cal. 2010) appeal docketed, No. 10-15635 (9th Cir. Mar. 24, 2010) and V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009), appeal docketed No. 0917581 (9th Cir. Nov. 18, 2009) (granting preliminary injunctions to plaintiffs facing risk of institutionalization because of reductions in various community-based services); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (holding that the “integration mandates of the ADA and § 504 apply equally to those individuals already institutionalized and those at risk of institutionalization”); Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034 (D. Haw. 1999) (individuals on waiting list for community-based services offered could challenge state’s administration of the program as violating title II’s integration mandate because it “could potentially force Plaintiffs into institutions”); Ball v. Rogers, No. CV 00-67, 2009 WL 1395423, at *5 (D. Ariz. Apr. 24, 2009) (holding state liable under the ADA for failure to provide adequate services to avoid unnecessary institutionalization); Crabtree v. Goetz, No. 3:080939, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008) (“Plaintiffs have demonstrated a strong likelihood of success on the merits of their [ADA] claims that the Defendants’ drastic cuts of their home health care services will force their institutionalization in nursing homes.”).
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Defendants suggest that LT-PCS recipients who are unable to remain in the community due to Defendants’ reduction in LT-PCS services can enter a nursing facility and, after 90 days, will be placed in a “priority” status to expedite receipt of services through the EDA waiver program. (See Defs.’ Reply at 19-21.) They thus dispute that “temporary institutional placements” are discriminatory. (Id.; Defs.’ Mem. at 20.) But even policies that risk temporary institutionalization are discriminatory under the ADA. See, e.g., Marlo M. v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010) (granting preliminary injunction where evidence demonstrated that plaintiffs would suffer regressive consequences if “even temporarily” returning to an institutional setting); Cruz v. Dudek, No. 10-23048, 2010 WL 4284955, at *3-7 (S.D. Fla. Oct 12, 2010) (granting preliminary injunction where state’s denial of communitybased services placed plaintiffs at risk of institutionalization and state had proposed entry into nursing home for sixty days prior to providing community-based services) (Order adopting Magistrate’s Report and Recommendation, Nov. 24, 2010, attached as Exhibit A); Haddad v. Arnold, No. 3:10-00414 (M.D. Fla. July 9, 2010) (granting preliminary injunction after finding that the plaintiff would suffer irreparable injury if forced to enter a nursing home) (Attached as Exhibit B). Just as long-term isolation and segregation in an institutional setting deprives an individual of his or her freedom to interact with others in the community, temporary unjustified institutionalization similarly disrupts the individual’s established life in the community, placing at risk the individual’s psychological, emotional, and physical wellbeing.
Thus, the ADA requires a state to reasonably modify policies to avoid placing individuals with disabilities at risk of even temporary institutionalization.
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2. Plaintiffs have submitted evidence of key issues of disputed material fact as to whether Defendants’ reduction in available LT-PCS hours will place Plaintiffs and others similarly situated at risk of institutionalization
Defendants’ alteration to the LT-PCS program lowers the maximum number of weekly available hours from 42 to 32. 36 La. Reg. 1752 (Aug. 2010). Plaintiffs each currently receive 39 or more hours of LT-PCS services per week and therefore their services will be reduced upon their yearly reassessment. (Pitts Decl. ¶ 15, 22; Roman Decl. ¶¶ 19-20; Hodges Decl. ¶¶ 15-16; Ainey Decl. ¶¶ 27-28; Lancaster Decl. ¶ 13.) Because of their disabilities, Plaintiffs rely on these services for medically necessary assistance with activities such as eating, bathing, grooming, toileting, transferring to and from bed, and cleaning after incontinence episodes. (See Pitts Decl. ¶¶ 24, 28; Roman Decl. ¶¶ 15, 18; Ex. 10 to Pls.’ Mem., Oct. 18, 2010 Letter from Alireza Minagar, M.D., (“Minagar Letter”) at 1; Ainey Decl. ¶ 5; Lancaster Decl. ¶¶ 17, 20.)
Plaintiffs have submitted substantial evidence demonstrating disputed issues of material fact regarding the effect of Defendants’ reduction in LT-PCS services. Each of the Plaintiffs’ treating physicians asserts that decreasing the availability of weekly personal care hours would place Plaintiffs at risk of deteriorating health conditions, increasingly frequent hospital and emergency room visits, and ultimately, institutional care. (See Ward Decl. ¶¶ 9, 11-15; Whitney Decl. ¶¶ 8, 11, 13; Minagar letter at 2; Ancira Decl. ¶¶ 9-10; Lafleur Decl. ¶¶ 15, 17.) The declaration of Mitchell LaPlante, PhD, a nationally-recognized expert in personal assistance needs of persons with disabilities, supports the assessments of Plaintiffs’ treating physicians. (See Ex. 24 to Pls.’ Mem, Declaration of Mitchell LaPlante, PhD (“LaPlante Decl.”) ¶¶ 1-7.) Dr. LaPlante attests that going without adequate levels of assistance compromises the safety, comfort, and hygiene of persons requiring help with ADLs and IADLs, which “reduc[es] their
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ability to live independently and increas[es] their risk of institutionalization and death.” (LaPlante Decl. ¶ 9-10.) Based on his review of Louisiana’s reduction of the available maximum number of hours in its LT-PCS program, he opines that the reduction is “of sufficient magnitude that it is likely to create unmet needs,” which will “increase institutionalization and other health care costs, including hospitalization costs, resulting from treating these unmet needs.” (Id. ¶ 23.)
Plaintiffs have thus submitted substantial evidence of disputed facts as to whether Defendants’ reduction in available LT-PCS services, which is without any exceptions process, threatens to place Plaintiffs and others similarly situated at risk of institutionalization. Defendants do not squarely dispute that Plaintiffs will be placed at risk, but rather strain logic to assert that, because a previous reduction in available hours from 56 to 42 hours per week did not lead to an overall increased rate of entry into nursing facilities, there is no reason to believe that the instant reduction will place those individuals whose services are reduced at risk of institutionalization. (See Defs.’ Mem. at 8-9; Eley Decl. ¶ 40; Defs.’ Reply at 10-11.) Unlike in the first service reduction, in which only 941 individuals were affected, the instant reduction allegedly will affect over 4,000 individuals. (Eley Decl. ¶ 37.) Defendants assert that from September to December of last year, only 512 of the affected individuals have had their services reduced. (Defs.’ Reply at 11.) Defendants assert that during the same period, the overall rate of institutionalization among LT-PCS recipients was 2%, but they decline to offer the rate of institutionalization for the 512 impacted individuals. (See Id.) As discussed above, Plaintiffs have submitted ample evidence, including the assessments of their treating physicians and declarations of experts who specialize in meeting personal assistance needs of individuals with disabilities, suggesting that many individuals subject to the instant reductions in LT-PCS
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services will be placed at risk of institutionalization. There thus remain issues of material fact in dispute as to the potential impact of Defendants’ reduction in LT-PCS services.
3. Disputed issues of fact exist as to Defendants’ efforts to make available alternative services to prevent Plaintiffs from being placed at risk of institutionalization after Defendants’ reduction in LT-PCS services takes effect
Defendants suggest that alternative, “more appropriate” services are available if LT-PCS services are inadequate to meet the Plaintiffs’ needs. (See Defs.’ Mem. at 21; Eley Decl. ¶ 35). The Plaintiffs have submitted evidence disputing the assertion that services will, in fact, be available for each of the Plaintiffs and proposed class members to prevent them from being institutionalized. For example, among Defendants’ other HCBS programs, each has a set cap on the number of enrolled individuals and a substantial waiting list. See supra at 6, n. 6. The EDA waiver program has identified “priority” groups for whom services may be made available on an expedited basis, but priority status is limited to individuals who are victims of abuse and neglect and those who enter a nursing facility and remain there for at least 90 days. (Id.) see also 36 La. Reg. at 2218 (establishing 90-day length-of-stay requirement to meet “priority” criteria for EDA waiver program). As of January 2011, for individuals who do not meet the State’s criteria for these priority groups, the waiting period to become enrolled in the EDA waiver program was over three years. (See Eley Dep., p. 78, ll. 7-19.) Should Plaintiffs wish to avail themselves of “priority” status, they would have to enter a nursing facility and remain there for, at a minimum, 90 consecutive days. (See id. p. 78, l. 7 – p. 79, l. 5.) As noted above, courts have considered the risk of even temporary institutionalization to be discriminatory under the ADA. See Marlo M., 679 F. Supp. 2d at 638; Cruz, No. 10-23048, 2010 WL 4284955, at *3-7; Haddad, No. 3:1000414 (M.D. Fla. July 9, 2010). Moreover, Defendants’ ADHC waiver program and the PACE program, in addition to being capped in size, limit enrollment to individuals within a geographic
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area served by the programs.12 (Eley Decl. ¶¶ 22, 25, 27.) Defendants have established no
safeguards or put plans in place to transition individuals to other programs to ensure that the
reductions at issue here do not place individuals at risk of institutionalization. (See Defs.’ Mem.
at 21.) And the Defendants have announced no plans to increase the size of these programs as
the reductions at issue take effect.13
In Brantley, a court rejected vague assurances, similar to those of the Defendant here,
made in rebuttal to the plaintiffs’ evidence that a reduction in adult day services would place
individuals at risk of institutionalization:
[T]he Court is persuaded by Plaintiffs’ concern that Defendants have failed to implement any means of ensuring that, if and when the cuts take effect, the necessary alternative services will be identified and in place . . . . . . . [Defendants] have taken an arguably cavalier approach to ensuring their continuing compliance with the ADA . . . . Defendants refuse to specify how they will ensure their continuing compliance with the ADA . . . in the event that the ADHC programs fail to comply with their “expectation” to secure alternative services for their participants. . . . D efendants certainly bear the burden of ensuring more than a “theoretical” availability of services.
656 F. Supp. 2d at 1174; see also Ball v. Rodgers, No. 00-cv-67, 2009 WL 1395423, at *5 (D.
Ariz. Apr. 24, 2009) (holding that defendants violated title II’s integration mandate by “fail[ing]
12 Defendants argue that all but one of the Plaintiffs are eligible for and reside within the service area covered by the ADHC waiver program. (See Defs.’ Reply at 17-18.) Even assuming these individuals would be able to avail themselves of Defendants’ ADHC services before being institutionalized, the remaining Plaintiff, Kenneth Roman, and presumably numerous class members, reside outside the geographic area served by ADHC-centers. The availability of the ADHC waiver program or other alternative services are disputed facts material to whether Plaintiffs are being placed at risk of institutionalization, thus this issue is inappropriate for disposition at the summary judgment stage.
13 Defendants point to two proposed, but not yet approved, waiver programs. (Defs.’ Mem. at 10-11.) One proposed waiver is designed to entirely supplant the existing EDA waiver and will offer several additional services, but will not add any slots to provide services to additional individuals. (Eley Dep., p. 117, ll. 4-16.) The other program, the proposed Adult Residential Care waiver, will add 200 slots of HCBS services to the State’s system, but it has not yet been approved by CMS. (Eley Dep., p. 92, ll. 1-3.) Pursuant to Defendants’ regulations, the ARC waiver program will provide reimbursement for 24-hour supervision in a DHHS-licensed facility. See 50 La. Admin. Code §§ 30101-30907. Participants in the ARC waiver program will not be able to remain in their own homes, as participants of the LT-PCS program are able to do. Id. The extent to which either of these programs may alleviate the Plaintiffs’ alleged risk of institutionalization is thus a disputed issue of fact and improper for disposition at the summary judgment stage.
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to provide adequate services to avoid unnecessary gaps in service and [because the]
institutionalization was discriminatory”); Fisher, 335 F.3d at 1181-84; Frederick L. v. Dep’t of
Pub. Welfare of Pa., 364 F.3d 487, 500 (3d Cir. 2004) (“[The State] must be prepared to make a
commitment to action in a manner for which it can be held accountable by the courts.”).
B. Defendants Have Not Established that the Plaintiffs’ Requested Modification is a Fundamental Alteration of their Programs
Defendants have the burden of proving that Plaintiffs’ requested reasonable modifications
would constitute a fundamental alteration of the State’s services. Olmstead, 527 U.S. at 603-04.
Plaintiffs’ requested modification to Defendants’ LT-PCS program is simple: that each of the
Plaintiffs and members of the proposed Plaintiff class retain their existing level of service in the
LT-PCS program, and to allow new enrollees to exceed the 32-hour cap (up to 42 hours), to the extent that the receipt of that level of service is necessary to prevent their institutionalization.14
(See Pls.’ Mem. at 31.)
As their primary fundamental alteration defense, Defendants assert that they entirely
avoid the ADA’s obligation to reasonably modify the State’s programs to avoid discrimination
because they allegedly have a comprehensive, effectively working plan to address unnecessary
institutionalization. (See Defs.’ Mem. at 2; 17-18.) In support of their argument, Defendants
point to home and community-based programs that the State offers other than the LT-PCS
program. (See Defs.’ Mem. at 2; 17-18.) The existence of these other programs, they incorrectly
contend, permits them to adopt policies that will place Plaintiffs at risk of institutionalization.
14 Defendants selectively quote Plaintiffs to assert that Plaintiffs “have not consistently articulated” the modification they seek. (See Defs.’ Reply at 22-23.) Their request, however, is merely to ensure that, subject to the prior maximum of 42 hours per week, current and prospective recipients of LT-PCS services are able to receive the lelvel of service necessary to remain in the community. (Pls.’ Mem. at 31.) Defendants misread Plaintiffs’ class definition when they suggest that Plaintiffs’ requested modification would allow the cap to be applied, without an exceptions process, to new enrollees. (See Compl. ¶ 97 (defining proposed class as “current and prospective recipients of Medicaid-funded services through the LT-PCS program… who are at risk of being forced to enter a nursing home because Defendants plan to reduce the level of community-based services.”).)
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(Id. at 17-18, 20.) This is both a fundamental misreading of the obligations imposed by the ADA
and a mischaracterization of the fundamental alteration defense.
The Court in Olmstead suggested that where a state has clearly demonstrated that it has in
place a “comprehensive, effectively working plan for placing qualified persons with . . .
disabilities in less restrictive settings, and a wait list that move[s] at a reasonable pace not
controlled by the State’s endeavors to keep its institutions fully populated” a federal court may
have no basis to order displacement of institutionalized persons at the top of a state’s waiting list
for community-based services. Id. at 605-06; see also Frederick L. v. Department of Public
Welfare of Pa. (“Frederick L. II.”), 422 F.3d 151, 157-59 (3d Cir. 2005); Sanchez v. Johnson, 416 F.3d 1051, 1063 (9th Cir. 2005); ARC of Washington, 427 F.3d at 619.15
The logic underpinning the comprehensive, effectively working plan defense is clear: a
federal court should not force a state to immediately expand services, or to permit individuals to
receive priority in deinstitutionalization or the receipt of community-based services because
those individuals “commenced civil actions,” Olmstead, 527 U.S. at 604, when, in light of its
obligations to all disabled individuals, the State can establish that it has a comprehensive,
effectively working plan to address its unnecessary reliance on institutional care. However, that
logic fails where, as here, a State seeks to reduce or eliminate services already in existence, and
upon which Plaintiffs depend to prevent their institutionalization. Indeed, it is difficult to
15 Courts have strictly interpreted the requirement that a state demonstrate it has in place a comprehensive, effectively working plan in offering an alleged fundamental alteration defense. See, e.g., Pennsylvania Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (requiring the state to demonstrate the existence of a plan before it may even raise a fundamental alteration defense); Frederick L. II, 422 F.3d at 157-59 (vacating district court ruling in favor of state defendants where fundamental alteration defense was premised on “vague assurance of future deinstitutionalization” rather than a meaningful commitment with measurable goals for community integration); Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 271 (E.D.N.Y. 2009) (rejecting state’s fundamental alteration defense where it does not “have a comprehensive or effective plan to enable [segregated] residents to receive services in more integrated settings, but instead was committed to maintaining the status quo) appeal docketed, No. 10-235-cv (L) (2d Cir. Jan. 20, 2010).
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imagine any scenario where placing individuals at risk of institutionalization by reducing their services could properly be considered part of a state’s comprehensive, effectively working Olmstead plan. If anything, the State undermines its own purported Olmstead plan by reducing the very services that maintain the Plaintiffs in the community.
The only Circuit Courts of Appeals that have addressed the issue of what constitutes a comprehensive, effectively working plan have done so in the context of requests to expand existing services for the purpose of either preventing plaintiffs’ institutionalization or expediting their transition out of a facility (as was the case of the Olmstead plaintiffs). See, e.g., Sanchez v. Johnson, 416 F.3d 1051, 1063 (9th Cir. 2005) (request to enhance reimbursement rates to community-based providers); ARC of Washington, 427 F.3d at 619 (request for expansion of existing HCBS waiver); Frederick L. II., 422 F.3d 151, (requested expansion of services to expedite deinstitutionalization). By contrast, Plaintiffs here do not seek to expand the number of HCBS programs that the State offers, or the number of slots in these programs. Rather, in the face of Defendants’ plan to drastically reduce the scope of one of the State’s core HCBS services, Plaintiffs seek only to ensure that the State does not alter its LT-PCS program in a manner that places them at risk of institutionalization.
Even if this Court were to hold that a fundamental alteration defense based upon a comprehensive, effectively working plan is a defense that can be properly raised in this case, the Plaintiffs have put forward substantial evidence disputing Defendants’ assertion that the State’s alleged plan for deinstitutionalization is actually “comprehensive” and “effectively working” and have raised a number of factual issues that contest Defendants’ asserted fundamental alteration defense. (See Pls.’ Mem. at 34-37; Pls.’ Mem. at 38; Pls.’ Separate Statement of Disputed Issues
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of Fact ¶¶ 5-7.) Accordingly, these issues are inappropriate for disposition at the summary
judgment stage.
C. Because the Integration Regulation Reasonably Interprets Title II of the ADA, It Is Enforceable Through Private Right of Action to Enforce the Statute
Defendants argue that Plaintiffs have no right of action to enforce the integration mandate
because that mandate is codified in regulations implementing title II of the ADA. (See Defs.’ Repl. Br. at 34-35.)16 This argument misunderstands the nature of regulations such as those
implementing title II. The Supreme Court in Alexander v. Sandoval, 532 U.S. 275, 285 (2001),
held that regulations that implement a statutory prohibition are “covered by the cause of action to enforce that [statutory] section.”17 As the Court explained:
Such regulations, if valid and reasonable, authoritatively construe the statute itself, and it is therefore meaningless to talk about a s eparate cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well.
532 U.S. at 284 (citations omitted); see also S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 607 (5th
Cir. 2004); Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 905-913 (6th Cir.
2004). Thus, if the regulations implementing title II – including the integration mandate – are
valid and reasonable, they are enforceable to the same extent as the statute itself.
As outlined above, pp. 3-5, Congress directed the Attorney General to issue regulations
implementing title II, 42 U.S.C. § 12134; consistent with the goals of eliminating the forms of
discrimination identified by Congress, the Attorney General has done so. See 28 C.F.R. Part 35.
16 Defendants have not challenged the enforceability of title II itself; it is well established that title II is enforceable through a private right of action. Barnes v. Gorman, 536 U.S. 181, 185 (2002). 17 The holding in Sandoval was that the disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. may not be enforced through the private right of action to enforce the statute, because those regulations did not apply the statute’s ban on intentional discrimination. 532 U.S. at 284-85. That conclusion does not apply to title II’s integration regulation because that regulation directly applies the statute’s ban on discrimination, for the reasons expressed in the text of this brief.
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The Supreme Court has held that where “Congress explicitly delegated authority to construe the statute by regulation,” courts “must give the regulations legislative and hence controlling weight unless they are arbitrary, capricious, or plainly contrary to the statute.” United States v. Morton, 467 U.S. 822, 834 (1984); see also NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-57 (1995). In Olmstead, the Supreme Court noted that, “[b]ecause the Department [of Justice] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” 527 U.S. at 597-98 (internal citations omitted). The title II regulations, the Court acknowledged, “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Id. at 598.
On its face, the integration regulation, 28 C.F.R. §35.130(d), is a reasonable implementation of title II. It is clear from the text of the ADA that Congress intended its prohibition on disability-based discrimination to encompass a prohibition on the isolation and segregation of individuals with disabilities. In the “Findings” section of the statute, Congress defines the “forms of discrimination” it seeks to eliminate as including “isolat[ion]” and “segregation.” 42 U.S.C. §§ 12101(a)(2), (a)(5). Indeed, the Supreme Court in Olmstead relied in part on these very findings, holding that prohibiting “unjustified isolation” is “properly regarded” as part of prohibiting “discrimination based on disability.” 527 U.S. at 597, 600. Because the integration mandate directly implements Congress’ prohibition on this type of discrimination, it is a valid construction of title II and may be enforced by a private right of action to enforce title II. Helen L. v. DiDario, 46 F.3d 325, 331-33 (3d Cir. 1995); see also Arc of Washington, 427 F.3d at 618 (finding that Title II’s integration mandate “serves one of the principal purposes of Title II of the ADA: ending the isolation and segregation of disabled persons”); Townsend v. Quasim, 328 F.3d 511, 516 (9th Cir. 2003) (“The Department of
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Justice’s integration regulation implements the isolation and segregation concerns that, in part, underlie Title II.”)
Thus, Plaintiffs have properly asserted a cause of action, relying on the ADA’s broad prohibition of discrimination, authoritatively interpreted by the Attorney General’s integration regulation, 28 U.S.C. § 35.130(d), and by the Supreme Court in Olmstead. 527 U.S. at 607. The discrimination contemplated by Congress in enacting title II, and recognized in Olmstead— unnecessarily relegating individuals with disabilities to segregated facilities—is exactly what Plaintiffs face if they are placed at risk of unnecessary institutionalization by Defendants’ reduction in services in the LT-PCS program.
CONCLUSION For the foregoing reasons, this Court should deny Defendants’ converted Motion for Summary Judgment.

Dated: April 7, 2011

UNITED STATES OF AMERICA, by

DONALD J. CAZAYOUX, JR. United States Attorney

THOMAS E. PEREZ Assistant Attorney General SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General JOHN L. WODATCH Deputy Assistant Attorney General

Civil Rights Division

RENEE M. WOHLENHAUS Acting Section Chief KATHLEEN WOLFE Acting Special Legal Counsel ALISON N. BARKOFF Special Counsel for Olmstead Enforcement

22 Case 3:10-cv-00635-JJB -SCR Document 42 04/07/11 Page 22 of 23

/s/ James L. Nelson James L. Nelson, LBN 9934 Assistant United States Attorney 777 Florida Street, Suite 208 Baton Rouge, Louisiana 70801 Telephone: (225) 389-0443 Fax: (225) 389-0685 Jim.Nelson@usdoj.gov

/s/ Regan Rush REGAN RUSH AMANDA MAISELS Trial Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, DC 20530 Tel: (202) 305-1321 Fax: (202) 307-1197 Regan.Rush@usdoj.gov Amanda.Maisels@usdoj.gov
Counsel for the United States

23 Case 3:10-cv-00635-JJB -SCR Document 42 04/07/11 Page 23 of 23

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, ET AL
VERSUS
BRUCE GREENSTEIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ET AL

CIVIL ACTION NO. 10-635-JJB-SR

RULING ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION This matter is bef ore the Court on Plaintiffs’ Motion (doc. 30) for Class Certification. Defendants have filed an opposition (d oc. 32) to which Plaintiffs have filed a reply (doc. 33). There i s no need f or oral ar gument. This Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331.
Background I. Facts
This case arises out of the State of Louisiana’s decision to lower the maximum number of home-and-community-based health service (“HCBS”) hours available to its di sabled citizens. Since 2003, Loui siana has offer ed HCBS to disabled individuals through its long-t erm personal care ser vices (“LT-PCS”) program. The LT-PCS program provides disabled individuals with personal care workers to a ssist them in performing basi c tasks that they would ot herwise be unable to perform, such as personal car e or household chores. Those who do not qualify for LT-PCS, or seek additional or alternat ive services, may enter one

1

of the State’s waiver programs. Howe ver, each program suffers from limited slots, geographical or age limits, and/or waiting lists.
In September 2010, in order to add ress budgetary concerns, the State passed Act 490, which lowered the maximum weekly LT-PCS service hours from 42 to 32 (doc. 36, ex. 1, pp. 11, 66-67). The cut app lies not only to new LT-PCS recipients but al so to indi viduals currently receiving assistance when they undergo their annual eligibility assessments.
II. Procedural History On September 22, 2010, Plai ntiffs filed sui t against the Louisiana
Department of Health and Human Services (“LADHHS”) and its Secretary, Bruce Greenstein, seeking declaratory and injunctive relief (doc. 1). Plaintiffs assert that the reduction in LT -PCS hours unlawfully discriminates against disabled individuals by depriving them of at- home assistance necessary to rem ain “integrated” into t he community in viol ation of the Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 (2010), and Section 504 of the Rehabilitation Act of 1973 (“S ection 504”), 29 U.S.C. § 794(a) (2010). Plaintiffs request that the Court order Defendants to return to the 42-hour weekly maximum.
On December 20, 2010, Plaintiffs filed their Motion (doc. 30) for Class Certification. Plaintiffs provided the following class definition:
Louisiana residents with disabilities who are recipients or prospective recipient s of Medicaid-funded services through the LT-PCS program; who desire to continue to
2

reside in the community instead of in a nursing facility; who can reside i n the co mmunity with appr opriate Medicaid-funded LT-PCS services; and who are at risk of being forced t o enter a nurs ing home bec ause Defendants plan to reduce t he level of communitybased services.
(doc. 30, p. 1). Plai ntiffs assert that the class, as defined, satisfies Federal Rule of Procedure 23 for class certification.
On January 10, 2011, Defendant s filed their oppositi on (doc. 32). Defendants assert that the proposed class definition is overly broad. Defendants also assert that the named plaintiffs’ claims and the defens es likely to be asserted against them are not typical of the remaining class members. Finally, Defendants assert that the named pl aintiffs have conflicting interests with the remaining class members and so will not fairly and adequately represent their interests.
On January 25, 2011, Plaintiff s filed their reply (doc. 33). Pl aintiffs assert that the class is not overly broad. Plaintiffs also assert that the na med plaintiffs’ claims and defenses are sufficiently typical to the remaining c lass members and that the named plaintiffs will fairly a nd adequately represent the remaining class members.
Discussion I. The proposed class definition
Defendants assert t hat the proposed class i s overly broad bec ause it includes individuals who (1) do not require more than 32 hours of weekly service;
3

(2) require more than 32 hou rs of weekl y service, but have access to waiver
programs, financial resources or other means to secure supplemental care; and
(3) require more t han 42 hours of weekly service (doc. 32). Defendants assert
that the cl ass should be defined to e xclude these individuals and propos e the
following class definition:
Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead of a nursing facility; who re quire more than 32 and less than 42 hour s of Medicaid-funded per sonal care services per week i n order to avoid ent ering a nursing facility, and who do not have available (including through family supports, shar ed living arrangements, or enrollment in the ADHC waiver) other means of receiving personal care services.
(doc. 32).
Plaintiffs concede t hat the class definition should not i nclude individuals
who do not need more than 32 hour s of weekl y service (doc. 33). However,
Plaintiffs disagree t hat the cl ass should exclude individuals who require mor e
than 42 hours per week of service. Plaintiffs also assert that the class should not
exclude individuals who have access to the necessary supplemental care.
The Court finds that the class should be defined to (1) exclude individuals
who do not require at least 32 hours of weekly ser vice; (2) exclude indivi duals
who are capable of recei ving the ne cessary supplemental care through
alternative sources; and (3) include individuals who require over 42 hours of care
per week. The Loui siana Administrative Code, states that “[t]he mission of [ LT-
4

PCS] is to supplement the family and/or community supports that are available to maintain the recipient in the community” and that “[it] is not intended to be a substitute for available family and/or communit y supports.” La. Admin. Code tit. 50, § 34 12901 (20 10) (emphasis added). T herefore, whether a recipient has access to other means of care shoul d be considered in defining the cl ass, keeping in mind that the St ate has necessarily det ermined that c urrent LT-PCS recipients lack access to supplemental care.
However, individuals requiring over 42 hour s of care per week shoul d be included in the c lass. T he ADA’s an d Section 504’ s “integration mandate” prohibits a stat e from increasi ng an indi vidual’s risk of institutionalization if reasonable accommodations are available. Olmstead v. L.C. ex rel Zimring , 527 U.S. 581, 597, 604, 607 ( 1999). Indi viduals requiring more t han 42 hour s of weekly LT-PCS and who have managed to remain out of nursing facilities have necessarily found access to supplemental care. If these individuals are suddenly forced to mak e due with 10 less hours of weekly as sistance, the supplement al care they have secured may no longer be suffic ient to av oid institutionalization. As such they almost certainly face a risk of institutionalization due the reduction and, in all likelihood, face a gr eater risk than those requirin g between 32 and 42 hours of weekl y service. Therefore, the Court adopts the foll owing class definition:
Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead
5

of a nursing facility; who require more than 32 hours of Medicaid-funded personal ca re services per week in order to avoid entering a nursing facility, and who do not have available (including through family supports, shared living arrangements, or enrollment in the ADHC waiver) other means of r eceiving personal care services.
II. Federal Rule of Civil Procedure 23
Plaintiffs assert that they meet F ederal Rule of Civil Procedure 23’s
requirements for class certif ication (doc. 30). Def endants assert that the named
plaintiffs’ claims and possible defenses thereto are not typical of the remaini ng
class members (doc. 32). Defendants also assert that the named plaintiffs will
not fairly or adequately represent the interes ts of the remaining class members
(doc. 32).
The class-action device was designed as a way to efficiently litigate cases
involving issues common to a large group of individuals and turning on questions
of law that appl y to each member of the gr oup. Gen. Tel. Co. of the S. W. v.
Falson, 457 U.S. 147, 155 ( 1982). I n determining whether to certif y a cl ass, a
district court maintains substantial discretion. Id. To qualify for class relief under
the Federal Rules of Civil Pr ocedure, the plaintiffs must satisfy ea ch of R ule
23(a)’s requirements and at least one of Rul e 23(b)’s requirements. Rule 23(a)
states:
One or more members of a class may sue or be sued as representative parties on behalf of all only of (1) the class is so n umerous that joinder of all members i s impracticable, (2) t here are questions of law or fac t common to the class, (3) the claims or defenses of the
6

representative parties are typical of the clai ms or defenses of the cl ass and (4) the representative parties will fairly and adequately pr otect the interests of the class. Fed. R. Civ. P. 23(a). Rule 23(b)(2) states that “[a] class action may be maintained if . . . the part y opposing the cl ass has acted or refu sed to a ct on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” A. Numerosity Plaintiff asserts that the “numeros ity” requirement is met because it is impracticable to join each of the indivi dual members of the class. Plaintiff asserts that joinder is impr acticable because of the sh eer size of the cla ss and because the class may include future members. In addition, the class members are geographically dispersed and many lack sufficient financial resources to bring suit individually. Defendants do not contest that the proposed class is sufficiently numerous. There is no magic number for determining when a class is suffi ciently numerous for purpos es of F ederal Rule of Civil Procedure 23. See Mullen v. Treasure Chest Casino, L.L. C., 186 F. 3d 620, 624 (5t h Cir. 1999) (stating that classes with over one hundred member s generally suffice). The primar y consideration for courts is the practicality of joining the members of a proposed class. Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981). The practicality of joining members of a class i s based on a number of factors
7

including the sheer si ze of the class and whether the class will include future members. Id. at 1039.
The Court finds that the proposed clas s is sufficiently numerous. Twentyeight percent of the 12,000 indivi duals currently receiving LT-PCS services receive in excess of 32 hours per week (doc . 11, ex. 2, ¶ 37). It would be nearly impossible to join t he over 3,300 cases were they to be f iled individually. In addition, there are countless potential future members of the class who have not yet qualified for LT-PCS who may wish to preserve their rights. Finally, many of the proposed class members face severe financial hardship bec ause of their conditions. These class members lack the financial resources necessary to bring suit individually in order to vindicate thei r rights. Therefor e, Court finds that the “numerosity” requirement is satisfied.
B. Commonality Plaintiffs assert that there are common issues of law and fact as to each of the class members, such as (1) whether Defendants violate the ADA or Section 504’s integration mandate by lowering the maximum weekly services hours from 42 to 32; or (2) whether Defendants vi olate the ADA or Section 504 by requiring individuals to submit to a 90-day stay in a nursing facility to immediately qualify for critical, supplemental ser vices (doc. 30). Plai ntiffs assert that differences in each member’s condition or the specific services each member requires do not defeat a finding of commonality. Defe ndants do not contest t hat there are questions of law and fact common to the putative class members (doc. 32).
8

Federal Rule of Civi l Procedure 23 requires that there be ques tions of law and fact that ar e common to each of the proposed class members. See Mullen, 186 F.3d at 625 (st ating that the commonality requirement is sati sfied if there is at least one issue, the resolution of whic h will affect a signif icant number of the putative class members); Lightbourn v. Cnty. of El Paso , 118 F.3d 421, 426 (5th Cir. 1997) (same).
The Court finds that there are questions of law and fact common to each of the putative class members. The cl ass includes all “Louis iana residents with disabilities who have been receiving Medi caid-funded services through the LTPCS program” and “who r equire more than 32 hours of Medic aid-funded personal care services per week in order to avoid entering a nursing facility.” Any individual falling in this class is at risk of bein g forced to en ter a nursing home as a result of the reduction. The overriding questi on of law in the case is whether this risk violates the ADA’s integration mandate. Moreover, whether the State’s waiver programs are sufficient to pick-up slack created by the reduction is a question of fact common an d significant to all of the putative class members. Because common questi ons of law and fact exist, the Court finds that the “commonality” requirement is satisfied.
C. Typicality Plaintiffs assert that the named plaintiffs’ clai ms are typical to the remaining class members because (1) the propos ed reduction in LT-PCS hours exposes class members to an increased risk of institutionalization, and all class
9

members would assert that doing so vi olates the ADA and Section 504’ s integration mandate; and (2) all the class members woul d assert that the State’ s waiver programs provide supplemental services that are insufficient to avoid this risk; and (3) all cla ss members would assert that, though an indivi dual may immediately receive sufficient supplemental services by submitting t o a 90- day stay in a nursing facility, this requirement violates the ADA and Section 504 by requiring institutionalization (doc. 30).
Defendants assert t hat they anticipa te advancing defenses to the named plaintiffs’ claims that are at ypical to the remaining members of the class (doc. 32). For i nstance, Defendant asserts that (1) unlike most other member s of the class, (1) Ainey was offered but declined placement in one of the State’s waiver programs and therefore contributed to her risk of bein g institutionalized; (2) Pitts never sought placement in a waiver progr am and therefore her bei ng institutionalized is not unju stified; (3) Hodges has be en offered placement in a waiver program and her claim is therefore moot.
In reply, Plaintiffs assert that the in dividual circumstances cited for each of the named plaintiffs are either mischaracterized or irrelevant (doc. 33).1
Federal rule of Civil Procedure 23( a) requires that the claims or defenses of the representati ve parties are typical of the c laims or defens es of the c lass. That is, the named r epresentatives must advance claims and defenses that are
1 For instance, Plaintiffs assert that Aine y declined placement in a waiver program in 2004 because she was on bette r financial footing and tha t her doin g so is irrelevan t to whether she is currently at risk of institutionalization. Plaintiffs also assert that Pitts and Hodges are still on waiting lists for the EDA waiver program (doc. 33, ex. 8, ¶¶ 2-4).
10

similar, though not identical, to the claims and defenses that the remaining class members would advance were they to individually file parallel suits. Lightbourn, 118 F.3d at 426. According to district courts throughout the Fifth Circuit, the test for typicality is not demanding. See, e.g., id. That said, if th e facts surrounding the named plai ntiff are suffi ciently different than othe r members of the cla ss, a district court may deny class certification. See, e.g., Warren v. Re serve Fund, Inc., 728 F.2d 741, 747 (5 th Cir. 1984). Courts ma y do so on the grounds t hat representation of the class will suffer if the named plaintiff is preoccupied with a defense which is applic able only to himself. J. H. Cohn & Co. v. Am. Appr aisal Assocs., Inc., 628 F.2d 994, 999 (7th Cir.1980).
The Court finds that the named plaintiffs’ claims and the defenses to which they are subject ar e sufficiently typical to the claims and defenses applicable to the remaining class members. First, whether and why th e named Plaintiffs failed to avail themselves of the State’s waiver programs is reasonably in dispute. It is quite possible that Plaintiffs did not require additional services when receiving 42 hours of car e per week, but now do as a result of the reducti on. Mor e importantly, the “typicality” test is “n ot demanding,” and the parties’ claims and defenses must be merel y “typical,” not “identical.” Lightbourn, 118 F. 3d at 426. Here, the named plaintiffs and remaining class members each claim that (1) the reduction in servi ce hours i ncreases their risk of institutionalization; (2) the waiting lists for the State’s waiver programs do not move fast enough to prov ide the supplemental care they require to avoi d institutionalization; and (3) they must
11

submit to the very type i nstitutionalization they seek to av oid in order to be moved up the waiti ng lists. Because t he named plaint iffs’ and remaining class members’ claims are sufficiently similar, the Court finds that the “typicality” requirement is satisfied.
D. Fair and adequate representation by the class representatives Plaintiffs assert t hat the named plai ntiffs will fairly and adequately represent the remaining cl ass members (doc. 30). Plaintiffs assert that the named plaintiffs and rema ining class members share the common interest in returning to the 42-hour maxi mum. I n addition, Plaintiffs assert that the named plaintiffs will necessarily and vigorously protect the remaining members’ claims because the two groups’ claims are so factually and legally similar. Defendants assert t hat some of the named plai ntiffs will not fairly and adequately represent the r emaining members of the class because (1) som e named plaintiffs may be placed into wa iver programs sooner than they would have been absent the ne w rules and may not wi sh to invalidate them; 2 (2) class members may confl ict as to whether t he State should offer great er services, thereby risking that t he State will eventually eliminat e the program altogether for financial reasons or should offer lesser, more sustainable services (doc. 32). In reply, Plaintiffs assert that the alleged conflicts are too speculative to justify the Court in denying class certification (doc. 33)
2 Defendants assert that Act 490 not only lowered the maximum weekly hours of service from 42 to 32, but also made certain waiver programs easier to enter. As such, class members who more easily entered a waiver program as a result of the Act, and thu s had thei r care a dequately supplemented, may not vigorously pursue having the Act invalidated.
12

Federal Rule of Civil Procedure 23 requires that “the representative parties will fairly and adequately pr otect the interests of the class.” The Supreme Court of the United States has stated that “the adequacy-of-representation requirement ‘tends to merge’ wit h the commonality and typicality crit eria of Rule 23(a), whic h ‘serve as guideposts for determining whether . . . main tenance of a c lass action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the intere sts of the class members w ill be fairly and adequately protected in their absence. Amchem Prods., Inc. v. Win dsor, 521 U.S. 591, 626 n. 20 (1997). In determi ning the adequa cy of representation, c ourts consider whether and t o what exte nt the class representati ves have common and/or antagonistic interests to the remaining members of the c lass, and only differences which create conflicts of int erests between the named pl aintiffs and the remaining class member s render representation inadequate. Id. at 614; Mullen, 186 F.3d at 625- 26. Finally, Cour ts may consider whether the named plaintiffs have retained qualified counsel. Amchem Prods., 521 U.S. at 614.
The Court finds that the named plaintiffs will fair ly and adequately protect the interests of the remaining class members. Plaintiffs have only challenged the cut in weekly LT-PCS service hours, not the State’s method of attendi ng to the waiting lists for its waiver programs. Though some indi viduals may enter a waiver program faster than they would have without the corresponding diminution in weekly service, Defendants have faile d to demonstrate that this has occurred in fact. In addition, De fendants correctly state that som e class members may
13

prefer to r eceive lesser ser vices than others if ne cessary to make the LT-PCS program more sust ainable. However, the suit m akes clear the inter est of t he class: to return to a 42-hour weekly maximum. Issues r elating to the program’s economic viability are pertinent only to w hether such a return would constitute a “reasonable accommodation” or a “fundamental alteration” to the proposed 32hour maximum.
In addition, the Court finds that the named plaintiffs have r etained sufficiently competent counsel. Lead counsel, Nell Hahn, is an employee of the Advocacy Center, an or ganization that advocates fo r disabled i ndividuals in Louisiana. Hahn has practiced law for over 30 y ears and has part icipated in a number of class action suit s. In addit ion, Co-Counsel Stephen F. Gold i s a nationally recognized expert in litigatio n involving the rights of disabl ed individuals and has over 40 years of experience in that field. Therefor e, the Court finds that the named plaintiffs will fairly and adequately protect the interests of the remaining class members.
E. Actions generally applicable to the class Plaintiffs assert t hat the St ate’s action applies to th e class generally because each member will be subject to the 32-hour weekly maximum (doc. 30). Defendants do not challenge Plaintiffs’ assertion (doc. 32). Federal Rule of Procedur e Rule 23(b)(2) states that “[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has acted or refused to act on gr ounds that apply generally to the class, so that final
14

injunctive relief or corresp onding declaratory relief is appropriate respecting t he class as a whole.” The term “generall y,” as its used in Rul e 23(b)(2), requires only that the Defendants acti ons affect all similarly situated persons or apply to the class as a whol e. Johnson v. Am . Credit C o., 581 F. 2d 526, 532 (5t h Cir. 1978).
The Court finds that the State has acted on grounds that apply generally to the class such that injunctive or declaratory relief would be appropriate. The 32hour weekly maximum plainly applies, not only to members of the class, but to all Louisiana citizens seeking HCBS. As such, Plaintiffs’ suit satisfies Rule 23(b)(2).
Conclusion Accordingly, the Court hereby GRANTS Plainti ffs’ Motion (doc. 30) for Class Certification. In ad dition, the Court adopt s the class definition stated on pages five (5) and six (6) of this Ruling. Signed in Baton Rouge, Louisiana this 6th day of June, 2011.
S
JUDGE JAMES J. BRADY UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
15

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

KENNETH ROMAN, RICKII AINEY, *

and ELIZABETH FOSTER

*

on behalf of themselves and all others

*

similarly situated,

*

*

Plaintiffs,

*

*

v.

*

*

BRUCE GREENSTEIN, in his official *

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

LOUISIANA DEPARTMENT OF

*

HEALTH AND HOSPITALS,

*

*

Defendants

*

CA. NO. 3:10-cv-00635-JJB-SCR
JUDGE BRADY MAGISTRATE JUDGE RIEDLINGER CLASS ACTION

__________________________________ COMPLAINT IN INTERVENTION

INTRODUCTION

1. This civil rights action seeks to prevent hundreds of low-income people with

severe disabilities from losing services that they have been receiving to live in the

community and to prevent them from being institutionalized in nursing facilities.

Defendants have assessed each of these people, have determined that each meets the

Louisiana nursing facility level of care, and have identified their specific needs for

support to conduct their activities of daily living in the community.

2. Plaintiffs Kenneth Roman, 47, Rickii Ainey, 31, and Elizabeth Foster, 84, have

severe disabilities and multiple chronic conditions, including paralyses, strokes, chronic

heart failures, arthritis, multiple sclerosis, as well as other impairments as enumerated

below.

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3. The Plaintiffs all require assistance with activities of daily living, including but not limited to assistance with bathing, dressing, toileting, eating, bowel and bladder care, meal preparation and clean up, shopping, and laundry, and have been receiving such assistance in their homes as part of Defendants’ Medicaid-funded Long Term-Personal Care Services Program (“LT-PCS”). Plaintiffs are active in their communities. 4. The named and class Plaintiffs are all low-income and are recipients of Medicaidfunded services, including those services that they currently receive in the community and whose reductions are the subject of their lawsuit. 5. None of them wants to leave their homes, friends, and families and to go into a nursing home in order to receive the same Medicaid-funded services that they presently receive in the community. They are all at risk of institutionalization if their Long TermPersonal Care Services are reduced and capped as defendants propose. JURISDICTION AND VENUE 6. This action for declaratory and injunctive relief arises under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (“ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”). 7. The Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiffs’ causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794(a). 8. Venue is proper because a substantial part of the actions and omissions of which Plaintiffs allege occurred in this District. 28 U.S.C. § 1391(b).
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PLAINTIFFS 9. Kenneth Roman is a 47 year old resident of Jeanerette, Louisiana. He is a recipient of Medicaid benefits from the State of Louisiana. He has a disability as defined in § 12102(2)(A) of the ADA and a “handicap” as defined in Section 504. 10. Rickii Ainey is a 30 year old resident of New Orleans, Louisiana. She is a recipient of Medicaid benefits from the State of Louisiana. She has a disability as defined in § 12102(2)(A) of the ADA and a “handicap” as defined in Section 504. 11. Elizabeth Foster is an 84 year old resident of New Orleans, Louisiana. She is a recipient of Medicaid benefits from the State of Louisiana. She has a disability as defined in § 12102(2)(A) of the ADA and a “handicap” as defined in Section 504. Her daughter, Donna Zeno, has Ms. Foster’s power of attorney and brings this action as her next friend. DEFENDANTS 12. Bruce Greenstein is the Secretary of the Louisiana Department of Health and Hospitals (“DHH”). He is sued in his official capacity. The Secretary of DHH is responsible for the oversight, supervision and control of the DHH and its divisions, and is ultimately responsible for ensuring that the DHH’s services for people with disabilities are provided in conformance with federal laws, including the ADA and Section 504, as well as Medicaid. 13. DHH is the chief health policy and planning entity for the state. It receives federal financial assistance and is responsible for administering Louisiana’s Medicaid Program. DHH is the “single state agency” that operates Louisiana’s Medicaid program, see 42 U.S.C. § 1396a(a)(5). It licenses, certifies, and approves Medicaid payments to Louisiana’s Medicaid nursing homes, and administers its home- and community-based
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programs, including the Elderly and Disabled Adult Waiver and Long-Term Personal

Care Services programs for people with disabilities.

THE AMERICANS WITH DISABILITIES ACT

14. Title II of the Americans with Disabilities Act (ADA) provides that “no

qualified individual with a disability shall, by reason of 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 such entity.” 42 U.S.C. § 12132.

15.

Under the ADA, institutionalization and segregation are prohibited forms of

discrimination against individuals with disabilities, 42 U.S.C. §12101(a)(3) and (5). The

ADA therefore requires that a public entity administer its 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).

16. The ADA prohibits “exclusionary qualifications standards and criteria” and

“relegation to lesser services, programs, … benefits, or other opportunities,” 42 U.S.C.

§12101(a)(5), and therefore the regulations implementing Title II provide that “a public

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

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

individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have

the purpose or effect of defeating or substantially impairing accomplishment of the

objectives of the entity’s program with respect to individuals with disabilities....” 28

C.F.R. § 35.130(b)(3).

17. Defendant DHH is a public entity under Title II of the ADA and its

implementing regulations.

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SECTION 504 OF THE REHABILITATION ACT

18. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794a, provides:

No otherwise qualified individual with a disability in the United States .., shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….

19. Regulations implementing Section 504 require a recipient of federal financial

assistance to administer its services, programs, and activities in “the most integrated

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

§41.51(d).

20. Regulations implementing Section 504 prohibit recipients of Federal financial

assistance from:

[u]tiliz[ing] criteria or methods of administration... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the...effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons. 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(i) and (ii).

21.

Defendants’ Medicaid program receives Federal financial assistance and must

comply with Section 504 and its implementing regulations. Federal Medicaid funds

make up 81.48% of Louisiana Medicaid payments, including LT-PCS.

THE LONG TERM PERSONAL SERVICES PROGRAM

22. The Medicaid program, authorized by Title XIX of the Social Security Act, 42

U.S.C. §1396 et seq., is a joint federal-state program. Medicaid is a cost-sharing

arrangement under which the federal government reimburses a portion of the

expenditures incurred by states that elect to furnish medical assistance to individuals

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whose income and resources are insufficient to cover the costs of their medical care. The purpose of Medicaid is to furnish, as far as practicable, “medical assistance on behalf of...aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services” and “to help such families and individuals to attain or retain capability for independence or self-care....” 42 U.S.C. § 1396. 23. States are not required to participate in the Medicaid program, but, if they choose to do so, they must operate their programs within federal statutory and regulatory provisions. They must adopt a State Plan that delineates the standards for determining eligibility and identifies the extent of Medicaid benefits. Louisiana has chosen to participate in the Medicaid program and has adopted a State Plan. 24. The Secretary of the United States Department of Health and Human Services administers the Medicaid program at the federal level through the Centers for Medicare and Medicaid Services (“CMS”), which has urged states pursuant to the ADA to avoid unnecessary institutionalization of person with disabilities in nursing facilities. 25. One of the programs available through Louisiana’s State Medicaid Plan is LTPCS. The Medicaid Act authorizes states to provide attendant care services under the federal Personal Care Option, 42 U.S.C. §1396d(a)(24). 26. The services of a personal care worker include assistance with basic personal care, toileting and grooming activities; assistance with bladder and/or bowel requirements or problems; assistance with eating and food preparation; performance of incidental household chores; accompanying to medical appointments; and grocery shopping. Personal care services are normally provided in the recipient's home, though they can be
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delivered in another location outside of the recipient's home if the provision of these services allows the recipient to participate in community activities. 27. To qualify for LT-PCS in Louisiana, a person must meet the requirements for a nursing facility level of care, and must also meet one of the following eligibility criteria: (1) be residing in a nursing facility and could be discharged if community-based services were available; (2) be likely to require nursing facility admission within the next 120 days; (3) have a primary care-giver who has a disability or is over the age of 70; or (4) face a substantial possibility of deterioration in mental or physical condition or functioning if either home and community-based services or nursing facility services are not provided in less than 120 days. Louisiana Administrative Code 50:XV.Chapter 129, §12505(A); Louisiana Register V. 29 No. 6 (June 20, 2003) pp. 911-13. 28. LT-PCS must be prior authorized by DHH after an annual assessment to ensure the person continues to meet eligibility criteria. As a person’s needs change, the amount of LT-PCS services he or she receives in the community can change accordingly. 29. Defendants’ annual review of each LT-PCS recipient determines the specific amount of services in hours that the person requires. 30. Since the inception of the LT-PCS program in 2003, DHH has used an assessment tool called the Minimum Data Set-Home Care (“MDS-HC”) to assess the need for LTPCS. Until March 1, 2009, the maximum amount of LT-PCS that a person could receive was 56 hours per week. The actual allocation of service hours was based on the person’s level of need for assistance on each of seven activities of daily living (bed mobility, transferring, locomotion (in and out of the home), dressing (upper and lower body), eating, toileting, personal hygiene and bathing) and eight “instrumental activities of daily
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living” (meal preparation, ordinary housework, managing finances, managing medication, phone use, shopping and transportation). 31. Beginning March 1, 2009, DHH, while it continued to use the MDS-HC, began using a different scoring system called the “RUG III/HC” to assign LT-PCS recipients a maximum number of hours of LT-PCS. The maximum number of hours that any LTPCS recipient could receive was reduced from 56 to 42 hours per week. 32. In August 2010, DHH announced that it was again changing the method of deciding the number of hours allocated and reducing the maximum number of hours of LT-PCS service that recipients could receive, from 42 to 32 hours a week. 33. DHH has announced that the number of hours that an individual can receive will be based on the individual’s score using an “ADL index.” The “ADL index” is a composite of scores as to how much assistance individuals need with only four activities of daily living: eating, toileting, transferring, and moving around in bed. The maximum number of LT-PCS hours that an LT-PCS recipient will be able to receive varies with the person’s score on the ADL index, from a low of 18 hours to a high of 32 hours, regardless of a person’s actual need for more hours. 34. Nationally, the mean number of hours of personal assistance services that persons who require assistance for four ADLs receive per week is 85.9 hours, and the mean number of hours persons who require assistance for five ADLs receive per week is 118.5 hours. 35. The reduction in maximum hours that Defendants are imposing on the LT-PCS program will be implemented for assessments of new LT-PCS recipients and for the annual reassessments of current recipients that take place after September 5, 2010.
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36. The reduction in maximum hours that Defendants are imposing on the LT-PCS program is being imposed for purely budgetary reasons and is not based on the needs of the persons who have been receiving LT-PCS services. 37. This budgetary reduction will deprive LT-PCS recipients of critical services that are necessary to permit these individuals to remain safely in their homes. At the present time, Kenneth Roman receives 39 hours a week; Rickii Ainey, 41 hours of LT-PCS a week; and Elizabeth Foster, 39 hours a week. 38. In deciding how many hours of LT-PCS will be allowed to each recipient, Defendants have not assessed or considered the amount of services that each needs, including such considerations as the unavailability of unpaid supports. 39. Defendants have estimated that the reduction in maximum LT-PCS hours from 42 to 32 will impose an average reduction of three hours of service to LT-PCS recipients. The reduction thus falls disproportionately on recipients with the most severe disabilities and service needs, who receive more than 35 hours a week of services. 40. The reduction in LT-PCS hours results in the systematic provision of amounts of LT-PCS that are inadequate to allow plaintiffs and class members to live in integrated settings. 41. The cost of providing care to plaintiffs in a nursing facility is higher than the cost of providing them with 42 hours a week of LT-PCS. 42. The reduction in LT-PCS hours violates the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”), and the federal regulations implementing these statutes, by placing LT-PCS recipients at risk of unnecessary institutionalization in nursing homes.
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NAMED PLAINTIFFS’ NEEDS FOR PERSONAL CARE Kenneth Roman 43. Plaintiff Kenneth Roman is 47 years old and has lived in Jeanerette, Louisiana for most of his life. He worked as a hairdresser and as a cook until 2002, when his health problems forced him to retire. 44. Mr. Roman was determined eligible for Social Security Disability benefits in 2002. He $52 per month in Social Security Disability Insurance and $640 per month in Supplemental Security Income. 45. Kenneth Roman has had several strokes. As a result of the strokes, Mr. Roman has left side hemiparesis. He also has diabetes, congestive heart failure, peripheral vascular disease, hypertension, coronary artery disease, renal failure and irritable bowel syndrome. 46. Plaintiff Roman has also had several heart attacks, the most recent of which was in 2009. 47. Mr. Roman uses a four-pronged cane for support and mobility. However, he often falls while using the cane due to his left side hemiparesis 48. Plaintiff Kenneth Roman is Medicaid eligible and receives LT-PCS services. He lives alone in a trailer. His parents live nearby, but both of are elderly and are themselves disabled. They are unable to assist him. 49. Mr. Roman is currently separated from his wife. One of the primary reasons they are separated is because his wife did not want to be his caregiver any longer. 50. Due to his impairments, Plaintiff Roman needs assistance with all of his activities of daily living. He is incontinent and needs assistance cleaning after an incontinence
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episode. This is even more important when his irritable bowel syndrome occurs. He is often incontinent of bowel and bladder at night and often must wait until his personal care worker arrives in the morning to assist with cleaning. 51. Plaintiff Roman needs assistance changing to a standing position from a sitting position. He needs help bathing, washing his face and brushing his teeth. He has difficulty moving in bed and often is not able to move in bed when he has no assistance. Not moving during the night causes him severe pain. As a result of the pain, he often falls in the morning when he tries to walk. 52. When Mr. Roman was first determined eligible for the LT-PCS program in 2008, he was assessed and determined to need 47 hours per week of personal care services. In 2009, Mr. Roman was reassessed and his LT-PCS services were reduced 39 hours per week. 53. The reduction of LT-PCS to 39 hours per week has been very difficult for him. For example, because his physical care needs are great, his shopping, laundry and household chores (such as washing bed linens soiled in incontinence episodes) are not done promptly. In addition, he must wait longer periods of time to be cleaned if he has a bowel or bladder accident when his caregiver is not present. 54. Kenneth Roman is active in his church, where his father has been the pastor. He has several friends that are part of the church with whom he prays. 55. Mr. Roman can safely live at home with 39 hours of LT-PCS services. If his LT-PCS hours are reduced, he believes that he would be forced to seek care in a nursing home. Mr. Roman wants to stay home where he can continue to be part of his community.
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Rickii Ainey 56. Plaintiff Rickii Ainey is 30 years old. She lives alone in New Orleans, Louisiana, where she has lived all of her life. 57. Ms. Ainey has arthrogryposis, a congenital form of arthritis. She is paralyzed from the waist up and has limited mobility in her legs. She has limited range of motion in her legs and the range of motion is deteriorating. 58. Because this impairment is progressive, she has required an increasing amount of care as she has aged. 59. Ms. Ainey has received Medicaid since she was a child. 60. Ms. Ainey needs assistance with all activities of daily living, including but not limited to bathing her upper body, including her face, arms and torso, and washing her hair; dressing in the morning and undressing when she goes to bed; adjusting her clothing before and after toileting; getting on and off the toilet and cleaning herself after toileting; feminine hygiene; eating and drinking; transferring from any surface to a standing position; and moving once in bed. 61. Ms. Ainey cannot prepare meals and cannot shop without assistance. In addition, she requires assistance to do all household chores and laundry. 62. Ms. Ainey can use the phone by placing it on her bed or other flat surface and using her knuckle to dial. She then bends at the waist and put her ear to the phone using the bed or other surface for support. To stand again, she must perform a rolling motion until she shifts her body to a standing position. If Ms. Ainey falls, which happens from time to time, she cannot stand again without assistance and must wait for someone to come and help her.
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63. Ms. Ainey’s mother lives nearby but refuses to assist her daughter. Ms. Ainey has a sister who lives in Arkansas and four brothers who live in New Orleans. Her brothers cannot provide the intimate personal care she needs, and Ms. Ainey does not believe they are responsible enough to help her on a regular basis. 64. Ms. Ainey attempted suicide in December of 2006. The primary reason for the suicide attempt was the fact that she had no personal care assistance. 65. Ms. Ainey learned about the LT-PCS program and began receiving LT-PCS services in October of 2007. At that time Ms. Ainey was awarded 37.5 hours per week of assistance. 66. In 2008, Ms. Ainey had surgery on her right knee. She was reassessed and was awarded 55 hours per week of LT-PCS services. 67. Upon her reassessment in late 2009, Ms. Ainey was told by the assessor that she would receive only 30 hours per week of LT-PCS. She immediately appealed. When she received her official notice, it turned out that she had in fact been allocated 41 hours per week of LT-PCS, which is the number of hours she is currently approved to receive. Ms. Ainey has no assistance other than the 41 hours per week provided by her LT-PCS worker. 68. A reduction of LT-PCS hours to 32 a week will not provide her with adequate assistance. Ms. Ainey does not want, at the age of thirty, to be forced to live in a nursing home. She is active in her community, and wants to continue to receive services in her own home.
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Elizabeth Foster 69. Elizabeth Foster is 84 years old and has a history of strokes, arthritis, and cognitive impairment. She lives alone in New Orleans, Louisiana, next door to her daughter, Donna Zeno. 70. Due to Ms. Fosters’ medical conditions, she has no ability to perform her own personal care. Ms. Foster cannot use her left arm. She cannot stand or put any weight on her legs. She is unable to reposition her body in bed. 71. Ms. Foster requires total assistance with transferring, toileting, bathing, personal hygiene tasks, and dressing. She often needs to be fed by hand, as she sometimes cannot feed herself with a spoon. 72. Ms. Foster is incontinent of bowel and bladder and needs to be promptly cleaned and changed after her frequent incontinent episodes, to make sure that she does not develop pressure sores or other health problems. 73. Ms. Foster cannot do her own shopping, use a telephone, prepare a meal or perform any housekeeping chores, including laundry. Ms. Foster receives 39 hours a week of LT-PCS. In addition, she receives services from 8:00 a.m. to 3:00 p.m., five days a week, at an Adult Day Health Care Center. 74. Ms. Foster’s LT-PCS worker takes care of Ms. Foster at home in the morning prior to going to the ADHC, in the evenings after she returns home from the ADHC, and on weekends, as well as accompanying her to medical appointments and grocery shopping for her. 75. Ms. Foster’s daughter, Elizabeth Zeno, lives next door to her mother and sees her daily. However, due to her own disabilities, Ms. Zeno cannot assist her mother with her
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activities of daily living, and cannot dependably assist with her with her household needs, including meal preparation. 76. Ms. Foster’s other children live in other states and are not available to assist her. 77. Ms. Foster resides in the New Orleans “double” she purchased with her husband over 40 years ago. For many years, she worked peeling shrimp and cleaning fish in the seafood industry in New Orleans. She worked until she was in her late sixties, when she decided to retire. Ms. Foster was active in church most of her life and still enjoys going to church when she can. 78. Based on her treating physician’s declaration, if Ms. Foster’s hours of LT-PCS were to be reduced to 32 per week, she would deteriorate physically and cognitively, and would require institutionalization in a nursing facility. 79. Ms. Foster does not want to go into a nursing home. She enjoys attending Kingsley House Adult Day Health Care Center Mondays through Fridays. She has a close-knit group of friends there, who have been attending the Center together for a several years. She enjoys participating in games and field trips with her group from the Center, and sharing meals with them. Ms. Foster also enjoys going out to eat and to church. If she were to be institutionalized in a nursing home, her mental and physical condition would deteriorate rapidly and unnecessarily. CLASS ACTION ALLEGATIONS 80. Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the named Plaintiffs bring this action on behalf of themselves and all other persons similarly situated. 81. The proposed class consists of Louisiana residents with disabilities who are recipients or prospective recipients of Medicaid-funded services through the LT-PCS
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program; who desire to continue to reside in the community instead of in a nursing facility; who can reside in the community with appropriate Medicaid-funded LT-PCS services; and who are at risk of being forced to enter a nursing home because Defendants plan to reduce the level of community-based services. 82. The Plaintiff class is so numerous that joinder of all its members is impracticable. As of October 21, 2101, of the approximately 12,000 individuals receiving LT-PCS services, 28% received services in excess of 32 hours per week. 83. These people want to continue living in the community. A substantial number of them are or will be at risk of institutionalization if they do not receive adequate Medicaid LT-PCS community-based services. Joinder is also impracticable because class members lack the knowledge and financial means to maintain individual actions. Future recipients of LT-PCS are also included in the class. 84. The questions of law or fact common to the class include whether Defendants violate the ADA and Section 504 statutory “integration mandate” and the “methods of administration” prohibition, by requiring named Plaintiffs and class members to enter a nursing facilities in order to receive long-term care services, rather than providing those services in appropriate settings in Plaintiffs’ homes and communities; 85. The claims of the named Plaintiffs are typical of the claims of the class as a whole, in that the named Plaintiffs and purported class are Medicaid recipients of LTPCS services who are at risk of being forced to enter a nursing facility to receive the same services they receive in the community, and who desire to and who could live in the community with the same, appropriate LT-PCS services that they have been receiving.
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86. The named Plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole. The named Plaintiffs do not have any interests antagonistic to those of other class members. By filing this action, the named Plaintiffs have displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The relief sought by the named Plaintiffs will inure to the benefit of members of the class generally. The named Plaintiffs are represented by counsel are skilled and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts and the prosecution and management of class action litigation. 87. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole under Fed. R. Civ. P. 23(b)(2). FIRST CLAIM FOR RELIEF - TITLE II OF THE AMERICANS WITH DISABILITIES ACT 88. Plaintiffs and class members are individuals with disabilities in that they have physical and other impairments that substantially limit one or more of their major life activities. 89. Plaintiffs and the class are qualified persons with disabilities in that they are capable of safely living at home with necessary services. They meet the essential eligibility requirements for the receipt of services from and participation in the State Medicaid program, 42 U.S.C. §12131(2). 90. Without reasonable modification of the rules, policies, and procedures governing Louisiana’s Medicaid program, Plaintiffs are at risk of being isolated and segregated into
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an institutional setting. This would be against their will. They do not want to be placed in nursing homes. 91. Defendants’ denial of Medicaid funding for the LT-PCS services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that are appropriate to their needs, constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 35.130(d). 92. Defendants have utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to properly consider the services and supports that would enable Plaintiffs to remain in the community; (2) by imposing the cuts in such a manner that they fall disproportionately on recipients with the most severe disabilities and service needs; (3) by systematically failing to provide the amount of LT-PCS that is adequate to allow plaintiffs and class members to live in integrated settings; and (4) by providing additional funding for services only if plaintiffs will enter nursing homes for care, all in violation of Title II of the ADA and implementing regulations. 93. Defendant DHH has failed to make reasonable modifications in its policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, in violation of the ADA and its implementing regulations. DHH cannot demonstrate that making such modifications in its programs that would afford Plaintiffs the ability in their homes with adequate services and supports would fundamentally alter the nature of the service, program, or activity.
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SECOND CLAIM FOR RELIEF - SECTION 504 OF THE REHABILITATION ACT

94. Plaintiffs are “qualified person with disabilities” within the meaning of Section

504. They have physical and/or mental impairments that substantially limit one or more

major life activities, and they meet the essential eligibility requirements for long term

care under Louisiana’s Medicaid program.

95. Defendant DHH’s denial of Medicaid funding for the LT-PCS services that

Plaintiffs require to avoid segregation in an institution and remain in the integrated home

settings that is appropriate to their needs constitutes unlawful discrimination in violation

of Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing

regulation, 28 C.F.R. §41.51(d).

96.

Defendant DHH has also utilized criteria and methods of administration that

subject Plaintiffs to discrimination on the basis of disability, including risk of

unnecessary institutionalization, by (1) failing to properly consider the services and

supports that would enable Plaintiffs to remain in the community; (2) by imposing the

cuts in such a manner that they fall disproportionately on recipients with the most severe

disabilities and service needs; (3) by systematically failing to provide the amount of LT-

PCS that is adequate to allow plaintiffs and class members to live in integrated settings;

and (4) by providing additional funding for services only if plaintiffs will enter nursing

homes for care, thereby violating Section 504 and its implementing regulations.

97. Defendant DHH has failed to make reasonable modifications in its policies,

practices, or procedures when the modifications are necessary to avoid discrimination on

the basis of disability, in violation of Section 504 and its implementing regulations. DHH

cannot demonstrate that making such modifications in its programs that would afford

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Plaintiffs the ability in their homes with adequate services and supports would fundamentally alter the nature of the service, program, or activity. RELIEF REQUESTED
WHEREFORE, named Plaintiffs and the class respectfully request that the Court grant the following relief:
A. Declare that the Defendants’ denial of necessary and appropriately adequate Medicaid in-home community-based LT-PCS services for Plaintiffs constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
B. Grant temporary, preliminary and permanent injunctions enjoining the Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from denying Plaintiffs’ Medicaid necessary and appropriate LT-PCS services “in the most integrated setting” so they can reside in their homes, or from reducing Plaintiffs’ LT-PCS services that they currently receive in the LT-PCS program which had been determined medically necessary and the minimal amount of services the Plaintiffs required to avoid institutionalization in nursing facilities.
C . Waive the requirement for the posting of a bond as security for the entry of preliminary relief.
D. Award the Plaintiff the costs of this action and reasonable attorney’s fees pursuant to 29 U.S.C. § 794a and 42 U.S.C. § 12133 and any other applicable provision of law.
E. All such other and further relief as the Court deems to be just and equitable.
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Dated: June 1, 2011.

Respectfully submitted,
/s/ Nell Hahn Nell Hahn LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 205-6166 nhahn@advocacyla.org

Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424
Counsel for the Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on June 1, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

KENNETH ROMAN, RICKII AINEY

) Civil Action No. 3:10-cv-00635-JJB-SCR

and ELIZABETH FOSTER, on behalf

)

of themselves and all others similarly

)

situated,

)

Plaintiffs

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

DEFENDANTS’ ANSWER TO THE COMPLAINT IN INTERVENTION

Bruce Greenstein and the Louisiana Department of Health and Hospitals

(“DHH”), collectively “Defendants”, by and through their counsel, answer the paragraphs in the

Complaint in Intervention as follows:

Introductory Paragraphs

1. The first sentence of paragraph 1 contains Plaintiffs’ characterization of their

claims to which no response is required. To the extent that a response is required, Defendants

deny that the challenged regulation will result in hundreds of people entering nursing facilities.

Defendants admit that DHH has assessed each named plaintiff’s ability to self-perform the

activities of daily living (“ADLs”) and instrumental activities of daily living (“IADLs”) and

determined that each met Louisiana’s medical standards for admission to a nursing facility at the

time of his or her most recent assessment. Defendants deny the remaining allegations in

paragraph 1.

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2. Defendants admit that Mr. Roman, Ms. Ainey, and Ms. Foster have disabilities; that each has at least one chronic medical condition; and that, collectively, they have been diagnosed with the conditions expressly enumerated in paragraph 2.
3. Defendants admit that the named plaintiffs collectively require, and have in the past received, some assistance with ADLs including eating, bathing, dressing, grooming, transferring, ambulation, toileting, and remembering to take medication. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the second sentence in paragraph 3. Defendants deny the remaining allegations in paragraph 3 and state that meal preparation, grocery shopping, and laundry are not considered ADLs as that term is used in the Long-Term Personal Care Services (“LT-PCS”) program.
4. Defendants admit the allegations in paragraph 4 except insofar as they apply to class members who do not currently receive LT-PCS; to that extent, Defendants deny the allegations in paragraph 4.
5. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in the first sentence of paragraph 5. Defendants deny the second sentence of paragraph 5.
Jurisdiction and Venue 6. Paragraph 6 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act. 7. Paragraph 7 sets forth a jurisdictional claim, which does not require a response. To the extent that a response is required, Defendants deny those allegations that are inconsistent with applicable law. Defendants specifically deny that federal law provides
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Plaintiffs with a cause of action and aver that the Eleventh Amendment bars the relief Plaintiffs seek.
8. Paragraph 8 is an assertion of venue, which does not require a response. Plaintiffs
9. Defendants admit the allegations in the first and second sentences of paragraph 9. The third sentence of paragraph 9 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the ADA or the Rehabilitation Act.
10. Defendants deny that Rickii Ainey was 30 years old when Plaintiffs filed their Complaint in Intervention, and aver that Rickii Ainey was 31 years old at the time. The third sentence of paragraph 10 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the ADA or the Rehabilitation Act. Defendants admit the remaining allegations in paragraph 10.
11. Defendants admit the allegations in the first and second sentences of paragraph 11. The third sentence of paragraph 11 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the ADA or the Rehabilitation Act. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in the fourth sentence of paragraph 11.
Defendants 12. Defendants admit the first sentence of paragraph 12. The second and third sentences of paragraph 12 state legal conclusions to which no response is required; to the extent
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that a response is required, Defendants deny those allegations that are inconsistent with applicable law.
13. Defendants admit the allegations in paragraph 13. The Americans with Disabilities Act
14. Paragraph 14 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the ADA.
15. Paragraph 15 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the ADA. Defendants specifically deny that 28 C.F.R. §35.130(d) is enforceable through a private right of action and that the ADA itself incorporates the standards in 28 C.F.R. §35.130(d).
16. Paragraph 16 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the ADA. Defendants specifically deny that 28 C.F.R. §35.130(b)(3) is enforceable through a private right of action.
17. Defendants admit that DHH is a public entity within the meaning of the ADA. Section 504 of the Rehabilitation Act
18. Paragraph 18 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the Rehabilitation Act.
19. Paragraph 19 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the Rehabilitation Act. Defendants specifically deny that 28 C.F.R. §41.51(d) is
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enforceable through a private right of action and that the Rehabilitation Act itself incorporates the standards set forth in 28 C.F.R. §41.51(d).
20. Paragraph 20 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the Rehabilitation Act. Defendants specifically deny that the regulations cited in paragraph 20 are enforceable through a private right of action.
21. In response to the first sentence of paragraph 21, Defendants admit that Louisiana’s Medicaid program receives federal financial participation. The remainder of the first sentence of paragraph 21 sets forth legal conclusions to which no response is required, and to the extent that a response is required, Defendants deny those allegations. Defendants deny the allegations in the second sentence of paragraph 21.
The Long Term Personal Care Services Program 22. Paragraph 22 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with applicable law. 23. Defendants admit that Louisiana participates in the Medicaid program and has adopted a state plan for medical assistance under Title XIX of the Social Security Act. The remaining allegations in paragraph 23 set forth legal conclusions to which no response is required; to the extent that a response is required, Defendants deny those allegations that are inconsistent with applicable law. 24. Defendants admit that the Secretary of the United States Department of Health and Human Services has delegated much of her authority under the Medicaid program to the
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Centers for Medicare & Medicaid Services (“CMS”). Defendants deny that the remaining allegations in paragraph 24 accurately and fully characterize the policies of CMS.
25. Defendants admit the allegations in the first sentence of paragraph 25. The second sentence of paragraph 25 sets forth legal conclusions to which no response is required; to the extent that a response is required, Defendants deny those allegations that are inconsistent with the Medicaid statute.
26. Defendants admit the allegations in paragraph 26 accurately describe the services a personal care worker may be authorized to provide to an LT-PCS recipient. Defendants deny that every beneficiary receives all of the assistance described.
27. Paragraph 27 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants state that, to be eligible to receive LT-PCS, an individual must, inter alia, (1) meet the medical standards for admission to a nursing facility; (2) require limited assistance with at least one activity of daily living; and (3) face a substantial possibility of deterioration in mental or physical condition or functioning if neither home-andcommunity-based services nor nursing-facility services are provided in less than 120 days. Defendants further state that the third criterion is considered met if the recipient: (a) is in a nursing facility and could be discharged if community-based services were available; (b) is likely to require nursing-facility admission within the next 120 days; or (c) has a caregiver who has a disability or is over the age of 70. Defendants deny the allegations in paragraph 27 to the extent that they are inconsistent with the above.
28. Defendants admit the allegations in the first sentence of paragraph 28. Defendants aver that the amount of LT-PCS services an individual may receive is based on his or her ADL Index score of the Minimum Data Set-Home Care assessment tool. The ADL Index
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measures the degree of assistance an individual required to perform late-loss ADLs during the look-back period prior to the assessment. If the degree of assistance an individual requires to perform ADLs changes, an individual’s eligibility for LT-PCS may change, as may the number of hours of LT-PCS the individual is eligible to receive. Defendants deny the allegations in the second sentence of paragraph 28 to the extent that they are inconsistent with the above.
29. Defendants deny the allegations in paragraph 29. 30. Defendants admit the allegations in paragraph 30. 31. Defendants admit the allegations in paragraph 31, except that the emergency rule adopting the RUG III/HC methodology and the 42-hour limitation on LT-PCS became effective on March 20, 2009. 32. Defendants admit the allegations in paragraph 32. 33. Defendants deny the allegations in the last sentence of paragraph 33. Defendants admit the remaining allegations in paragraph 33. 34. Defendants deny the allegations in paragraph 34. 35. Defendants aver that the reduction in maximum hours will be implemented for assessments of new LT-PCS recipients and for the annual reassessments of current recipients that take place on or after September 5, 2010. 36. Defendants deny the allegations in paragraph 36. 37. Defendants deny the allegations in the first sentence of paragraph 37. Defendants admit the allegations in the second sentence of paragraph 37. 38. Defendants deny the allegations in paragraph 38. 39. Defendants admit that prior to reducing from 42 to 32 the maximum number of hours an LT-PCS recipient could receive every week and revising the methodology for
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allocating hours within the permissible range, DHH estimated that these changes would result, on average, in a reduction of LT-PCS by three hours per week per LT-PCS recipient. Defendants admit that individuals who receive greater than 35 hours per week immediately before these changes are implemented will have their hours reduced by more than 3 hours per week. Defendants deny the remaining allegations in paragraph 39.
40. Defendants deny the allegations in paragraph 40. 41. Defendants admit that the cost of providing care to a single plaintiff in a nursing facility is greater than the cost of providing him or her with 42 hours per week of LTPCS. Defendants aver that many people who use LT-PCS would not use nursing facility services if LT-PCS services were reduced or eliminated. 42. Paragraph 42 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 42.
Named Plaintiffs’ Need for Personal Care Kenneth Roman
43. Defendants admit that Mr. Roman is currently 47 years old and lives in Jeanerette, Louisiana. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 43.
44. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 44.
45. Defendants admit that Mr. Roman has had at least one stroke. Defendants admit that Mr. Roman has hemiparesis. Defendants admit that Mr. Roman has identified himself as having diabetes, congestive heart failure, peripheral vascular disease, hypertension, coronary artery disease, renal failure, and irritable bowel syndrome. Defendants lack sufficient knowledge
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or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 45.
46. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 46.
47. Defendants admit that Mr. Roman ambulates using a cane and has hemiparesis. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegation that Mr. Roman often falls as a result of his hemiparesis.
48. Defendants admit that Mr. Roman has been found eligible for, and currently receives, LT-PCS. Defendants admit that Mr. Roman’s parents have disabilities and do not currently provide him with assistance in performing ADLs or IADLs. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegation that Mr. Roman lives alone.
49. Defendants admit the allegations in the first sentence of paragraph 49. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in the second sentence of paragraph 49.
50. Defendants admit that Mr. Roman is incontinent and has in the past received assistance with all of his ADLs. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 50.
51. Defendants admit that Mr. Roman has in the past received assistance with transferring and bathing. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 51.
52. Defendants deny the allegations in paragraph 52. Defendants state that Mr. Roman’s May 2008 assessment led to a recommendation of 43.25 hours per week of LT-PCS; an
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April 2009 assessment led to a recommendation of 32.25 hours per week, plus 1.75 hours per month of additional assistance with IADLs; a March 2010 assessment led to a recommendation of 36.75 hours per week; and an April 2010 reassessment due to a change in status led to a recommendation of 39 hours per week.
53. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 53.
54. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 54.
55. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 55. Rickii Ainey
56. Defendants deny that Ms. Ainey is 30 years old. Paragraph 2 of the Complaint in Intervention correctly alleges that Ms. Ainey is 31 years old. Defendants admit that Ms. Ainey lives alone in New Orleans, Louisiana. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 56.
57. Defendants admit that Ms. Ainey has arthrogryposis but lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 57.
58. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 58.
59. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 59.
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60. Defendants admit that Ms. Ainey has in the past received the assistance described in paragraph 60.
61. Defendants admit that Ms. Ainey has in the past received assistance in meal preparation, grocery shopping, light housekeeping, and laundry. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 61.
62. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 62.
63. Defendants admit that Ms. Ainey’s mother lives near her and that her sister lives in Arkansas. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 63.
64. Defendants admit the allegations in the first sentence of paragraph 64. Defendants deny the allegations in the second sentence of paragraph 64.
65. Defendants lack sufficient information or knowledge to form a belief as to the truth or falsity of the allegations in the first sentence of paragraph 65. Defendants deny the allegations in the second sentence of paragraph 65 and state that Ms. Ainey was initially approved for 38 weekly hours of LT-PCS plus 3.5 monthly hours.
66. Defendants admit the allegations in paragraph 66. 67. Defendants admit that Ms. Ainey is currently approved to receive 41 hours per week of LT-PCS. Defendants deny that Ms. Ainey lacks access to assistance other than that which she receives through the LT-PCS program. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 67.
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68. Defendants deny the allegations in the first sentence of paragraph 68. Defendants lack sufficient information to form a belief as to the truth or falsity of the remaining allegations in paragraph 68. Elizabeth Foster
69. Defendants admit the allegations in paragraph 69. 70. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 70. 71. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 71. 72. Defendants admit that Ms. Foster is incontinent but lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 72. 73. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in the first sentence of paragraph 73. Defendants admit the remaining allegations in paragraph 73. 74. Defendants deny that Ms. Foster’s LT-PCS worker performs grocery shopping on her behalf or accompanies her to medical appointments; Defendants state that Ms. Foster’s daughter is expected to provide such assistance. Defendants admit the remaining allegations in paragraph 74. 75. Defendants admit the allegations in the first sentence of paragraph 75. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in the second sentence of paragraph 75.
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76. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 76.
77. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 77.
78. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in paragraph 78.
79. Defendants deny the allegations in the last sentence of paragraph 79. Defendants lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 79.
Class Action Allegations 80. Paragraph 80 sets forth Plaintiffs’ characterization of this action and legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 80. 81. Paragraph 81 sets forth Plaintiffs’ proposed class and does not require a response. To the extent that a response is required, Defendants deny the allegations in paragraph 81 and note that the Court has certified a class using a different class definition. 82. The first sentence of paragraph 82 sets forth a legal conclusion to which no response is required. Defendants admit the allegations in the second sentence of paragraph 82. 83. Defendants lack sufficient information or knowledge to form a belief as to the truth or falsity of the allegations in the first sentence of paragraph 83. Defendants deny the allegations in the second sentence of paragraph 83. The remaining allegations in paragraph 83 set forth legal conclusions and characterizations of the proposed class to which no response is required.
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84. Paragraph 84 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 84.
85. Paragraph 85 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 85.
86. Paragraph 86 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 86, except that Defendants admit the allegations in the last sentence of paragraph 86.
87. Paragraph 87 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 87.
First Claim for Relief - Title II of the Americans with Disabilities Act 88. Defendants admit the allegations in paragraph 88. 89. Paragraph 89 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with the ADA. 90. Paragraph 90 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in the first sentence of paragraph 90 and lack sufficient knowledge or information to form a belief as to the truth or falsity of the remaining allegations in paragraph 90. 91. Paragraph 91 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 91. 92. Paragraph 92 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 92.
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93. Paragraph 93 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 93.
Second Claim for Relief - Section 504 of the Rehabilitation Act 94. Paragraph 94 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny those allegations that are inconsistent with applicable law. 95. Paragraph 95 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 95. 96. Paragraph 96 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 96. 97. Paragraph 97 sets forth legal conclusions to which no response is required. To the extent that a response is required, Defendants deny the allegations in paragraph 97.
* ** Relief Requested Defendants deny that Plaintiffs are entitled to the relief requested on page 20 of the Complaint in Intervention. * ** Defendants deny any and all allegations of the Complaint in Intervention not expressly admitted herein. * ** Affirmative Defenses 1. The Complaint in Intervention fails to state a claim for which relief can be granted.
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2. The Complaint in Intervention does not allege violations of the ADA or Rehabilitation Act that can be remedied through a private right of action.
3. Defendants already have in place a comprehensive, effectively working plan for providing alternatives to institutionalization.
4. The relief requested by Plaintiffs would fundamentally alter Louisiana’s longterm care services.
5. Plaintiffs’ action is not a proper class action and the Complaint in Intervention fails to set forth an adequate basis for granting relief on behalf of a purported class.
6. Defendant DHH is immune from suit under the Eleventh Amendment. WHEREFORE, Defendants respectfully request that the Court enter judgment in their favor on all claims alleged in the Complaint in Intervention and grant Defendants such other relief as this Court deems just and proper.
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Dated: July 27, 2011

Respectfully

submitted,
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232
Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291 Counsel for Defendants

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CERTIFICATE OF SERVICE I certify on this 27 th day of July, 2011, that a tr ue and correct copy of the foregoing Answer to the Complaint in Intervention was filed electronically using the CM/ECF system. Notice of this filing will be sent via op eration of the Court’s el ectronic filing system to the following: Nell Hahn nhahn@advocacyla.org Stephen F. Gold stevegoldada@cs.com Bruce Vignery bvignery@aarp.org Kenneth Zeller kzeller@aarp.org Counsel for Plaintiffs James L. Nelson jim.nelson@usdoj.gov Counsel for the United States
/s/ Matthew Berns Matthew Berns
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 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

*

Kenneth Roman, Rickii Ainey, and

*

Elizabeth Foster, on behalf of themselves *

and all others similarly situated,

*

*

Plaintiffs,

*

*

v.

*

*

Bruce Greenstein, in his official

*

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

Louisiana Department of Health and

*

Hospitals,

*

Defendants,

*

•

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs, by their undersigned counsel, move this Court to enter a Preliminary Injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure enjoining Defendants, the Louisiana Department of Health and Hospitals and Bruce Greenstein, Secretary of the Louisiana Department of Health and Hospitals, in his official capacity: (a) To continue the LT-PCS services of class members, whose services have not yet been reduced to the 32-hour maximum, at their current level, and to provide a mechanism for class members whose services have already been reduced to obtain LTPCS services above the 32-hour cap; or, in the alternative, (b) To expand the operation of the July 2011 Emergency Rule making EDA waiver opportunities available to persons subjected to Defendants’ LT-PCS reductions, in order to prevent irreparable harm to the class pending trial on the merits in this action, and to ensure that the process effectively and expeditiously provides these waiver

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services.
Plaintiffs submit a memorandum of law in support of the motion. Plaintiffs’
complaint and the declarations submitted herewith demonstrate that (1) absent
preliminary relief, Plaintiffs and the class of similarly-situated individuals will suffer
immediate and irreparable harm; (2) it is likely that Plaintiffs will succeed on the merits;
and (3) no harm to the Defendants will result if such relief is granted and the injunction
will serve the public interest.
Wherefore, Plaintiffs requests that this Court enter a preliminary injunction as
prayed for above.
Date: September 27, 2011
Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 237-0486 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation
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601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424 Counsel for the Plaintiff CERTIFICATE OF SERVICE I hereby certify that on September 27, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn
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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

________________________

*

Kenneth Roman, Rickii Ainey, and

*

Elizabeth Foster, on behalf of themselves *

and all others similarly situated,

*

*

Plaintiffs,

*

*

v.

*

*

Bruce Greenstein, in his official

*

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

Louisiana Department of Health and

*

Hospitals,

*

Defendants,

*

*

________________________

*

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION

I. Introduction

This case arises out of the State of Louisiana’s decision to lower the maximum number of

hours of home-and-community-based personal care service to 32 for the elderly and people with

severe disabilities who otherwise qualify for institutional care in nursing homes. Under the Long

Term-Personal Care Services program (hereinafter “LT-PCS”), Louisiana Medicaid provides

personal care workers to assist people with severe disabilities in their own homes to perform

basic activities of daily living, shopping, and household chores. In addition to its LT-PCS

program, Louisiana provides home and community-based services (“HCBS”) through its

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Medicaid waiver programs. As this Court has already noted in denying Defendants’ Motion for Summary Judgment, each of Defendants’ waiver program suffers from limited slots, geographical or age limitations, and/or significant waiting lists,1 making the waiver programs effectively unavailable to large numbers of persons threatened with institutionalization as a result of the reduction of services in the LT-PCS program.
Following this Courts’ denial of the Defendants’ Motion for Summary Judgment and its certification of the class, Defendants promulgated a revision to its rules governing the waiting list for services under its Elderly and Disabled Adults (“EDA”) Waiver,2 (hereafter referred to as the “July 2011 Emergency Rule”). This revised rule for the first time provides some class members, who are threatened with institutionalization because they need more than the 32-hour maximum, with a means of obtaining the services necessary to keep them out of a nursing home via the EDA, without requiring that they first going into a nursing home as a condition to receive these waiver services. Pursuant to the July 20, 2011 Emergency Rule, EDA waiver opportunities will be granted to up to 100 persons in the community who currently receive the maximum 32 hours of services allowable under the LT-PCS program and would require institutional placement, unless offered an emergency waiver slot.
Though the July 2011 Emergency Rule provides a way some class members may avoid the risk of institutionalization, it is so restricted that it will be practically useless to prevent placing hundreds of vulnerable class members at risk.
Plaintiffs seek a Preliminary Injunction requiring Defendants:
1 Ruling on Motion for Summary Judgment (Rec. Doc. 54, May 18, 2011), p. 2. According to Hugh Eley’s Second Declaration (Rec. Doc. 39-2), as of March 20, 2011, there was a wait time of 40 months for people living in the community to access EDA waiver services. 2 37 La. Reg. 1490-91 (June 20, 2011) (amending La. Admin. Code tit. 50, §8105).
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(a) To continue the LT-PCS services of class members, whose services have not yet been reduced to the 32-hour maximum, at their current level, and to provide a mechanism for class members whose services have already been reduced to obtain LT-PCS services above the 32hour cap; or, in the alternative,
(b) To expand the operation of the July 2011 Emergency Rule making EDA waiver opportunities available to persons subjected to Defendants’ LT-PCS reductions, in order to prevent irreparable harm to class pending trial on the merits in this action, and to ensure that the process effectively and expeditiously provides these waiver services. II. Background and procedural history
To qualify for LT-PCS in Louisiana, an individual who is living in the community must meet the requirements for a nursing facility level of care, and must also meet one of the following eligibility criteria: (1) be likely to require nursing facility admission within the next 120 days; (2) have a primary care-giver who has a disability or is over the age of 70; or (3) face a substantial possibility of deterioration in mental or physical condition or functioning if either home and community-based services or nursing facility services are not provided in less than 120 days.3
From the inception of the LT-PCS program until March of 2009, a person who received LT-PCS could receive as many as 56 hours of LT-PCS per week. The State reassesses each recipient annually and sets the number of weekly hours of service. Until March of 2009, the amount of LT-PCS that an individual could receive was determined by an independent assessor’s evaluation of the amount of assistance she required to complete the necessary activities of daily
3 La. Admin. Code tit. 50 §12505(A); 29 La. Reg. 911-13 (June 20, 2003).
3
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living and instrumental activities of daily living. In March 2009, Defendants instituted a 42-hour per week limit on LT-PCS.4 In September 2010, the State lowered the maximum weekly LTPCS service hours from 42 to 32 – the issue in the instant action.5 The reduction in maximum hours to 32 per week is being imposed for purely budgetary reasons and is not based on the needs of the persons who have been receiving LT-PCS services. (However, as this Court noted in its Ruling on Defendants’ Motion for Summary Judgment,6 the average cost of serving individuals in the LT-PCS program, prior to the reduction, was less than the cost of maintaining the same individual in a nursing facility.) The 32-hour “hard cap” on LT-PCS services applies not only to new LT-PCS applicants but also to individuals currently receiving assistance. Most critically, Defendants provide for no exceptions above 32 hours regardless of the acuity of the patient and regardless of the consequences of imposing the cap, regardless of any medical necessity for services above 32 hours a week, and regardless of the imminence of institutionalization as a result of the capped hours.
Plaintiffs brought this action in September of 2010 to enjoin the State from imposing the 32-hour maximum on individuals who would be placed at risk of institutionalization by the imposition of this cap. Plaintiffs claim that the reduction in maximum hours deprives LT-PCS recipients of critical services that are necessary to permit them to remain safely in their homes, and that this violates Title II of the Americans with Disabilities Act, and its implementing regulations,7 and Section 504 of the Rehabilitation Act, and its implementing regulation.8
4 See 35 La Reg. pp. 32 – 34 (January 20, 2009), La. Admin. Code tit. 50 §12915(A). 5 36 La Reg. pp. 1752 (August 20, 2010), La. Admin. Code tit. 50 §12915(A) (hereafter called the “September 2010 Emergency Rule.”) 6 Rec. Doc 54, p. 8. 7 42 U.S.C. § 12132; 28 C.F.R. Part 35, and particularly 28 C.F.R. § 35.130(d). 8 29 U.S.C. §794(a); 28 C.F.R. §41.51(d).
4
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On October 21, 2010, Defendants filed a Motion to Dismiss Plaintiffs’ claims, which the
Court converted to a Motion for Summary Judgment. After preliminary discovery and briefing,
this Court denied Defendants’ Motion on May 18, 2011, holding that “the State’s current plan
plainly violates the ADA by requiring a greater risk of institutionalization for people who require
more than 32 hours a week of assistance.”
Plaintiffs filed a Motion for Class Certification on December 20, 2011. On June 6, 2011,
this Court entered an Order 9 certifying that the case could proceed as a class action on behalf of:
Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead of a nursing facility; who require more than 32 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility, and who do not have available (including through family supports, shared living arrangements, or enrollment in the ADHC waiver) other means of receiving personal care services.
III. Inadequacy of the July 2011 Emergency Rule
The July 2011 Emergency Rule governing allocation of slots on the EDA waiver
provides, in pertinent part:
E. Notwithstanding the priority group provisions, up to 100 EDA Waiver opportunities may be granted to qualified individuals who require emergency waiver services. These individuals shall be offered an opportunity on a firstcome, first-serve basis.
1. To be considered for an emergency waiver opportunity, the individual must currently receive the maximum amount of services allowable under the Long Term Personal Care Services Program and require institutional placement, unless offered an emergency waiver opportunity.
2. The following criteria shall be considered in determining whether or not to grant an emergency waiver opportunity: a. support through other programs is either unavailable or
9 Ruling on Plaintiffs’ Motion for Class Certification (Rec. Doc. 58, June 6, 2011) pp. 5-6.
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inadequate; b. the death or incapacitation of an informal caregiver leaves the
person without other supports; c. the support from an informal caregiver is not available due to a
family crisis; or d. the person lives alone and has no access to informal support. 37 La. Reg. 1490-91 (June 20, 2011) From the date the case commenced, when Plaintiffs notified Defendants that either the named Plaintiffs or specific class members, who required more than 32 hours week of LT-PCS, would seek a preliminary injunction on behalf of specific persons, Defendants agreed that LTPCS for those specific people would be provided in excess of the 32 hour cap, thus obviating the need to file and seek a preliminary injunction. Defendants have stipulated that the current level of LT-PCS hours will be extended at least until December 31, 2011, for all named Plaintiffs and six other individuals whose situations Plaintiffs’ counsel have brought to their attention. However, many other class members, including E.B. and C.D., discussed below, have already had their services reduced, and others are threatened with reductions, irrespective of their risk of deterioration and institutionalization. As of June 15, 2011, 1,567 persons who had more than 32 hours a week of service as of September 5, 2010 (the date the 32-hour cap went into effect), have had their service hours reduced to 32 hours a week or fewer.10 An additional 1,991 people who are currently receiving over 32 hours a week of LT-PCS
10 Exhibit 1, Third Declaration of Jeanne Abadie (“Abadie Decl.”), ¶¶ 2-4. Defendants provided Plaintiffs with a file entitled “Master Spreadsheet—Interrogatory No. 2” in response to Interrogatory No. 2 of Plaintiffs’ First Set of Interrogatories. This spreadsheet included information on individuals who were approved to receive more than 32 hours a week prior to the application of the September 5, 2010 reduction.
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are threatened with reduction because of the 32-hour maximum.11
The July 2011 Emergency Rule clearly represents a step in the right direction. For the
first time, some 100 class members will have an opportunity to access sufficient services to keep
them in their homes and communities without first having to enter a nursing home for their care.12 However, it still leaves substantial numbers of class members at risk of deterioration and
institutionalization while this case is being litigated.
Following the promulgation of the July 2011 Emergency Rule establishing a preference
on the EDA waiver waiting list for people on the LT-PCS program who need additional services
to stay out of a nursing home, counsel for the Plaintiffs requested informal discovery on the implementation of the Emergency Rule.13 They sent a letter containing questions to Defendants’
counsel, and met with Assistant Secretary Hugh Eley, his assistant Rick Henley, and Defendants’
counsel on July 13, 2011 to discuss the answers.
Since then, Plaintiffs’ counsel communicated with Defendants’ counsel to get more
specific information on how the July 2011 Emergency Rule would be implemented.
Specifically, Plaintiffs’ counsel sought information on how class members would be notified as
11 Exhibit 1, Abadie Decl. ¶5. It is interesting to note that Defendants do not appear to have applied the 32-hour maximum uniformly. This maximum was supposed to take effect for individuals who were assessed after September 5, 2010. Yet the data that Defendants supplied show that of almost 2,000 individuals whose plans of care were implemented after December 1, 2010—three months after the Rule took effect--over 400 were approved to receive more than 32 hours a week of LT-PCS. Abadie Decl. ¶¶89. Plaintiffs’ counsel has requested an explanation for this, but none has been provided. 12 Prior to the July 2011 Emergency Rule, the only groups that had priority for EDA waiver slots were individuals with substantiated cases of abuse or neglect, who, absent EDA Waiver services, would require institutional placement to prevent further abuse and neglect; individuals diagnosed with Amyotrophic Lateral Sclerosis (ALS); and individuals presently residing in nursing facilities for 90 or more continuous days. La. Admin. Code tit. 50, Ch. 21, §8105(B), Louisiana Register V. 36, No. 10, pp. 2217-20; Eley deposition (Rec. Doc. 38-4) p. 52, l. 6-15. 13 Exhibit 2, Declaration of Nell Hahn (“Hahn Decl.”), ¶¶ 2-4.
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to how to apply for an emergency waiver slot if they faced a risk of institutionalization if not provided with more than 32 hours a week of LT-PCS; information as to whether LT-PCS would be continued at current levels while emergency waiver applications were pending; and information as to whether only people whose reductions put them at exactly 32 hours would be able to apply for an emergency waiver slot. Plaintiffs counsel also sought copies of forms, guidelines, fact sheets, instructions, and other documents that will be revised as a result of these changes and all documents that will be used to implement the changes.14 Plaintiffs’ counsel also sought emergency EDA slots for the named plaintiffs and class members discussed in this Memorandum, through communications with defendant’s counsel.15
Defendants’ counsel’s response to those inquiries16 shows that DHH will consider only an individual for an emergency EDA waiver slot if he or she is currently approved for 32 hours per week of LT-PCS. Individuals approved for fewer than 32 hours must file an administrative appeal for the 32-hour maximum before DHH will consider them for emergency EDA slots. 1,255 persons who had been receiving more than 32 hours a week prior to the implementation of the cap have had their LT-PCS reduced to less than 32 hours.17
Further, an Emergency Elderly and Disabled Adult Waiver Slot Process and Protocol attached to Defendants’ counsel’s response (“Process and Protocol”) makes it clear that only persons for whom a cut in services would necessitate an immediate admission to a nursing facility will be granted waiver slots. Persons who appear to meet the eligibility requirements for an emergency slot receive a home visit from Office of Aging and Adult Services Regional Office
14 Id. ¶ 6. 15 Id. ¶8. 16 Id. ¶ 7 and Attachment C. 17 Exhibit 1, Abadie Decl., ¶7. Only 312 persons had their hours reduced to exactly 32. Id. ¶6.
8
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staff: “The purpose of the home visit is to determine if the individual can establish that additional services are necessary to prevent immediate admission to a nursing facility (emphasis supplied).”18
Thus, the following groups of class members continue to be placed at risk of institutionalization, despite the July 2011 Emergency Rule:
1. Individuals who need additional services to avoid deterioration or risk of nursing home placement, after the 100 slots set aside by the rule have been filled;19
2. Individuals who need additional services to avoid deterioration or risk of nursing home placement, whose hours of service have been or will in the future be reduced pursuant to the September 5, 2010 rule, to fewer than 32 hours per week;
3. Individuals who need more than 32 hours of LT-PCS a week, who are not able to remain in the community without deterioration while their applications for emergency EDA slots are pending.
4. Individuals who need more than 32 hours of LT-PCS a week for whom the lack of services will likely cause a decline in health, safety, or welfare that will lead to the individual’s eventual, though perhaps not immediate, placement in an institution.
IV. Class members’ needs for continued LT-PCS services above the cap As noted above, Defendants have agreed to extend services temporarily for a number of
class members that Plaintiffs’ counsel have learned about and brought to the attention of Defendants’ counsel. However, there is no reason to assume that all class members who need
18 Exhibit 2, Hahn Decl.Attachment C, Process and Protocol, p. 2. 19 At the meeting on July 13, 2011, Defendants indicated that they intended to set aside additional slots if
9
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such extensions of their services have contacted Plaintiffs’ counsel. The situations of the named plaintiffs, and of those class members who have come to the attention of Plaintiffs’ counsel, are likely to be typical of numerous other class members.
Many class members who require more than 32 hours a week of LT-PCS to remain safely in their homes are currently receiving (or have been approved to receive) less than 32 hours a week of LT-PCS. Class members20 P.M., E.S., and C.D. (discussed below) exemplify their plight. According to the July 2011 Emergency Rule, they are not eligible to apply for an emergency EDA waiver slot.
Class members who are approved for less than 32 hours of LT-PCS a week will not even be notified of the availability of emergency waiver slots or permitted to apply. In June 2011, 1,255 people had already faced reductions to less than 32 hours of LT-PCS a week.21 It is unknown how many of them need more than 32 hours to reside in the community, and would apply for emergency EDA waiver slots if they were told about them.
Named plaintiffs Kenneth Roman (discussed at pp. 6-7 of Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment, Rec. Doc. No. 36-1), Rickii Ainey (discussed at pp. 8-9 of Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment, Rec. Doc. No. 36-1), and Elizabeth Foster (discussed below) currently (and temporarily) receive more than 32 hours of LT-PCS by agreement with Defendants’ counsel.
Many class members who are eligible to apply for emergency EDA waiver slots because they are currently approved to receive 32 hours a week will not face immediate admission to a
the initial 100 were taken, but there is no assurance that this will take place. Exhibit 2, Hahn Decl., ¶5. 20 Plaintiffs refer to class members who are not named plaintiffs herein by initials. They have given Defendants’ counsel a list of the names of these class members. 21 Abadie Decl. ¶7.
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nursing facility if their hours are cut. They, or their families, will struggle to remain in their homes and communities, and experience deterioration in health, safety, and welfare that will lead to their eventual institutionalization. Preliminary injunctive relief is necessary to prevent this from happening. V.U.S., I.M.L., S.M., and E.B. (discussed below) exemplify their plight. A. Class members currently approved for less than 32 hours a week:
1. Class member P.M. P.M. is 54 years old and lives with her husband in Baton Rouge, Louisiana. She and her husband are both blind and have multiple disabilities.22 Mrs. M. has severe psoriasis and psoriatic arthritis, osteoarthritis, irritable bowel syndrome, asthma, diabetes, and congestive heart failure. Both of her knees have been replaced, and she has severe daily back spasms.23 Constant pain in her knees, hands, shoulders, back, and ankles make it impossible for her to perform activities of daily living independently. She cannot stand for more than five minutes at a time, so is unable to cook or clean house. She needs help for any task, like grooming, bathing, and even toileting, which requires gripping objects with her hands. She needs assistance transferring in and out of bed and moving in bed, and transferring in and out of a chair.24 She uses a wheelchair outside the house, and cannot propel herself in the chair or use a cane to navigate when using the wheelchair. She has incontinent episodes once or twice a day. She needs assistance in cleaning and dressing after these episodes, and in doing the large volume of laundry this generates.25 She must have assistance in bathing; having her food set out, cut up, and identified on her plate. 26 She also needs assistance cooking, doing dishes, shopping, and labeling purchased items in
22 Exhibit 3, Declaration of P.M. (“P.M. Decl.”), ¶¶1-4. 23 Id. at ¶7. 24 Id. at ¶¶8, 9 and 12. 25 Id. at ¶¶ 13 and 14.
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Braille so that she can identify them when the worker is not there.27 Mrs. M.’s husband, D., also has severe disabilities and receives LT-PCS. Mr. M. is blind,
and has avascular necrosis, arthritis, and diabetes. He uses a wheelchair, and is unable to assist in his wife’s care.28
Mrs. M. is currently receiving 38 hours a week of LT-PCS.29 She believes if her LT-PCS is capped at 32 hours a week, both she and her husband are at risk of having to enter a nursing home for care.. If Mrs. M. were to be institutionalized, they would no longer be able to afford their subsidized apartment, and it is likely that Mr. M. would also enter a nursing home. With their current hours of help, they are able to enjoy their home together and to participate in the community by going to church, concerts, and restaurants. All of this is jeopardized by the 32hour cap on LT-PCS hours.30
W. Patrick Gahan, M.D., is a Board-certified internist and gerontologist practicing in Baton Rouge, Louisiana. He has treated Mrs. M. for two years.31 He states in his declaration that Mrs. Marshall’s multiple medical conditions put her in a “precarious situation,” and that she needs assistance in performing all personal care tasks and housekeeping.32 He states that the 38 hours of personal care assistance that she currently receives is the minimum necessary for her to reside safely in the community, and that a reduction to 32 hours a week will jeopardize her health and safety and place her at “significant risk” of having to enter a nursing facility, where her
26 Id. at ¶¶15 – 16. 27 Id. at ¶¶19 – 21. 28 Id. at ¶4. 29 Id. at ¶12. 30 Id. at ¶¶22 – 24. 31 Exhibit 4, Declaration of W. Patrick Gahan, M.D., ¶¶1 and 2. 32 Id. at ¶¶3-7.
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physical and emotional condition would probably deteriorate.33 2. Class member E.M.S. E.M.S. is 70 years old. She lives alone in Winnsboro, Louisiana, where she did heavy
farm labor until she was 50 years old. She raised nine children.34 She now has arthritis and diabetes, and weighs approximately 330 lbs. As a result of her arthritis, she loses her grip on items such as a fork, a knife or a hairbrush.35 She must have assistance with grooming, because of her inability to grip items and her inability to raise her arms. Often, she is unable to feed herself, and must be spoon fed.36 She is able to walk, but her balance is so poor that she uses a wheelchair when outside her house. Because her house is too small for her to be able to use the wheelchair at home, she moves around her house by holding on to furniture or the walls, but she is constantly afraid of falling.37 She cannot get in and out of a chair without assistance, and has difficulty moving around in bed. She cannot get on and off the toilet without help, adjust her clothing, or clean herself independently when toileting. She has incontinent episodes daily, and needs help bathing and dressing.38 She is unable to prepare meals, do her laundry or attend to household chores.39 She must undertake all activities very slowly, because she any exertion causes shortness of breath.40
E.M.S.’s LT-PCS hours were reduced from 38 hours a week to 32 hours a week in April
33 Id. at ¶¶ 8-11. 34 Exhibit 5, Declaration of E.M.S., ¶1. 35 Id. ¶2. 36 Id., ¶¶ 3, 12. 37 Id. ¶4. 38 Id. ¶5. 39 Id. ¶6. 40 Id. ¶7.
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of 2011.41 Her hours have since been temporarily restored to 38, by agreement with Defendants’
counsel. She has not received any notice of the availability of an emergency waiver slot if she
needs additional hours to remain out of a nursing home. When she had only 32 hours a week of
assistance, Ms. S was not receiving the care she needed to remain in her home. Her worker did not have time to prepare her evening meal.42 Even with the 38 hours that she is currently getting, she is not being cleaned properly.43 She feels that she is getting weaker, and believes she will have to go into a nursing home if she does not get more help soon.44
3. Class member C.D. C.D. is 62 years old. She lives alone in Abbeville, Louisiana.45 She has multiple chronic
medical conditions, including Chronic Obstructive Pulmonary Disease, rheumatoid arthritis,
congestive heart failure, diabetes, degenerative disk disease, macular degeneration, major depression, and panic disorder.46 She needs extensive help in all activities of daily living, including toileting, bathing, dressing, ambulating, and eating.47 She cannot propel herself in her
manual wheelchair, cannot get out of bed by herself without great pain, and often must be fed by hand in order to eat or drink.48 It takes her five to six hours a day to perform the basic activities of daily living with assistance.49 In addition to this, she must have the assistance of a worker to
take her to the grocery store and assist her in shopping, and in doing her laundry and
41 Id. ¶18. 42 Id. ¶21. 43 Id. ¶22 44 Id. ¶¶23-26. 45 Exhibit 7, Declaration of C.D., ¶1. 46 Id. ¶2. 47 Id. ¶5. 48 Id. ¶¶6,7. 49 Id. ¶¶8-13.
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housework.50 Ms. C.D. was awarded 32.5 hours a week of LT-PCS in 2009. After her annual
assessment in December 2010 incorrectly scored her as independent in toileting, transferring, and eating, her services were terminated completely.51 She appealed the termination. Rather than find in her favor, the Administrative Law Judge told her to reapply for services, which she did. Her June 2011 assessment correctly showed that she needs extensive assistance in the areas of toileting, transferring, eating, bathing, dressing, locomotion, and personal hygiene. Her services were reinstated at a level of 30 hours a week in July of 2011.52
Her current level of services is inadequate. She often goes to bed and stays there, as soon as her worker leaves. She frequently does not have enough assistance to bathe and have three meals a day, and feels like a prisoner in her bed.53
Lecy Broussard, a Board-certified Psychiatric and Mental Health Nurse practitioner, has been treating C.D. for approximately the last five years for Major Depression and Panic Disorder.54 She states in her declaration that when C.D. is required to provide care for herself, she experiences greater pain and becomes more depressed.55 With services at their current level of 30 hours a week, Ms. Broussard notes that C.D. is not eating properly (because she does not get all her meals), is limiting her intake of liquids (because she does not have help to go to the toilet) and must perform many self-care activities that cause her pain and exacerbate her depression. She also relies on her 13-year-old grandson for care, which causes her undue
50 Id. ¶¶14-17. 51 Id. ¶18. 52 Id. ¶¶18-20, 23. 53 Id. ¶¶23-24. 54 Exhibit 8, Declaration of Lecy Broussard, A.P.R.N, ¶¶1-3. 55 Id. ¶4.
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emotional stress.56 Ms. Broussard states in her declaration that she does not believe that the current amount
of services that C.D. receives is enough to keep her out of a nursing home. She states that it is her opinion that, without additional assistance, C.D. ‘s mental and physical health will continue to deteriorate and that she will be forced to go into a nursing home. She recommends that she receive ten to twelve hours per day for optimal emotional and physical functioning.57
C.D. did not appeal the level of services she was given in June of 2011. She did not think that her needs would be considered, and at any rate the amount of services she could receive on appeal, 32 hours a week, would still be inadequate.58 She was not told that there was a possibility that she could qualify for an emergency waiver slot if she appealed and received 32 hours a week. She does not think she can continue living on her own with only 30 hours a week of care, and is considering going into a nursing home.59 B. Class members approved for 32 hours a week, who will require eventual institutionalization if they do not receive more hours:
1. Class member I.M.L. I.M.L. is 81 years old and has been receiving LT-PCS since 2007.60 She is currently approved to receive 39 hours of LT-PCS a week.61 Following her annual reassessment in July, 2011, she received a notice informing her that she had been approved to receive 32 hours a week of services, beginning August, 2011. The notice did not inform her that she could apply for an emergency EDA waiver slot if the 32 hours of service were insufficient to prevent her from
56 Id. ¶¶8-10. 57 Id. ¶¶11-12. 58 Exhibit 7, Declaration of C.D., ¶¶25, 27. 59 Id. ¶31. 60 Exhibit 9, Declaration of I.M.L. ¶¶1, 12.
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having to enter a nursing home for care. 62
Having worked in various occupations, including as a cook, nurse’s aide, and a janitor
until she was 76 years old, and having raised nine children, I.M.L. now relies on Social Security, Medicaid, and Medicare.63 She has been diagnosed with diabetes, kidney disease, arthritis, gout, and Parkinson’s Disease.64 She lives alone in New Orleans, where she has lived all her life, and still participates in her church and sees neighbors and friends.65 Her disabilities now leave her
dependent on her LT-PCS worker for all of her activities of daily living. She cannot pick up a
glass to drink, hold a fork or spoon to feed herself, adjust her clothing or clean herself after
toileting, get up from a chair or bed without great effort and pain, or bathe without assistance. She relies on her worker for meal preparation, housekeeping, and shopping.66 Her worker puts
her to bed when she leaves at 2:00 or 3:00 in the afternoon, and because of her disabilities, she often remains in bed until the worker returns the following day at 9:00 a.m.67 If her LT-PCS
hours are reduced below their current level, she very much fears that she will have to go into a nursing home for care.68
Scharmaine Baker is an Advanced Practice Registered Nurse with a doctorate in nursing.
She is a Board-certified Family Nurse Practitioner who specializes in making home visits to care
61 Id. ¶15. 62 Id. ¶16. Since she signed her declaration in support of this motion, I.M.L. has been offered an emergency EDA waiver slot. See Exhibit 1, Abadie Decl., ¶10. However, many class members in her situation have experienced such reductions without having been offered an EDA slot. 63 Id. ¶¶3, 24, 26. 64 Id. ¶6 ,7. 65 Id., ¶¶1, 22-23. 66 Id. ¶¶4, 5, 9-11, 18-20. 67 Id. ¶21. 68 Id. ¶28.
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for people with disabilities in New Orleans. She visits approximately 500 patients currently. 69 She has been treating I.M.L. for approximately seven years. She visits her once a month to monitor her medications, prescribe home care therapies, and monitor her overall health with the goal of keeping her out of the hospital.70 She states in her declaration that persons with the degree of disability that I.M.L. has generally require at least six hours a day of personal care and housekeeping assistance to avoid deterioration.71 She testifies that I.M.L.’s health will deteriorate due to the consequences of having to spend too much time in bed, missing meals, and having to use her bedside commode. She states that it is likely that I.M.L. will have to seek care in a nursing home if she does not have an adequate home care.72
2. Class member V.U.S. V.U.S. is 36 years old and has quadriplegia, as a result of injuries she received when she was 25 years old and in medical school. She has obtained a Masters in Public Health from Tulane University since her injury, and until recently was working as a Clinical Research Coordinator at the Oschsner Foundation in New Orleans.73 Currently, she is looking for fulltime work and is working part-time for a medical laser company.74 She lives alone in New Orleans, but enjoys an active life in the community, socializing in her home and her friends’ homes, going to movies and out to dinner, and attending local festivals.75 Because of her disabilities, V.U.S. must have assistance for all of her personal care activities. She currently receives 39.5 hours a week of LT-PCS, though she at one time received
69 Exhbit 10, Declaration of Scharmaine Baker, D.N.P.,¶¶1-2. 70 Id. ¶3. 71 Id. ¶¶4-8. 72 Id. ¶¶9-10. 73 Exhibit 11, Declaration of V.U.S., ¶¶7, 9. 74 Id. ¶8.
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56 hours a week.76 As she states in her declaration, her morning care activities, which include emptying her catheter bag, transferring via Hoyer lift from bed into a shower chair and back, bathing, grooming, assisting with a bowel movement, dressing, diapering on occasion, preparing breakfast, making lunch, and doing dishes, take three to four hours a day. V.U.S. is able to care for herself during the day, especially when she is working and co-workers can assist her. Her worker returns in the evening. The personal care worker’s evening chores, including preparing dinner, doing the dishes, doing housework and laundry, then putting V.U.S. to bed, take approximately three hours. In addition, the worker must assist V.U.S. with shopping and errands, which takes her two to three hours a week.77
V.U.S. was notified in July of 2011 that her hours of LT-PCS will be reduced to 32 per week. The notice she received did not provide any information on how she could obtain an emergency waiver slot if she cannot make it on 32 hours a week. She cannot. Her worker simply cannot provide her with the care she needs in 32 hours a week. Because of the likelihood that she will miss meals, have to remain in bed or in her wheelchair for extended periods, and will find it hard to maintain hygiene and grooming. She anticipates that she will have to move into a nursing home if she has to face such a drastic cutback in hours.78
Dr. Cherie Drez is a Board-certified internist in New Orleans who has treated V.U.S. for four years.79 Her practice includes many people with spinal cord injuries, and she is familiar
75 Id. ¶¶1, 15. 76 Id. ¶13 77 Id. ¶¶3, 5-6. 78 Id. ¶¶16-19. Since she signed her declaration, V.U.S. has been informed that she will be offered an EDA waiver slot. See Exhibit 1, Abadie Decl., ¶10. However, many other class members in similar situations have not had their services extended nor been offered emergency waiver slots, as Ms. S. has due to her participation in this action. 79 Exhibit 12, Declaration of Cherie Drez, M.D., ¶¶1, 3-5.
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with their home care needs.80 She states in her declaration that she believes V.U.S.’s health and safety would be improved if she were to receive 42-45 hours of care a week.81 An adequate
amount of personal care is needed in order to insure that V.U.S. receives adequate hydration and
nutrition, that her catheter bag is emptied timely, and that she does not have to remain in her wheelchair for excessive lengths of time, which can cause skin breakdown.82 Dr. Drez also
states that it is her professional opinion that a reduction in home care hours from the present 39.5 to 32 hours will put V.U.S.’s health in jeopardy.83 She will be at risk of increased urinary tract infections, skin breakdowns and autonomic dysreflexia, a life-threatening condition.84 Dr. Drez
states that she believes that if V.U.S. were only provided with 32 hours of home care a week, her
health would deteriorate and she would eventually be hospitalized and from there be forced into an nursing home.85
3. Class member S.M.
S.M. is 45 years old, the survivor of a spinal cord injury in a diving accident at age 14 and a massive stroke in 2007.86 Since her stroke, she has become morbidly obese, and weighs close to 400 pounds.87 She is fully incapacitated. The extent of her ability to care for herself is
her ability to drink from a cup is placed in front of her so that she can put her left thumb through the handle. 88 She cannot move herself in bed.89 She has a suprapubic urinary catheter, but is
80 Id. ¶4. 81 Id. ¶11. 82 Id. ¶¶8-11. 83 Id.¶12. 84 Id. ¶¶8. 13. 85 Id. ¶13. 86 Exhibit 13, Declaration of S.M., ¶¶1-5. 87 Id. ¶16. 88 Id. ¶6. 89 Id. ¶8.
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incontinent of bowel and must be cleaned and changed in bed.90 She must be given bed baths and needs total assistance with personal hygiene.91 She must be transferred to or from bed to a
wheelchair. It takes two people to move her in a Hoyer lift, and she must be taken to medical appointments in an ambulance.92 She eats and takes medicine via a feeding tube.93 She is prone to seizures and has aphasia as a result of the stroke. She must be frequently repositioned.94
S.M. lives with her 17-year-old daughter, who attends high school and has a full-time job as an aide in a nursing home.95 Ms. M’s sister is her paid personal care worker, and also
provides some unpaid care, but she is seeking a better-paying job and may be less available in the future.96
When S.M. was first assessed and awarded LT-PCS, prior to March 2009, DHH
determined that she needed 52 hours of LT-PCS a week to carry out her activities of daily living,
housekeeping tasks, shopping, and accompanying to medical appointments. When she was
assessed after March 2009 (when the 42-hour cap went into effect), her hours were reduced to 38 per week.97 She is scheduled to be assessed in August, and if the 32 hour maximum were to be
applied, she would only be able to get 32 hours a week. She will not be able to remain in her
home with only 32 hours a week of help, because her family will not be able to provide the supplemental care she needs.98 She desperately wants to remain at home with her daughter, who
90 Id. ¶¶9-10. 91 Id. ¶12. 92 Id. ¶¶11,16. 93 Id. ¶13. 94 Id. ¶¶14-15. 95 Id. ¶¶18-19. 96 Id. ¶24. 97 Id. ¶7. 98 Id. ¶28.
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is still young and still needs her mother, but knows that she will deteriorate and have to go into a nursing home for care if her hours are further reduced.99
Daniel Renois, a Board-certified Family Practice physician has been treating S.M. for approximately three years.100 His declaration confirms her disabilities and her need for total assistance in areas personal care, including transfering, bathing, dressing, personal hygiene, emptying her urinary catheter bag whenever needed, recognizing seizure activity, repositioning her, performing housework and shopping.101 He states that she needs at least the 38 hours of personal care services that she receives now to remain safely in her home. If her services were to be reduced, he is concerned that she would not get meals timely, would not be changed after accidents, and that her catheter bag would not be emptied timely, potentially leading to a rapid deterioration in her health.102
4. Class member E.B. E.B. is twenty-five years old. On July 10, 2008, he was in a car accident and incurred a traumatic brain injury. He was in a coma for 22 days. After the accident he was in Our Lady of the Lake Hospital until September 9, 2008, when he was moved to Touro Rehabilitation Center in New Orleans, Louisiana. He was discharged to his mother’s home in December of 2008.103 His injury has left him with little functional use of his arms and legs. 104 He is fed, and receives medications, through a PEG tube.105 He has a seizure disorder as a result of the
99 Id. ¶30. 100 Exhibit 14, Declaration of Daniel Renois, M.D., ¶¶1-2. 101 Id. ¶¶2-7. 102 Id. ¶¶10-12. 103 Exhibit 15, Declaration of L.M., ¶4 104 Id. ¶¶7-8. 105 Id. ¶12.
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traumatic brain injury.106 He is incontinent of bowel and bladder and uses adult diapers.107 He cannot transfer from a sitting to a standing position or from a standing to a sitting position without assistance, and cannot stand up straight for more than a couple of steps. He is not able to use a walker because of his inability to use his hands and arms. He cannot propel himself in a wheechair.108
Based on E.B.’s inability to functionally use his hands, arms or legs, he needs full help dressing and undressing, as well as bathing.109 His doctor has recommended that he be bathed in the tub daily because of his use of diapers and because of his PEG tube. The area where the catheter is inserted into the stomach must be cleaned thoroughly on a daily basis.110
E.B.’s traumatic brain injury also left him with poor judgment, impaired short and long term memory, and problems with expressive and receptive speech.111
He had surgery on his right arm in June of 2011 to enable him to bend his arm. He had to have an additional surgery to repair some damage on August 2, 2011. His surgeon has prescribed use of a Continuous Passive Motion (“CPM”) machine every day. The machine mechanically bends his arm and straightens it out. His arm is supposed to be in the machine for six hours, then he takes a two-hour break, and is then he is back on the machine for another six hours. He needs assistance to be strapped into the machine. He must be assisted into and out of the CPM machine and must be reminded to continue to use it. 112
106 Id. ¶17. 107 Id. ¶11. 108 Id. ¶¶10, 13. 109 Id. ¶¶10, 11. 110 Id. ¶11; Exhibit 16, Declaration of Vasanthi Vinayagam, M.D. ¶8. 111 Id. ¶9. 112 Id. ¶12.
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E.B.’s seizures are only partially controlled with medication. It is important for someone
to be with him to be able to recognize when he is having a seizure, ensuring that he is safe, and report the seizure to me so that his medication can be adjusted if needed.113
He receives physical therapy, occupational therapy, and speech therapy three times a
week to assist him in rehabilitating from his injuries. He must be accompanied to these appointments, which takes his personal care worker approximately 18.5 hours a week.114
E.B. lives with his mother, who works full time as a sewer inspector with the City of
Baton Rouge. Her job, and commuting back and forth to work, cause her to have to be absent
from the home for 11 to 12 hours a day on weekdays, and ten hours a day every other weekend. She needs to work to support herself and E.B.115
E.B.’s hours of LT-PCS were reduced from 42 to 32 per week in June of 2011.116 This
has caused his personal care worker not to be able to finish her work for him each day. For example, she sometimes does not have time to bathe him as his doctor recommends.117 His mother has had to miss a great deal of work, and is worried about running out of leave.118
E.B.’s doctor, Vasanthi Vinayagam, a family practitioner in Baton Rouge, confirms his
needs for services to change and clean him after incontinence episodes, transfer, ambulate, dress,
bathe, clean his PEG tube site, perform household chores, assist with his Continuous Passive
113 Id. ¶113. 114 Id. ¶14; Exhibit 15, Declaration of L.M. ¶15. 115 Id. ¶¶2-3. 116 Id. ¶¶19-20. His services have not been restored to the 42-hour level. However, due to Plaintiffs’ counsel’s request through Defendants’ counsel, he has been assessed for an emergency EDA slot. See Exhibit 1, Abadie Decl. ¶10. Many class members in his position have not been assessed for an emergency EDA slot. He has not received a decision as to whether he will receive an EDA waiver offer. 117 Id. ¶16. 118 Id. ¶3.
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Motion machine, and accompany him to medical appointments.119 In addition, she confirms his
need for someone to be with him at all times to monitor seizure activity. She is of the opinion
that E.B. needs more than his current 32 hours of personal care services a week to ensure that he does not deteriorate.120
5. Named Plaintiff Elizabeth Foster
Named Plaintiff Elizabeth Foster is 84 years old and has a history of strokes, arthritis, and cognitive impairment.121 She lives alone in New Orleans, Louisiana, next door to her daughter, Donna Zeno.122 Due to Ms. Foster’s medical conditions, she has no ability to perform her own personal care.123 Ms. Foster cannot use her left arm.124 She cannot stand or put any weight on her legs. She is unable to reposition her body in bed.125
Ms. Foster requires total assistance with transferring, toileting, bathing, personal hygiene
tasks, and dressing. She often needs to be fed by hand, as she sometimes cannot feed herself with a spoon. 126
Ms. Foster. is incontinent of bowel and bladder and needs to be promptly cleaned and
changed after her frequent incontinent episodes, to make sure that she does not develop pressure sores or other health problems. 127
She cannot do her own shopping, use a telephone, prepare a meal or perform any housekeeping chores, including laundry.128 She receives 39 hours a week of LT-PCS. In
119 Exhibit 16, Declaration of Vasanthi Vinayagam, M.D., ¶¶1-12, 14. 120 Id. ¶13. 121 Exhibit 17, Declaration of Donna Zeno, ¶¶1, 7. 122 Id. ¶2. 123 Id. ¶¶7-9. 124 Id. ¶10. 125 Id. ¶11. 126 Id. ¶9.
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addition, she receives services from 8:00 a.m. to 3:00 p.m., five days a week, at an Adult Day Health Care Center.129
Ms.Foster’s LT-PCS worker takes care of Ms. Foster. at home in the morning prior to
going to the ADHC, in the evenings after she returns home from the ADHC, and on weekends, as well as accompanying her to medical appointments and grocery shopping for her. 130
Ms. Foster’s daughter, Elizabeth Zeno, lives next door to her mother and sees her daily.
However, due to her own disabilities, Ms. Zeno cannot assist her mother with her activities of
daily living, and cannot dependably assist with her with her household needs, including meal preparation.131
Ms. Foster’s treating physician, Lisa Richards, is an internist in New Orleans.132 She has
been treating Ms.Foster for more than nine years. She states in her declaration that Ms. Foster’s
overall medical condition is not expected to improve; on the contrary, her dementia is gradually
progressing, which will lead to a greater and greater need for assistance. The fact that she suffers from a combination of these diseases increases her need for assistance.133 Dr. Richards affirms
Ms. Foster’s need for total care in transferring, toileting, bathing, personal hygiene tasks, dressing, feeding, preparing meals, and household chores, such as housekeeping and laundry.134
Dr. Richards states in her declaration that reducing Ms. Foster’s current in-home personal
care services would jeopardize her health care. She states that, in her opinion, if Ms. Foster’s
127 Id. ¶13. 128 Id. ¶14. 129 Id. ¶¶15-16. 130 Id. ¶16. 131 Id. ¶¶2, 20-21. 132 Exhibit 18, Declaration of Lisa Richards, M.D., ¶1. 133 Id. ¶3. 134 Id. ¶¶4-6.
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hours of LT-PCS were to be reduced to 32 per week, she would deteriorate physically and cognitively, and would require institutionalization in a nursing facility.135
Ms. Foster. does not want to go into a nursing home. She enjoys attending Kingsley House Adult Day Health Care Center Mondays through Fridays.136 Ms. Foster also enjoys to church.137 If she were to be institutionalized in a nursing home, her mental and physical condition would deteriorate rapidly and unnecessarily.138
V. Standard for Preliminary Injunctive Relief
A plaintiff seeking a preliminary injunction 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 v. Natural Res. Def. Council, Inc.139 Despite this deferential standard, “a decision grounded in erroneous legal principles is reviewed de novo.” Byrum v. Landreth;140 Bluefield Water Ass’n v. City of Starkville.141
The grant or denial of a preliminary injunction is almost always based on an abbreviated
set of facts, requiring a delicate balancing of the probability of ultimate success at final hearing
with the consequences of immediate irreparable injury that could flow from the denial of preliminary relief. Enter. Int’l, Inc. v. Corporacion Estatal Petrolera Ecuadoriana;142 see also
135 Id. ¶¶8-12. 136 Exhibit 17, Declaration of Donna Zeno, ¶18. 137 Id. ¶5. 138 Id. ¶25; Exhibit 18, Declaration of Lisa Richards, M.D., ¶13. Since Ms. Zeno signed her declaration, Ms. Foster has been told she will be assessed for an emergency EDA slot, but she does not know if she will be offered a slot. Exhibit 1, Abadie Decl. ¶10. 139 555 U.S. 7, 20 (2008). 140 566 F.3d 442, 445 (5th Cir. 2009). 141 577 F.3d 250, 252-53 (5th Cir. 2009) 142 762 F.2d 464, 472 (5th Cir. 1985);
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Univ. of Tex. v. Camenisch143 (a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing).
In the instant case, the class raises a very strong likelihood of ultimate success on the merits under the Americans with Disabilities Act (“ADA”),144 the Rehabilitation Act of 1973 (“Section 504"),145 and their implementing regulations. This Court has already found, in connection with Defendants’ Motion for Summary Judgment, that the State’s system violates the ADA by requiring a greater risk of institutionalization for people who require more than 32 hours a week of assistance. The State has, in response, taken steps that will allow a small number of class members to avoid this risk. However, because the Defendants’ new rule setting aside only 100 emergency EDA waiver slots and is so limited both in size and in its applicable criteria, it will not prevent irreparable injury to numerous class members. Both the balance of hardships and public interest weigh significantly in favor of the class. Accordingly, Plaintiffs are entitled to a preliminary injunction requiring Defendants to either:
(a) Continue the services of class members whose services have not yet been reduced to the 32-hour maximum at their current level, and to provide a mechanism for class members whose services have already been reduced to obtain services in excess of the 32-hour cap; or, in the alternative,
(b) Expand the operation of the new rule making EDA waiver opportunities available persons subjected to Defendants’ cuts, in order to prevent irreparable harm to class pending trial on the merits in this action, and to ensure that the process effectively and expeditiously provides
143 451 U.S. 390, 395 (1981). 144 42 U.S.C. §§ 12101-12213.
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these waiver services. To be effective, such expansion would have to include:
(a) Granting emergency waiver slots to individuals who need more than 32 hours a week of LT-PCS to avoid a decline in health, safety, or welfare that will lead to the individual’s eventual, though perhaps not immediate, placement in an institution;
(b) For those class members who apply for emergency waiver slots whose services have not yet been reduced, maintaining services at their current level until Defendants have acted on their applications;
(c) For class members whose services have already been reduced, who apply for emergency waiver slots, restoring services to their previous level until Defendants have acted on their applications;
(d) Notifying persons who have been approved for less than 32 hours a week of LT-PCS of the availability of emergency waiver slots and afford them an opportunity to apply for them; and
(e) If the person is found to be in need of an emergency waiver slot, maintaining their LT-PCS hours at the level that they had prior to the application of the September 5, 2010 rule until they begin to receive EDA waiver services.
VI. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act require Defendants to take all reasonable steps to avoid placing individuals at risk of institutionalization.
The parties and the United States Department of Justice have submitted extensive briefs in this case on the requirements of the ADA and Section 504. This Court correctly held that “a State’s program violates the ADA if it creates the risk of segregation; neither present nor
145 29 U.S.C. § 794a.
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inevitable segregation is required.”146 This holding has received additional support recently in a
technical assistance guide promulgated by the Unites States Department of Justice to assist state
and local governments to comply with the ADA.147 In that guide, the agency that Congress
tasked with the responsibility of promulgating regulations to implement the ADA148 has
interpreted the Act and regulations to apply to persons, like the class members in this case, who
are at risk of institutionalization. The technical assistance guide states:
A plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity’s failure to provide community services or its cut to such services will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution. (emphasis supplied).
According to the Justice Department, public entities have a duty to take all reasonable
steps to avoid placing individuals at risk of institutionalization “where budget cuts require the
elimination or reduction of community services specifically designed for individuals who would
be institutionalized without such services.” In such cases,
Public entities may be required to make exceptions to the service reductions or to provide alternative services to individuals who would be forced into institutions as a result of the cuts If providing alternative services, public entities must ensure that those services are actually available and that individuals can actually secure them to avoid institutionalization. (emphasis supplied).
Thus, the court in Brantley v. Maxwell-Jolly149 stated: “..[T]o the extent that Defendants
are claiming that alternative services satisfy their obligations under the integration mandate,
146 Order on Defendants’ Motion for Summary Judgment (Rec. Doc. No. 54) at 6 (citing Fisher v. Oklahoma, 335 F.3d 1175, 1181 (10th Cir. 2003); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1164 (N.D. Cal. 2009); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003); Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034 (D. Haw. 1999)). 147 http://www.ada.gov/olmstead/q&a_olmstead.htm. 148 42 U.S.C. §12134(a). In Frame v. City of Arlington, __F.3d __, 2011 WL 4089778 (5th Cir., Sept. 15, 2011, en banc) the Court noted at *4 that the views of the Department of Justice on the construction of the ADA “warrant respect,” and may be entitled to more deference. 149 656 F. Supp. 2d 1161, 1174 (N.D. Cal. 2009), appeal docketed, No. 11-71801 (9th Cir. Jun. 27, 2011).
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Defendants certainly bear the burden of ensuring more than a “theoretical” availability of such services.” And in V.L. v. Wagner,150 the court enjoined change in eligibility standards that would reduce or terminate in-home personal care services, creating a risk of institutionalization for people with disabilities, where the record demonstrated that alternative services would not be available for a large portion of class members who face a risk of institutionalization. VII. Plaintiffs need not demonstrate that they will be immediately institutionalized if adequate LT-PCS is not available.
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 to seek necessary care. In Fisher,151 the Seventh Circuit found that Oklahoma’s policy of limiting prescriptions for persons living in the community, but not for persons living in nursing homes, violated the ADA’s integration mandate, though there was no allegation that any of the plaintiffs would be immediately institutionalized because of the limit. Rather, the evidence showed that many of the plaintiffs would remain in their homes “until their health ha[d] deteriorated” and would “eventually end up in a nursing home.”152
In Hiltibran v. Levy,153 the court held that Missouri violated the integration mandate of the ADA when it refused to provide incontinence briefs under its Medicaid state plan to adults residing in the community. The court held that despite the plaintiffs’ ability thus far to pay for the briefs themselves to avoid institutional placement, the plaintiffs were nonetheless likely at
150 669 F. Supp. 2d. 1106, 1120 (N.D. Cal. 2009). 151 335 F.3d 1175, 1185 (10th Cir. 2003). 152 Id. (emphasis added). 153 ___ F. Supp. 2d ___, 2011 WL 2534332 (W.D. Mo. June 24, 2011).
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risk of institutionalization because the cost of the briefs strained the plaintiffs’ already precarious financial situations, and caused them to go to great lengths to avoid institutionalization.154
In Brantley v. Maxwell-Jolly, the court granted a preliminary injunction against cuts in Adult Day Health services, explicitly rejecting the defendants’ assertion that “in order to state a Title II violation, Plaintiffs must show that the [State’s reduction in community-based services] leaves ‘no choice’ other than to be institutionalized . . .” The court held, instead, as has this Court, that “the risk of institutionalization is sufficient.”155 See also V.L., supra,156 (concluding that plaintiffs may establish a violation of the integration mandate by showing that the denial of services could lead to an eventual “decline in health” that puts them at “risk [of] being placed in a nursing home.”).
Similarly, in Cruz v. Dudek,157 the district court found that although the plaintiffs resided in the community for multiple years without the services they sought, they were likely at risk of institutionalization due to the lack of sufficient community services. VIII. Plaintiffs’ requested modifications are reasonable.
It is well-established that the ADA and Section 504 both require Defendants to make reasonable modifications and accommodations to their policies, practices, and procedures when necessary to avoid discrimination.158 In a reasonable accommodation and modification claim, it is the plaintiff’s obligation to articulate a modification that “seems reasonable on its face.” US
154 Id. at *3, *7. 155 656 F. Supp. 2d at 1170. (quotation marks omitted). 156 669 F. Supp. 2d at 1120. 157 2010 WL 4284955, at *3-7, 13 (S.D. Fla. 2010 Oct. 12, 2010). 158 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(7).
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Airways, Inc. v. Barnett;159 see also Johnson v. Gambrinus Co./Spoetzl Brewery160 (plaintiff meets his burden of proof “by introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases”); Skerski v. Time Warner Cable Co.161 (“plaintiff bears only the burden of identifying an accommodation, the costs of which…do not clearly exceed its benefits,” i.e., that is not “clearly ineffective or outlandishly costly”). If the plaintiff articulates a reasonable modification, then the burden shifts to the defendant to prove that the proposed modification would impose an undue burden on its resources or a fundamental alteration of its program. Olmstead v. L.C.;162 Frederick L. v. Dep’t of Pub. Welfare.163
The reasonableness of a particular accommodation “depends on the individual circumstances of each case” and “requires a fact-specific, individualized analysis of the disabled individual’s circumstances and accommodations that might allow him to meet the program’s standards.” Wong v. Regents of the Univ. of Cal.164
The modifications that Plaintiffs request in the instant action are the minimum necessary to insure that class members are able to safely remain in their homes and communities. There must be exceptions to the blanket policy of capping LT-PCS hours at 32 per week that will enable class members to have an adequate amount of services. Defendants have taken steps toward recognizing and providing for this in the July 2011 Emergency Rule. However, the emergency waiver slots offered as alternative services in Defendants’ July 2011 Emergency Rule
159 535 U.S. 391, 401 (2002). 160 116 F.3d 1052, 1059 (5th Cir. 1997) 161 257 F.3d 273, 284 (3d Cir. 2001) 162 527 U.S. 581, 603 (1999) 163 364 F.3d 487, 492 n.4 (3d Cir. 2004). 164 192 F.3d 807, 818 (9th Cir. 1999).
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must not simply be theoretically available. Defendants must insure that they are “actually available and that individuals can secure them to avoid institutionalization,” for whoever requires these services.
First, given the fragility and extreme needs of persons who receive LT-PCS, and the large number of individuals whose services have been reduced, it is doubtful that 100 EDA slots will be adequate to meet the needs of all individuals placed at risk by the reductions. Second, alternative services will only prevent the risk of deterioration and institutionalization if they are made available at a meaningful time—before the cuts that threaten to force class members into nursing homes, or threaten their health and safety, actually occur—or as soon as possible thereafter. Requiring class members whose services have been reduced to less than 32 hours, but who need more than 32 hours of services to avoid deterioration and institutionalization, to go through a lengthy administrative appeal process before even being able to apply for alternative services, unreasonably limits the availability of the relief. As set forth above in part VI, supra, the standard for awarding an emergency EDA slot must be a showing that a class member will experience a deterioration in health or safety that will require eventual instituitionalization, rather than immediate admission to a nursing facility. And there must be adequate provision for maintaining services until the emergency waiver services actually become available. IX. Irreparable Injury
In demonstrating the likelihood of irreparable harm, the moving party need only “establish that at the time of the injunction it was under a substantial [] threat of harm which cannot be undone [] through monetary remedies,” Spiegel v. City of Houston.165
It is well established that the loss of Medicaid benefits constitutes irreparable harm.166
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Indeed, "[t]he nature of [the] claim - a claim against the state for medical services - makes it
impossible to say that any remedy at law could compensate" plaintiffs. McMillan v. McCrimon167; see also Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly168 (showing that
Medicaid recipients would be denied needed medical care constituted irreparable harm); Me. Ass'n of Interdependent Neighborhoods v. Petit169 (court found that absent the requested
injunction plaintiff would be forced to leave her family and enter a nursing home, irreparably injuring her physical and mental health); accord, Kai v. Ross170 (denial of Medicaid benefits
constitutes a "danger to plaintiffs' health, and perhaps even their lives"); Mass. Ass'n of Older Ams. v. Sharp171 (termination of benefits that causes individuals to forgo medical care is clearly irreparable harm); Beltran v. Meyers172 (irreparable injury is shown when enforcement of a Medicaid rule "may deny [plaintiffs] needed medical care"); Caldwell v. Blum173 (Medicaid
applicants established harm where they would "absent relief, be exposed to the hardship of being denied essential medical benefits"); Edmonds v. Levine174 (denial of medical benefits, and resulting loss of medical services, constitutes irreparable harm); Mitson v. Coler175 (potential
denial of nursing home service constituted irreparable injury since many in class would be
deprived of essential medical care).
In recent cases dealing with cuts to home- and community-based services similar to those
165 636 F.2d 997, 1001 (5th Cir. 1981) (quoting Parks v. Dunlop, 517 F.2d 785, 787 (5th Cir. 1975)). 166 Mitchell v. Johnston, 701 F.2d 337 (5th Cir. 1983). 167 807 F. Supp. 475, 479 (C.D. Ill. 1992). 168 572 F.3d 644, 658 (9th Cir. 2009). 169 647 F. Supp. 1312, 1315 (D.Me. 1986). 170 336 F.3d 650, 656 (8th Cir. 2003). 171 700 F.2d 749, 753 (1st Cir. 1983). 172 677 F.2d 1317, 1322 (9th Cir. 1982). 173 621 F.2d 491, 498 (2d Cir. 1980), cert. denied, 452 U.S. 909 (1981). 174 417 F. Supp. 2d 1323, 1342 (S.D. Fla. 2006).
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provided to class members in this case, courts have found that reductions in Medicaid services that threaten people with disabilities with institutionalization or deterioration in health constitute irreparable harm justifying preliminary injunctive relief. Brantley v. Maxwell-Jolly, supra (preliminary injunction entered to prevent reduction of Medicaid Adult Day Health Care services from five to three days a week); V.L. v. Wagner, supra (injunction entered to halt change in eligibility criteria that would reduce or terminate home- and community-based services to people with disabilities); Ball v. Rodgers176 (State’s failure to provide personal care services needed by persons with disabilities to participate in everyday life activities, such as bathing, dressing, cleaning, and shopping, threatened Plaintiffs with institutionalization and justified injunctive relief).
If a preliminary injunction is not issued, class members will not be able to continue to live at home. Their health will deteriorate, and they will have no option other than to eventually enter to a nursing home and suffer all the injuries listed in Olmstead. Such discrimination and irreparable injury are unnecessary. The irreparable injury includes more than a violation of civil rights under the ADA and Section 504. The irreparable injury is that class members will be institutionalized in a setting that demeans them by taking away their independence and dignity. X. Balance of Hardships
The Court must weigh the harm to class members against possible damage to Defendants. While class members are threatened with institutionalization, or with deteriorating health and lack of autonomy, Defendant will suffer no harm from providing the preliminary relief Plaintiffs are requesting.
175 670 F. Supp. 1568, 1577 (S.D. Fla. 1987). 176 No. 00-67-TUC-EHC, 2009 WL 1395423 (D. Ariz. Apr. 24, 2009)
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By promulgating the July 2011 Emergency Rule, Defendants have already decided that alternative services in the form of emergency waiver slots can be extended to class members to allow them to avoid institutionalization. Plaintiffs are simply seeking to insure that all class members have a fair opportunity to demonstrate their need for these services, and to obtain them if necessary. It is not fair that only those class members whose services have been reduced to exactly 32 hours, or those who gotten special assistance from the Advocacy Center, should be able to request these services. Allowing all class members who are facing deterioration and institutionalization to apply for alternative services at a meaningful time and in a meaningful manner, and presenting them with an opportunity to demonstrate that they need emergency services, will harm no one.
On the other hand, hundreds of class members have already suffered service reductions. Many, like E.M.S., C.D., and E.B., may be hanging on to their lives in their homes and communities by the most slender of threads. They deserve the opportunity to qualify for emergency waiver services, if such services are going to be made available to others.
Finally, class members will continue to be at risk of institutionalization unless their services are extended at current levels, or restored to previous levels, until emergency waiver services actually become available. This will entail an expense to Defendants, though until the number of class members is determined, the size of that expense is unknown. However, it appears that Defendants have already made exceptions to the 32-hour maximum – not only by extending the services of the nine class members who are named plaintiffs or who have been brought to their attention by Plaintiffs’ counsel, but for a substantial number of others. As noted
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above,177 Defendants’ response to Interrogatory No. 2 of Plaintiffs’ First Set of Interrogatories indicates that almost 25% of the persons who were receiving more than 32 weekly hours of LTPCS on September 5, 2010, who had new plans of care implemented after December 1, 2010, were allocated more than 32 hours of LT-PCS, despite the supposed 32-hour maximum.178 Allowing class members who identify themselves as requiring services to avoid nursing home placement to retain, or be restored, services above the 32-hour maximum on a temporary basis, will not significantly raise costs to the State. And, as this Court has pointed out, if these individuals do enter nursing facilities as the result of the reductions, the State will incur even larger expenses for their care in nursing homes.
The harm to class members here clearly outweighs any harm to Defendants. See, e.g., Brantley v. Maxwell-Jolly, supra; Edmonds v. Levine179 (harm to plaintiffs of being deprived of essential medical services outweighs any harm to state); Ill. Hosp. Ass'n v. Ill. Dep’t of Pub. Aid180 ("once a state has voluntarily elected to participate in the Medicaid program . . . [it cannot] characterize its duty to comply with the requirements of [the program] as constituting a hardship to its citizens"); Kan. Hosp. Ass'n v. Whiteman181 (threatened injuries to plaintiffs outweighed any harm to defendant that would result from issuing the temporary restraining order because changing Medicaid coverage "significantly alters the status quo to the detriment of the individual plaintiffs, while its positive budgetary impact on state coffers is negligible in a relative sense").
The balance of hardships clearly favors class members in this case. Providing the requested accommodations falls squarely within the duties imposed upon Defendants by the
177 See note 11, supra. 178 Exhibit 1, Abadie Decl. ¶9. 179 417 F. Supp. 2d 1323, 1342 (S.D. Fla. 2006) 180 576 F. Supp. 360, 371 (N.D. Ill. 1983)
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Medicaid program and the Medicaid personal care option. Denying the accommodations will risk class members’ institutionalization, despite the fact that they have successfully resided in the community. Their medical practitioners have sworn that this will result in less effective health and medical care, and will generally jeopardize their health.182 In addition, institutionalization threatens the independence, community involvement, relationships, and personal autonomy that class members enjoy. XI. The Public Interest
A preliminary injunction to provide services to class members to avoid institutionalization is not adverse to the public interest. In determining whether the public interest will be disserved by the granting of a request for preliminary injunction, courts may look to the legislative intent in enacting the statute sought to be enforced. Cost to the government “alone” is not a reason to deny a preliminary injunction as being against the public interest. See, e.g., Johnson v. U.S. Dept. of Agriculture.183 In that case, in which borrowers challenged government foreclosure procedures, the court looked at the legislative purposes of the Housing Act of 1949 and found that the public interest of providing decent housing would be served by preventing premature foreclosures. See also Camacho v. Texas Workforce Com'n184 (Public interest will be served by enjoining state rules and allowing Plaintiffs to continue receiving Medicaid assistancebenefits; State budgetary savings does not justify denial of injunction); Newton-Nations v. Rogers185 (Public interest favored a preliminary injunction sought by state Medicaid beneficiaries against the enforcement of a rule that required Medicaid beneficiaries to pay
181 835 F. Supp. 1548, 1552-53 (D. Kan. 1993) 182 See Exhibits 4, 8, 10, 12, and 14. 183 734 F.2d 774 (11th Cir. 1984). 184 326 F.Supp.2d 794 (W.D.Tex. 2004).
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copayments purportedly in excess of amounts authorized under federal law). The public interest also will be served by an order granting a preliminary injunction for
the class. There is a strong public policy expressed in the ADA and Section 504. Congress found that discrimination against people with disabilities is a serious and pervasive social problem, and that people with disabilities have been subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such persons to participate in and contribute to society.186
As the en banc Fifth Circuit recently observed in Frame v. City of Arlington,187 the purpose of the ADA’s passage was to provide a clear and comprehensive national mandate “to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.” The Frame court noted that “Title II does not only benefit individuals with disabilities. Congress recognized that isolating disabled individuals from the social and economic mainstream imposes tremendous costs on society,” including “billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”188 Accordingly, it serves the public interest to issue the requested preliminary injunctive relief. XII. Waiving the Bond Requirement
Plaintiffs should be exempted from the bond requirement of Fed. R. Civ. P. 65(c). The amount of required security is with in the discretion of the trial court, and the court may elect to
185 316 F. Supp. 3d 883 (D. Az. 2004). 186 42 U.S.C. §12101. 187 __ F. 3d __, 2011 WL 4089778 at *3, *8 (5th Cir., Sept. 15, 2011, en banc). 188 Id. *8.
40
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require no security at all.189 Persons suing individually, or as a class, to obtain access to public benefits, ordinarily are
not required to post bond for an injunction under Rule 65(c). See, e.g., Doe v. Perales190 (bond not required of nursing home residents prior to injunction precluding changes in Medicaid program that have the effect of reducing the amount of exempt resources available to certain recipients); Montoya v. Johnston191 (injunction against $50,000 cap on payments under Medicaid program for inpatient hospital expenses issued without bond); Bartels v. Biernat192; Bass v. Richardson193 ("It is clear. . .that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c)”), discussed at 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §2954 (2d ed. 1987).
The class seeks injunctive relief to receive services in the community that Defendants already provide in nursing homes. The case implicates the public interest, and the balance of hardships tips sharply in favor of the Plaintiffs. This Court should not require Plaintiffs to give security. XIII. Conclusion
For the reasons and on the authority cited above, Plaintiffs respectfully requests that this Honorable Court grant preliminary injunctive relief to the class. They have demonstrated a substantial likelihood of success on the merits; that they will suffer irreparable injury in the event emergency relief is denied; and that the balance of hardships tip in their favor. Dated September 27, 2011.
189 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996). 190 782 F. Supp. 201 (W.D.N.Y. 1991). 191 654 F. Supp. 511, 514-515 (W.D. Tex. 1987). 192 405 F. Supp. 1012, 1019 (D. Wis. 1975).
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Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 11 Facsimile (337) 237-0486 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada1@gmail.com
Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424
Counsel for the Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on September 27, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
193 338 F. Supp. 478, 490 (E.D.N.Y. 1971).
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Exhibit 1 Third Declaration of Jeanne Abadie
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THIRD DECLARATION OF JEANNE ABADIE Jeanne Abadie subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. I have been employed as the Compliance Specialist in the New Orleans, Louisiana
office of the Advocacy Center since May of 2002. 2. I have reviewed the Excel Spreadsheet entitled “Master Spreadsheet—Interrogatory
No. 2” that was provided to the Advocacy Center on July 11, 2011 in response to Interrogatory No. 2 of Plaintiffs’ First Set of Interrogatories. 3. This spreadsheet included information on individuals who were approved to receive more than 32 hours a week of LT-PCS prior to the application of the September 5, 2010 reduction. 4. The spreadsheet shows that 1,567 persons who had had more than 32 hours a week of LT-PCS on September 5, 2010, had been reduced to 32 or fewer hours a week as of June 15, 2011. I obtained this number by totaling the number of people who had a number greater than 32 in column X (“Weekly Units on Sept 5, 2010”) and a number less than or equal to 32 in column Y (“Weekly Units on June 15, 2011”). 5. The spreadsheet shows that 1,991 people were receiving more than 32 hours a week of services on June 15, 2011. I obtained this number by totaling the number of people who had a number greater than 32 in column Y. 6. The spreadsheet shows that of the 1,567 persons who were receiving more than 32 hours a week on September 5, 2010, and whose authorized services had been reduced, only 312 were approved to receive exactly 32 hours a week of LT-PCS as of June 15, 2011. I obtained this number by totaling the number of people who had a number
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greater than 32 in column X and 32 in column Y. 7. The spreadsheet shows that of the 1,567 persons who were receiving more than 32
hours a week on September 5, 2010, and whose authorized services had been reduced, 1,255 were approved to receive less than 32 hours a week of LT-PCS as of June 15, 2011. I obtained this number by totaling the number of people who had a number greater than 32 in column X and a number less than 32 in column Y. 8. I counted the number of individuals for whom the date in the column Z, headed “PA begin for Plans of Care that span June 15, 2011” was after December 1, 2010. It was my understanding that these were individuals who were receiving LT-PCS as of June 11, 2011, whose plans of care were implemented after December 1, 2010. 9. The spreadsheet shows that a total of 400 individuals were receiving more than 32 hours a week of LT-PCS services as of June 15, 2011, under plans of care that were implemented after December 1, 2010. I obtained this number by totaling the number of people who had a number greater than 32 in column Y and a date after 12/1/10 in column Z. This represents 23% of the all the people whose plans of care were approved after 12/1/10 (1,739 people had a date after 12/1/10 in column Z and were receiving LT-PCS as of June 15, 2011). 10. I speak with the named plaintiffs and the class members discussed in Plaintiffs’ Motion for Preliminary Injunction periodically. Since their declarations were signed, class members I.M.L. and V.U.S. have been offered emergency EDA waiver slots. Class member E.B. has been assessed for an emergency EDA waiver slot, since his mother, L.M., signed her declaration and named plaintiff Elizabeth Foster has been contacted for an appointment for an assessment, since her daughter, Donna Zeno,
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signed her declaration. Neither of them have been told whether or not they would be offered a slot.

9/27/11 Date

/s/Jeanne Abadie Jeanne Abadie

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Exhibit 2 Declaration of Nell Hahn
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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

KENNETH ROMAN, et al. PLAINTIFFS
V. BRUCE GREENSTEIN, et al.
DEFENDANTS

* C.A. No. 3:10-cv-00635-JJB-SCR

*

*

* JUDGE JAMES J. BRADY

*

*

* MAGISTRATE JUDGE STEPHEN

*

C. RIEDLINGER

*

* CLASS ACTION

DECLARATION OF NELL HAHN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

NELL HAHN subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746,

as follows:

1. I am one of the attorneys for the Plaintiff class in the above-named and

numbered cause. I make this Declaration in support of Plaintiffs’ Motion for Preliminary

Injunction.

2. I sent the letter attached hereto as Attachment A to counsel for Defendants

on June 29, 2011.

3. Defendants’ counsel responded to my letter of June 29 via email, stating

that a meeting would be the best way of answering the questions it posed.

4. Jeanne Abadie and I met with Hugh Eley, Assistant Secretary of the

Department of Health and Hospitals (“DHH”) for Aging and Adult Services; Rick

Henley, his deputy; Charles Daspit, counsel for DHH; and Matthew Berns, counsel for

DHH (by phone) at DHH offices on July 13, 2011 and obtained DHH’s answers to the

questions in the letter.

5. At the meeting on July 13, 2011, Mr. Eley indicated that he intends to set

1
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aside additional slots if the initial 100 were taken, but there is nothing in the Emergency Rule to assure that this will take place.
6. Following that meeting, I sent the email attached hereto as Attachment B to Defendants’ counsel, to get more specific information on how the July 2011 Emergency Rule would be implemented. I again sought copies of forms, guidelines, fact sheets, instructions, and other documents that will be revised as a result of these changes and all documents that will be used to implement the changes.
7. Defendants’ response to this inquiry is attached hereto as Attachment C. 8. After I learned about the availability of emergency EDA waiver slots through the July 2011 Emergency Rule, I requested emergency EDA slots for the named plaintiffs and the class members discussed in Plaintiffs’ Motion for Preliminary Injunction through Defendants’ counsel.

9/21/11 Date

/s/ Nell Hahn Nell Hahn

2
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Attachment A
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Via email
June 29, 2011
Kimberly L. Humbles Louisiana Department of Health & Hospitals 628 N. 4th St. Baton Rouge, LA 70802
Caroline M. Brown Matthew Berns COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, D.C. 20004-2401
Re: Pitts et al. v. Greenstein et al., No. 3:10-cv-00635 in the U.S. District Court for the Middle District of Louisiana
Dear Counsel:
As I mentioned on the phone with Judge Riedlinger, we would like some information on the meaning and implementation of the recent Emergency Rule changing DHH EDA waiver waiting list priorities. We would like to start by getting this information informally. I had called Caroline to start this process, but, in an email, Matt asked that I send our questions in writing. Here are some of our questions:
1. Regarding the change in the priority given nursing home residents for an EDA slot:
(a) How will DHH identify “individuals admitted to a nursing facility who are approved for a stay of more than 90 days” on the waiting list so that they can be offered a waiver slot?
(b) Does there have to be an approval that explicitly says that it extends for more than 90 days, or will the person qualify so long as approval is not explicitly limited to less than 90 days?
(c) How will DHH publicize this change to people who are on the waiting list?
Voice 337-237-7380 • TDD 1-866-935-7348 • Fax 337-237-0486 • Toll Free 1-800-822-0210 • www.advocacyla.org
600 Jefferson Street • Suite 812 • Lafayette, Louisiana 70501 The Protection and Advocacy System for Louisiana
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Kimberly Humbles Caroline Brown Matt Berns June 29, 2011 Page 2
(d) How many people on the EDA list are currently admitted to nursing facilities, and how long have they been residing there? How many are approved for stays of more than 90 days? How many are not approved for more than 90 day stays and how long are they approved for?
(e) How will DHH identify individuals who are initially approved for a stay of less than 90 days but who later receive one or more extensions that result in a nursing home stay of more than 90 days? Will such persons receive priority for an EDA waiver slot?
(f) What are the current criteria for determining the approved length of stay in a nursing home? Who is responsible for making this determination? Since what date have the current criteria been in effect, and, if these were changed in the last few years, what were the previous criteria? What changes, if any, do you anticipate to these criteria?
2. Regarding the 100 waiver slots that “may” be available to persons who require emergency waiver services:
(a) How did the Department decide on the number 100? What analysis was done to arrive at this number?
(b) If a person who has been given one of these emergency waiver opportunities leaves the waiver, will their slot be held open as an emergency waiver slot for someone else who meets the criteria in this rule? For how long will these slots be made available in this way, and how will it be decided how long they will be made available?
(c) Will there be a corresponding increase in the total number of EDA waiver slots, or will the use of these 100 slots for LT-PCS recipients result in a longer wait for others who are on the EDA waiting list?
(d) What does “may” mean in the following context: "Notwithstanding the priority group provisions, up to 100 EDA Waiver opportunities may be granted to qualified individuals..."? Does it mean that it is not definite that an EDA waiver opportunity will be available to a person who requires emergency services? If it is definite, why is the word “may” used, instead of the word “shall”?
(e) How will DHH identify individuals who require emergency waiver services under this provision?
(f) How will DHH publicize this change to people on the waiting list?
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Kimberly Humbles Caroline Brown Matt Berns June 29, 2011 Page 3
(g) How will DHH publicize information about the availability of these slots to people who are receiving, or have received, cuts in their LT-PCS?
(h) What does this mean: “To be considered for an emergency waiver opportunity, the individual must currently receive the maximum amount of services allowable under the Long Term Personal Care Services Program”?
• Does the person have to be receiving 32 or more hours of services? • What if they have been evaluated since September 2010 and are receiving less
than 32 hours of services? • Do they have to have appealed for the maximum amount of services and won
the appeal in order to get one of the waiver slots? • What if they are not currently receiving any services (e.g., they are a new
applicant for LT-PCS)?
(i) How will DHH determine if the person will require institutional placement unless offered an emergency waiver slot?
(j) What will happen if more than 100 people who need more than 32 hours of LTPCS are identified?
(k) Are any other criteria, besides those listed in §8105(E)(2) to be considered in determining whether or not to grant an emergency waiver slot, or is (E)(2) an exclusive list?
(l) Who will make the decision as to whether or not a person will be granted an emergency waiver slot? What will the application process consist of?
(m) Please provide a sample notice that will be given to a person who is denied an emergency waiver slot, advising him or his or her right to appeal the denial.
3. Has DHH sought CMS approval for these changes? If so, please provide copies of all documents related to that submittal (including, but not limited to, the requested amendment and any correspondence to or from CMS). If DHH has not sought CMS approval, why has it not done so?
4. Please provide us with copies of forms, guidelines, fact sheets, instructions, and other documents that will be revised as a result of these changes and all documents that will be used to implement the changes.
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 56 of 166

Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 57 of 166

Attachment B
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 58 of 166

Advocacy Center Mail - Requested stipulations in Roman v. Gr...

https://mail.google.com/mail/?ui=2&ik=d17eaf31c7&view=pt...

Nell Hahn <nhahn@advocacyla.org>

Requested stipulations in Roman v. Greenstein

Nell Hahn <nhahn@advocacyla.org>

Wed, Aug 10, 2011 at 5:41 PM

To: "Berns, Matthew" <mberns@cov.com>, Caroline Brown <cbrown@cov.com>, Kimberly.Humbles@la.gov

Cc: Bruce Vignery <BVignery@aarp.org>, Jeanne Abadie <jabadie@advocacyla.org>, Kenneth Zeller

<KZeller@aarp.org>, "SteveGoldADA@cs.com" <SteveGoldADA@cs.com>, Susan Meyers

<smeyers@advocacyla.org>

Counsel:

We are requesting stipulations as to the following, which we believe accurately reflects the information given us at our meeting to discuss my letter of June 29:

1. DHH does not intend to notify class members whose LT-PCS services have already been reduced pursuant to the September 5, 2010 rule, of the availability of emergency EDA waiver slots and the procedure for applying for such a slot.
2. DHH does not intend to extend the current service hours of people whose services are currently above 32 hours a week, who are applying for an emergency EDA waiver slot, until their waiver services begin.
3. DHH will not consider anyone for an emergency EDA waiver slot if the number of hours that they are currently approved for is less than 32.
4. DHH does not intend to notify people who are approved for less than 32 hours a week of LT-PCS of the availability of emergency EDA slots if they are successful at appealing to get 32 hours, by showing that they need more than 32 hours to avoid institutionalization.
We would like to reiterate our request for copies of forms, guidelines, fact sheets, instructions, and other documents that will be revised as a result of these changes and all documents that will be used to implement the changes.
Please let me know if DHH will stipulate to the above matters. If you would like to discuss this, or have questions about the stipulations, please feel free to contact me. -Nell Hahn Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380 ext. 311 (337) 237-0486 (fax)

CONFIDENTIALITY NOTICE: Unless otherwise indicated or obvious from the nature of this transmittal, the information contained in this e-mail message is attorney-client privileged and confidential, intended only for use by the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication

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Advocacy Center Mail - Requested stipulations in Roman v. Gr...

https://mail.google.com/mail/?ui=2&ik=d17eaf31c7&view=pt...

in error, immediately delete the message and notify Nell Hahn, nhahn@advocacyla.org.

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Attachment C
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 61 of 166

Advocacy Center Mail - Requested stipulations in Roman v. Gr...

https://mail.google.com/mail/?ui=2&ik=d17eaf31c7&view=pt...

Nell Hahn <nhahn@advocacyla.org>

Requested stipulations in Roman v. Greenstein

Berns, Matthew <mberns@cov.com>

Fri, Aug 26, 2011 at 9:51 AM

To: "nhahn@advocacyla.org" <nhahn@advocacyla.org>

Cc: "Brown, Caroline" <cbrown@cov.com>, Kimberly Humbles <Kimberly.Humbles@la.gov>

Nell,

Please find attached copies of the documents you requested.

Regarding your request for stipulations by the defendants, we cannot agree to any of your proposed stipulations as drafted. The defendants are prepared to agree to the following alternative stipulations, which more accurately characterize DHH's current thinking regarding the emergency slots.

1. Beginning on August 3, DHH began enclosing information about the availability of emergency EDA slots with the letters sent to people approved for 32 hours per week of LT-PCS following an assessment or reassessment. (Individuals in Region 2 began receiving the materials at an earlier date.) DHH will retroactively notify individuals whose 32-hour plan began on or after July 1, the effective date of the rule creating the emergency slots. DHH is currently evaluating when and how to inform other individuals who may be eligible for consideration for emergency slots.

2. DHH is determining on a case-by-case basis whether to maintain the current level of LT-PCS hours for individuals who are requesting more than 32 hours per week of LT-PCS. To date, DHH has continued to maintain the current level of services for all individuals identified by Plaintiffs as at risk of institutionalization if their hours are reduced.

3. As stated in the rules governing emergency slots, DHH will consider an individual for an emergency EDA waiver slot if he or she is currently approved for 32 hours per week of LT-PCS. Individuals approved for fewer than 32 hours must exercise their option to appeal for more LT-PCS hours before DHH will consider them for emergency EDA slots.

4. DHH will provide individualized notice of the availability of emergency EDA slots to individuals approved for 32 hours per week of LT-PCS. Individuals approved for fewer than 32 hours will continue to be notified of their right to appeal for up to 32 hours by demonstrating that there was an error in the assessment or that they need additional services to avoid entering a nursing home.

Best, Matt Berns

From: Nell Hahn [mailto:nhahn@advocacyla.org] Sent: Wednesday, August 10, 2011 6:42 PM To: Berns, Matthew; Brown, Caroline; Kimberly.Humbles@la.gov Cc: Bruce Vignery; Jeanne Abadie; Kenneth Zeller; SteveGoldADA@cs.com; Susan Meyers Subject: Requested stipulations in Roman v. Greenstein

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Advocacy Center Mail - Requested stipulations in Roman v. Gr...

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[Quoted text hidden]
4 attachments 8-23-11 Revised SRP Referral Form-Fillable-Saveable-Final.pdf 145K OAAS -ADM-11-018 Emergency EDA Waiver Slot Process and Protocol I 8-04-11(HENLEY).doc 70K OAAS-ADM-11-008 CORRECTEDReferrals to Service Review Panel Procedures Revised 8-23-11Final.doc 73K OAAS-11-003_LTPCS_32_Hour_Notice-I-8-01-11_(HENLEY)[1].doc 37K

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EMERGENCY ELDERLY AND DISABLED ADULT WAIVER SLOT PROCESS AND PROTOCOL
OVERVIEW
A limited number of Elderly and Disabled Adult (EDA) Waiver slots may be granted to qualified individuals who require emergency waiver services. To be considered for an emergency waiver slot, the individual must currently receive the maximum amount of services allowable under the Long Term Personal Care Services (LT-PCS) Program and require institutional placement, unless offered an emergency waiver slot. The following details the procedures that the Office of Aging and Adult Services (OAAS) and OAAScontracted staff shall follow when these requests are received.
REQUESTS FOR EMERGENCY WAIVER SLOTS
Requests for emergency EDA Waiver slots may be made to OAAS Help Line at 1-866-758-5035. However, it is likely that other OAAS staff or OAAS-contracted staff will be contacted with requests for EDA Emergency Waiver slots. In response, OAAS or OAAS-contracted staff shall state the following when these requests are received:
“There are emergency EDA Waiver slots available for persons who get LT-PCS if certain requirements are met. Let me get some information from you and someone will be in touch with you on what to do next.”
OAAS or OAAS-contracted staff shall obtain the following information: Name of person requesting an EDA Waiver Emergency Slot, and, if applicable, the name of their responsible representative; Address; Telephone Number; and Date of Birth. Date and time the person contacted OAAS or the OAAS contractor.
Once this information is obtained, it should be forwarded to the OAAS Help Line staff.
REQUEST PROCESSING
Once information regarding the emergency EDA Waiver slot request is received, OAAS Help Line staff will log in the request and determine if: the person requesting an emergency EDA Waiver Slot is currently receiving LT-PCS; whether or not the person is approved to receive the LT-PCS weekly program maximum
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 64 of 166

amount of 32 hours per week; whether or not the person has been reassessed under the ADL Index Service Hour Allocation of Resources methodology; and whether or not the person receives services through any other DHH program (for example, ADHC, PACE, or Supports Waiver).
If the person is not currently receiving LT-PCS, OAAS Help Line staff will call the person and tell them how to apply for services.
If the person is currently receiving LT-PCS, but has not been approved to receive 32 hours a week under the ADL Index Service Hour Allocation of Resources methodology and/or exhausted all administrative appellate relief, OAAS Help Line staff shall call the person. OAAS Help Line Staff shall explain that in order to request an emergency EDA Waiver slot, the person must have been reassessed on or after September 5, 2010 and have been approved to receive the LT-PCS maximum amount of 32 hours per week. OAAS Help Line Staff shall also assist the person in the appeal process (if applicable).
If the person is currently receiving 32 or more hours per week of LT-PCS and they have not been reassessed since September 5, 2010, OAAS Help Line staff shall advise that they have to be reassessed before they can apply for an emergency slot. OAAS Help Line staff shall also assist the person in determining if there are any other programs or assistance that may be available.
If the person is currently receiving LT-PCS and has been approved to receive the LTPCS maximum of 32 hours per week, the OAAS Helpline Staff shall refer the request via email to the person’s OAAS Regional Office of residence for a home visit.
HOME VISIT
Once OAAS Regional Office staff receives the request, they shall call the person to set up a home visit within five (5) days of receiving the request. Prior to the home visit, OAAS Regional Office staff shall review the current Minimum Data Set-Home Care assessment as well as any other relevant information or documentation concerning the participant.
The purpose of the home visit is to determine if the individual can establish that additional services are necessary to prevent immediate admission to a nursing facility. During the home visit, Regional Office staff should introduce themselves and explain the purpose of their visit. While at the home, Regional Office staff should be cognizant of any information/observations that may show a need for immediate institutional placement and whether there may be additional resources that may be able to assist the person.
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 65 of 166

Issues to consider during the home visit include, but are not limited to: Is the person getting all the LT-PCS services they are approved for, i.e., are the direct service workers actually providing the full 32 hours a week of service? Are services being provided as authorized in the Plan of Care, i.e., are the direct service workers performing the tasks set forth on the Plan of Care in accordance with the persons’ wishes? Has the person applied for admission to a nursing home? Is the person getting any other formal services besides LT-PCS and if so, is additional assistance available from those services? If not, why not? Are the services the person is getting through different programs being combined in the most efficient manner? Was the person previously getting service(s) from other programs, and if so, why are they no longer getting those services? Can those services be reinstated? Is the person getting any informal help from family or friends? Was the person previously getting informal help from family or friends, and if so, why are they no longer getting informal help? Are other sources of informal help available? Does the person live alone? Have they applied for any other services? Are there alternatives to providing additional personal care services, such as changes to the person’s medications or providing technological support that could help the individual avoid a nursing home? Will the provision of additional personal care services address the issue/condition that the participant/responsible representative cite as the reason(s) driving the participant towards immediate nursing facility placement (e.g., “need 24-hour care”, require nursing services not provided by LT-PCS or EDA waiver services)?
Regional Office staff shall also provide the person with information about, and offer assistance in applying for, services other than LT-PCS and EDA -- including but not limited to ADHC, PACE, Home Health, and Supports Waiver.
SERVICE REVIEW PANEL
The result of the home visit shall be documented immediately upon completion, and the Regional Office staff shall refer the request to the Service Review Panel via OAASIF-08-004. The form should be sent via email to the Regional Office Supervisor and DHH Legal. The form should be marked “Urgent Review”. Regional Office staff shall clearly document their findings on the Service Review Panel form, but not make a recommendation.
Once the documentation is received and the Service Review Panel convenes, a final decision shall be made on the person’s request for an emergency EDA Waiver slot. The Service Review Panel shall consider the following criteria in determining whether or not
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 66 of 166

to grant an emergency waiver opportunity: (1) Based on the experience and expertise of the Service Review Panel, the applicant
will require admission to a nursing facility unless offered an emergency waiver opportunity; and (2) a. support through other programs is either unavailable or inadequate; b. the death or incapacitation of an informal caregiver leaves the person
without other supports; c. the support from an informal caregiver is not available due to a family crisis; or d. the person lives alone and has no access to informal support.
DECISION
If the Service Review Panel determines that an emergency EDA Waiver slot is appropriate, the person shall be notified via telephone of the decision as well as what they can expect regarding their application for EDA Waiver services. OAAS staff shall also contact the data management contractor and instruct that an emergency EDA Waiver slot offer be made.
If the Service Review Panel determines that an emergency EDA Waiver slot is not appropriate, the person shall be sent a letter advising of the Service Review Panel’s decision.
For purposes of determining whether or not an emergency EDA Waiver slot should be granted, the Service Review Panel may also include stakeholders.

Office of Aging and Adult Services Disabled Adult
Protocol

Emergency Elderly and Waiver Slot Process and

Issued August 4, 2011

OAAS-ADM-11-018

Page PAGE 1 of 4

Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 67 of 166

Date:
Dear __________________________:
You have been approved to receive 32 hours per week of Long-Term Personal Care Services (LT-PCS). Because this is the most assistance that anyone can receive through the LT-PCS program, the Department of Health & Hospitals wants to make sure that you know about programs other than LT-PCS and about ways to make the most of your LT-PCS services.
Among the options that may be available to you are: Using services provided at an Adult Day Health Care center together with your LT-PCS services Considering a shared living arrangement with another person who uses LT-PCS Seeking additional assistance from family, friends, neighbors, or community organizations or programs Applying for emergency services through the Elderly and Disabled Adults Waiver
If you are considering going into a nursing home unless you receive additional assistance beyond your 32 hours per week of LT-PCS, the Department of Health & Hospitals may be able to help. You may request assistance by contacting the Office of Aging and Adult Services Help Line at 1-866-758-5035. The Department will work with you to try to find a way for you to receive additional services and supports.
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 68 of 166

DEPARTMENT OF HEALTH & HOSPITALS Long Term-Personal Care Services Program

August 1, 2011

OAAS-11-003

Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 69 of 166

Referrals to Service Review Panel (SRP)
OVERVIEW
OAAS Regional Offices (R.O.) must submit the following types of waiver cases to OAAS State Office Service Review Panel (SRP) for recommendations, or as a response containing Emergency EDA Waiver Slot Referral findings for LT-PCS, State Plan participants:
Involuntary Denials/Discharges:
Health and welfare of the individual cannot be assured through the provision of waiver services within the individual’s cost effectiveness.
Individual fails to cooperate in the eligibility determination process or in the performance of the Plan of Care (POC).
Failure on behalf of the individual to maintain a safe and legal home environment.
Individual is incarcerated or placed under the jurisdiction of penal authorities or courts.
Waiver services are not appropriate for the individual.
Individual fails to attend the ADHC facility for a minimum of 36 days per calendar quarter.
Transitions from ADHC Waiver to EDA Waiver due to a physical decline.
ADHC Waiver Attendance – Extenuating circumstances does not exist.
Emergency EDA Waiver Slot Referral Findings
Follow-up from a previous Service Review Panel (SRP).
PROCEDURE
OAAS Regional Office (R.O.) shall complete the HYPERLINK "S:\\OAAS Policy Section\\OAAS NUMBERED DOCUMENTS (ALL) UPDATED 8-28-09 POLICY\ \OAAS Numbered Internal Forms (IF)\\8-23-11 Revised SRP Referral FormFillable-Saveable-Final.pdf" Service Review Panel (SRP) Referral form, OAASIF-08-004, Reissued August 23, 2011. The R.O. manager must review the form and
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 70 of 166

send it along with any necessary documents to OAAS State Office SRP for recommendations/findings.

*Emergency EDA Waiver Slot Referral Findings shall be marked “Urgent Review” and shall be emailed to OAAS State Office Supervisor and to DHH Legal.

NOTE:

Please send in only the information that is needed to assist in

making

a determination on the referral. There is no

need to send entire case

record file to SRP.

Service Review Panel (SRP) meetings will be held weekly at OAAS State Office (usually every Wednesday). All “Routine Review” referrals submitted by Tuesday before noon will be reviewed at the next scheduled meeting. “Urgent Review” request shall be addressed by SRP as soon as possible from date of receipt.

Instructions for Completing the Service Review Panel (SRP) Referral Form

Indicate Review Priority:

Mark the appropriate box: Routine Review or *Urgent Review

Indicate the Following Required Information:

Participant’s Name;

DOB;

Age;

Date of Submitted to SRP;

OAAS Region #;

Name of Support Coordination Agency;

Name of Provider(s);

Current MDS-HC Assessment; and Date Completed; RUG Score; and

Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 71 of 166

ADL Index

Last MDS-HC Assessment Date Completed; RUG Score; and ADL Index

Mark the Following Information (if applicable):

Type of Waiver;

Currently Receiving LT-PCS; If yes, indicate the amount of hours per week.

Type of Waiver Status;

Nursing Facility (NF) Transition; and

My Place LA Participant

Type of Review Requested:

Mark the appropriate box (es).

NOTE:

If this referral is a follow-up from a previous SRP,

please mark

“Follow-up…” and be sure to include

the date of the SRP

meeting when the referral

was last reviewed. Do NOT send the

entire packet from

the previous SRP submission.

Diagnoses:

Indicate the current diagnosis/diagnoses.

Regional Recommendation:

Mark the appropriate box(es).

NOTE:

For Emergency EDA Waiver Slot Referrals, R.O. should NOT mark any Regional Recommendation box(es).

Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 72 of 166

Background/Reason for Referral/or, Emergency EDA Waiver Slot Referral Findings:
At a minimum, the following should be included: (1) services in place, and (2) medical issues or any other relevant information that may be helpful in making a determination on this referral. Please include specific information in this section.
For Emergency EDA Waiver Slot Referral Findings, R.O. staff shall follow protocols outlined in Section III. Home Visit, of HYPERLINK "S:\\OAAS Policy Section\ \OAAS NUMBERED DOCUMENTS (ALL) UPDATED 8-28-09 POLICY\ \OAAS Numbered Administrative Memos (ADM)\\OAAS -ADM-11-018 Emergency EDA Waiver Slot Process and Protocol I 8-04-11(HENLEY).doc" OAAS-ADM-11-018, “Emergency Elderly and Disabled Adult Waiver Slot Process and Protocol” issued August 4, 2011.
Requested By:
The person requesting the review should type his/her name and indicate the date.
Regional Manager:
Form must be reviewed by the R.O. manager. After the R.O. manager reviews the referral, he/she needs to type his/her name and indicate the date and submit it to State Office SRP members.
SRP shall:
Meet and discuss the referral.
Call the R.O. (staff that requested this referral and/or regional manager), if warranted.
Include the recommendations/findings (as applicable) on the referral form along with the resolution date and listing of those present for the meeting.
Send the form back to the R.O. manager, so he/she can proceed with the case based on the SRP recommendations.
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 73 of 166

the participant

NOTE:

program, SRP will contractor to send the EDA offer.

If the SRP recommendation was to transition
from the ADHC Waiver to the EDA Waiver instruct the data management Waiver

*For Emergency EDA Waiver Slot Referrals, SRP shall follow protocols outlined in Section IV. Service Review Panel, HYPERLINK "S:\\OAAS Policy Section\\OAAS NUMBERED DOCUMENTS (ALL) UPDATED 8-28-09 POLICY\\OAAS Numbered Administrative Memos (ADM)\\OAAS -ADM-11-018 Emergency EDA Waiver Slot Process and Protocol I 8-04-11(HENLEY).doc" of OAAS-ADM-11-018, “Emergency Elderly and Disabled Adult Waiver Slot Process and Protocol,” issued August 4, 2011, including sending their findings/decision to the following:

DHH Legal; RO Manager; OAAS Helpline Staff

*NOTE: If the SRP recommendation was to transition the

participant

from LT-PCS to the EDA Waiver

program, SRP will instruct

the data management

contractor to send the Emergency EDA

Waiver Slot

offer.

Log the required referral information into the SRP spreadsheet for S.O. tracking.

Office of Aging and Adult Services Program Operations – Referrals to SRP
Adult Day Health Care (ADHC) & Procedures
Elderly and Disabled Adult (EDA) Waivers
Reissued August 23, 2011
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 74 of 166

Issued March 9, 2011

OAAS-ADM-11-008 Page PAGE 1 of NUMPAGES 5

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Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 75 of 166

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Exhibit 3 Declaration of P.M.
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 78 of 166

DECLARATION OF P.M. P.M. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is P.M.. I am 54 years old. I was born in Ascension parish and have lived in the Baton Rouge area most of my life. 2. I went to kindergarten through high school at the Louisiana School for the Blind and graduated in 1976. I went to Louisiana State University and earned a Bachelors of Arts degree in Social Studies with a secondary degree in education. After college, I worked as a paraprofessional for the Ascension Parish Public School System from 1980-1992. 3. I am married to D.M. We were married in 1992. We have no children. After our marriage, we moved often in Louisiana for my husband’s employment until we, finally, settled in Baton Rouge in 2009. 4. My husband is blind and has avascular necrosis, arthritis and diabetes. The avascular necrosis has affected my husbands hips in such a drastic way that he must now use a wheelchair. My husband needs assistance with bed mobility, toileting, transferring and bathing. He cannot do laundry, perform household chores or prepare meals. He cannot assist me with my personal care needs because he does not have the strength, and I cannot assist him because of my own disabilities. My husband also receives Long-term Personal Care Services. All of my husband’s family members live out of state and cannot assist either of us with our care. 5. I attempted to find work after I was married but couldn’t. I believe that one of the reasons that I could not find a job was because the school system did not want to hire a teacher or even a paraprofessional who is blind.
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6. My mother and father are deceased. I have two siblings, a sister who is twenty years older than me and a brother who is seventeen years older than me. My sister lives in Ascension parish. We speak daily, but she does not understand my disabilities and believes I am contagious. My brother and I have not spoken in years. 7. I have congenital blindness. I also have several physical disabilities that make it impossible for me to care for myself. I have severe psoriasis and psoriatic arthritis, for which I received IV therapy at home for about one month. The IV therapy required that a nurse come to my home daily to administer the medication and check the IV apparatus. The IV therapy ended on June 2, 2011. In addition, I have osteoarthritis, irritable bowel syndrome, asthma, diabetes, and was recently diagnosed with congestive heart failure. In 1999, I had two knee replacements, which seem to be wearing down. Although I am unsure what causes it, I have recently started having back spasms, which cause severe pain, daily. 8. Both forms of arthritis that I have cause me to have pain on a constant basis in my hands, knees, shoulders, back and ankles and make it impossible for me to perform many of my activities of daily living independently. Due to the significant pain, I cannot stand in one place for more than five minutes, or I will incur excruciating pain in my legs and back. This prevents me from cooking and cleaning. Due to the arthritis in my hands I cannot grip things such as a hairbrush, washcloth or even toilet paper. I need help with all of these tasks. I can usually get myself into bed, but often I need help getting my legs into the bed. Once in bed, I need someone to move my legs for me. I need assistance to get in and out of a chair. 9. I lose my balance one to two times each week when walking in my home. The personal care worker will have to rush over and steady me. Luckily this hasn’t happened when the personal care worker wasn’t there.
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10. In addition, my asthma and congestive heart failure cause me to become breathless whenever I exert myself, so I must do everything slowly, and sometimes I must stop and wait before continuing, so I can catch my breath. I cannot move quickly. If I try to rush to get out of the house for an appointment, I only cause myself further delay because I have to sit down until my breathing returns to normal. 11. I am eligible for and receive Medicaid. I also receive $388 each month from Supplemental Security Income and $255 each month from Social Security Disability Insurance. 12. I receive 38 hours of long-term personal care services. I began receiving these services in 2009. My personal care worker provides me assistance with bed mobility, transferring, toileting, bathing, dressing, personal hygiene and ambulating outdoors. I must use a wheelchair whenever I am outside of the house, and I cannot push the wheelchair for myself. I do not have the strength and if I did, I could not push the wheelchair and use a white-tip cane. 13. Since being diagnosed with Congestive Heart Failure, my doctor has prescribed Lasix. I, now, have a bedside commode, but still have incontinent episodes one to two times daily. Sometimes I have accidents because I move too slowly to reach the toilet. However, I also have a damaged bladder, which has lessened the sensation of when I have to urinate, so, at times, I do not even realize that I have to use the toilet until it is too late. 14. After the incontinent episodes, I need help cleaning myself and getting dressed, again. My incontinence also creates an extraordinary amount of laundry, so my direct service worker must do laundry daily.
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15. I need help reaching all of my body when I bathe and my worker must bathe me. To bathe, I have a seat in my shower. My personal care worker must help me to get on and off the shower seat. 16. I can eat independently, but I need my food set out for me, and I need information about what is on my plate and where the food is located. I also need my meat cut for me, because I cannot grip a knife. 17. Due to my arthritis, I am in constant pain and I believe it takes me longer to finish tasks because of the pain. For example, because of my psoriasis and psoriatic arthritis, I cannot do dishes. I have difficulty gripping the dishes, but also if I do the dishes it makes the sores from psoriasis bleed and become painful. 18. Although I am not sure what to attribute it to, I also have lost my stamina. I do not have the energy needed to do many of things that I could once do for myself. 19. I also need assistance cooking. I cannot stand to cook, but also have difficulty cooking due to my visual impairment. I can help with recipes, but cannot actually prepare the meal. 20. I can make a grocery list for my personal care worker. But, if I actually do the shopping it takes many hours. Someone has to read each label to me, so that I can cost compare and know exactly what I am buying. Due to my physical disabilities, it is difficult for me to maneuver in the grocery store. 21. Once my personal care worker returns to my home with groceries, everything has to be labeled in Braille, so that I know what we have. This also takes time, but I cannot do it myself. If items aren’t labeled and I need to get something out of the cupboard when the personal care worker isn’t there, I would not know what it was I was grabbing. I could think
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I am getting a can of milk for my coffee, it could turn out to be green beans. It is very important to me that I know what is in my own cupboard. 22. My husband and I enjoy taking advantage of our community when we can. We enjoy theater, the symphony and music concerts. Our favorite activity is going out to eat. We also enjoy attending our church whenever it is possible to do so. 23. This Medicaid program provides assistance with activities of daily living. In order to be eligible for Long-term Personal Care Services (LT-PCS), I have been determined to meet the level of care requirements for nursing home. I understand that the LT-PCS is supposed to give the choice of living in my own home instead of in a nursing home. At a minimum, I believe that I need 38 hours per week to live a healthy and safe life in my own home. 24. My husband and I live in a subsidized apartment, i.e. permanent supportive housing. I want to stay in this home and continue living with my husband. I do not want to go into a nursing home. If I or my husband went into a nursing home, we could not keep our apartment, because it would be unaffordable without both of our incomes. I do not believe that this is a sensible option, but if my hours are reduced, I believe that I will deteriorate and not be able to keep up myself or my home.

7/22/11 Date

/s/P.M. P.M.

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Exhibit 4 Declaration of W. Patrick Gahan, M.D.
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 84 of 166

DECLARATION OF W. PATRICK GAHAN, MD W. Patrick Gaban, MD subscribes under penalty of perjury, pursuant to 28 U.S.C. §1746, as follows: 1. My name is W. Patrick Gahan and I am a licensed physician practicing in Baton Rouge, Louisiana since 1979. I received by medical degree from the University of Illinois in 1976. I completed my residency in Internal Medicine in 1979 at Jewish Hospital in St Louis, Missouri. I have been Board Certiﬁed by the American Board of Internal Medicine since 1979 and the American Board of Geriatrics since 1988. 2. I have been afﬁliated with Lake Physician Group since 1993. 3. I have been treating P.M. for two years. P.M. is blind, has psoraisis, which is accompanied by psoriatic arthritis, osteo arthritis, irritable bowel syndrome, asthma, diabetes and congestive heart failure. Her overall medical condition is not expected to improve. The fact that she suffers from a combination of these diseases puts her in a precarious situation. 4. Due to Ms. M.'s medical conditions, she needs assistance performing her personal care tasks such as transferring, bed mobility, bathing, dressing, walking, and performing personal hygiene tasks. Ms. M. experiences extreme pain from her arthritis, which compounds her inability to care for herself. 5. Ms. M. can only stand for a limited amount of time which makes it unsafe for her to prepare her own meals or perform household chores, such as housekeeping and laundry. 6. Ms. M. is incontinent and needs assistance cleaning herself after her frequent incontinent episodes, Ms. M. not only takes Lasix, which is a medication
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causing frequent urination, but she also has a damaged bladder, which sometimes causes her to not feel the sensation of having to urinate. These reasons, coupled with her inability to move quickly cause her incontinence. 7. To my knowledge Ms. M., has no family or friends who can assist with her personal care needs, so she depends exclusively on her paid assistance. 8. To my knowledge, P.M. is currently receiving 38 hours per week of personal care services at home for her activities of daily living. These hours of service are medically necessary for her and are at a minimum what she requires. In my opinion, she cannot reside in the community with less assistance for her personal and household care needs. 9. In my opinion, reducing Ms. M.'s current in-home personal care services would jeopardize her community life and her health care. 10. If Ms. M.'s hours of personal care services are reduced to 32 hours per week or less, she will be at signiﬁcant risk of going into a nursing facility. This reduction is medically inappropriate. 11. In my experience, Ms. M. would not receive the same level of medical/health care and attention in a nursing facility, which she receives presently in the community. In a nursing facility, she will not receive the same one-on-one attention to her activities of daily living, which she presently receives. 12. I am quite concerned that if Ms. M. were forced to enter a nursing facility, her physical and emotional health would deteriorate rapidly and unnecessarily.

7/6/11 Date

/s/ W. Patrick Gahan, M.D. W. Patrick Gahan, M.D.

Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 86 of 166

Exhibit 5 Declaration of E.M.S.
Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 87 of 166

DECLARATION OF E.M.S. E.M.S. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is E.M.S. I am 70 years old. I live alone in Winnsboro, Louisiana. I have lived in Franklin parish all of my life. 2. I began working in the fields when I was a child, so I only went to school through the third grade. Because I had no opportunity to get an education, I cannot read or write. I continued working in cotton and other farming fields until I was approximately 50 years old. 3. I was married once and my husband died in 1978. I raised nine children. Two of my children, both sons, are now deceased. Both died in car accidents approximately 20 years ago. I have six daughters. Five of my daughters live within twenty minutes of my home, but all of my daughters work and have families of their own. One of my daughters lives in Baton Rouge, Louisiana. My son lives approximately twenty minutes away, and he works full-time, sometimes seven days per week. 4. My youngest daughter is the one that I talk to most often and is the one who helps me with my mail and visits when she can. She has three children ages 13, 17 and 21. Her 21 year old has a developmental disability and requires a great deal of her time, since she is his primary caregiver. She tries to do what she can for me, but she cannot help me on a daily basis. 5. I have arthritis and diabetes. I am also very overweight. I weigh approximately 330 pounds. I am about five feet, eight inches tall. However, at one time in my life I was approximately six feet tall.
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6. The severity of my arthritis stems from the manual labor I performed as a child and later as an adult. I find that, often, I cannot use my fingers to grip items, such as a fork, a knife or a hairbrush. When I am able to grip, I lose my strength easily and drop things. 7. I am able to walk but I have poor balance and get dizzy easily. To get around, I use a wheelchair when I am outside my house, but my house is too small for me to be able to use the wheelchair at home so I walk around my house holding on to furniture or the walls, but I am constantly afraid of falling. When my aide is with me, she helps keep me steady while I walk. 8. I cannot get in and out of a chair without assistance. And, when I first stand, I cannot move right away because I tend to feel dizzy and disoriented. 9. I have difficulty moving around in bed. Often, I lie in one position because moving is too difficult. 10. I cannot get on and off the toilet without help, I need help undressing before using the toilet and dressing after I use the toilet. 11. I need help cleaning myself after toileting. I need help bathing and dressing. I also need help doing something as simple as brushing my hair because I cannot grip the hairbrush and I cannot lift my arm over my head. 12. When I eat my noon meal, which is my largest meal, my worker often has to feed me, because I cannot grip the fork for very long, and I begin spilling food. 13. Because of the pain and my lack of mobility, both caused by my arthritis, I am unable to prepare meals, do my laundry or attend to household chores. My worker has to do these chores.
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14. When I stand for too long, or exert myself, I become breathless. I think this is due to my weight. As a result of this shortness of breath, I often have to do all activities very slowly. For example, bathing and dressing causes me to become out of breath while my worker is assisting me. If its done very slowly, I manage a lot better. 15. I have incontinence episodes daily and need help from my long-term personal care worker to clean myself after these incidents. When I am alone and these accidents occur, I do my best to clean myself, but find that I cannot reach to completely clean myself and cannot change my clothes and dress myself after the incidents. 16. I have constant pain in my back and in my knees, which causes difficulty to walk, sit or stand for any length of time. 17. I am eligible for and receive Medicaid. I receive $521 per month in Social Security from my husband, and I get $93 per month in Supplemental Security Income. 18. I received 38 hours of long-term personal care services until sometime in April of 2011. After my most recent assessment, the Office of Aging and Adult Services recommended that I receive only 22 hours per week, and I appealed that decision. Because my appeal was not recognized timely by the Office of Aging and Adult Services, the number of my Long-term Personal Care Services was erroneously reduced to 22 hours per week of assistance for approximately two weeks. 19. When I was only receiving 22 hours each month I missed meals because my worker did not have time to prepare them and I cannot prepare them for myself. My worker was not always available to bathe me, and it is very important that I bathe
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regularly due to my bowel and bladder accidents. I stayed in bed most of the time because I was afraid if I tried to walk I would fall. 20. Because I appealed timely, I should never have had my hours reduced to 22 hours per week. When the mistake of lowering my hours to 22 per week was realized, my hours were raised to 32 hours per week. However, with assistance from the Advocacy Center, I am now receiving thirty-eight hours per week, again 21. When I was getting 32 hours of assistance each week. I continued to miss meals because I am unable to prepare an evening meal and the worker does not have the time to do this and to care for me. 22. Even with thirty-eight hours per week, I have no one to assist me to prepare for bed, so my hygiene is not as good as it should be. When I have accidents and my worker is not with me, and I try to clean myself as best I can, but I need assistance to completely clean myself. 23. My daughters try to assist me, but they cannot provide all of the care that I need. I know that if my hours are, again, reduced to thirty-two hours per week, I will have to enter a nursing home which I do not want to do. I find that I generally feel weaker when I am forced to do more for myself. 24. Because of my health issues, it is important that I see my doctor regularly. Each time I go to the doctor, I am gone for two to three hours. I need my personal care worker to not only help me prepare to go to the doctor, but she also assists me while I am at the doctor. I cannot push my own wheelchair, so my worker has to push me. 25. I am worried that without an adequate number of Long-term Personal Care Services, I will not be able to see my doctor as often as I am supposed to see him.
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26. I want to stay in my home and receive that amount of support that I need. I do not want to go into a nursing home, but if I only receive 32 hours of assistance each week, I will deteriorate and be forced into a nursing home. I believe I am cared for better in my home than I would be in a nursing home. 27. I want to stay in my house because I want to have control over my own life, and I know I will be happier and healthier if I remain in my own home.

8/29/2011 Date

/s/E.M.S. E.M.S.

5 Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 92 of 166

Exhibit 7 Declaration of C.D.
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DECLARATION OF C.D. C.D. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is C.D. I am 62 years old. I live in Abbeville, Louisiana. I have lived in Abbeville most of my life. 2. I am diagnosed with Chronic Obstructive Pulmonary Disease (COPD), rheumatoid arthritis, congestive heart failure, hypertension, diabetes, carpal tunnel syndrome, lumbar and cervical degenerative disc disease, chronic pain, macular degeneration, major depression and panic disorder. 3. I woke up one morning in 1977 and could not get out of bed due to back pain. I was able to get to the doctor two days later and was told I had ruptured discs. I was 29 years old when that happened, and since that time, I have always been in pain. 4. I have had approximately sixteen back surgeries over the past 34 years. In the latter part of 2008, I had rods put in my back, and I have been able to do less for myself since that surgery. 5. Since the surgery in 2008, I need extensive help to transfer from and to bed, and to toilet, bathe, dress, ambulate, prepare food, shop and eat. Due to pain and stiffness, I cannot perform these tasks on my own. 6. I have a manual wheelchair, but I cannot propel the chair myself, so it is useless unless someone is with me to push me. I can walk, but cannot walk more than approximately ten feet before having to rest due to pain. If I stand for longer than five minutes, I am in great pain.
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7. I have a bed that I can raise and lower electronically, so I can reposition myself in bed and avoid developing bed sores and ulcers. However, I cannot transfer myself out of the bed without a great amount of pain. 8. I also experience severe headaches, periodically. These headaches make it even more difficult for me to manage anything on my own. The headaches almost paralyze me. I cannot eat or move because if I do the pain seems to become worse. 9. When I have headaches, I do not want to eat or drink, but my doctors have told me that it is dangerous for me not to eat at regular intervals, because my diabetes can cause my blood glucose levels to drop. 10. Approximately three to four times each week, I must be fed. My arms and hands become numb, and I am unable to hold a fork or spoon. I cannot pick up a glass during these times, so my worker has to hold the glass to my mouth. 11. I cannot go to the toilet on my own. My worker has to help me to transfer on and off the toilet. She must clean me because I cannot reach behind to clean myself. She also must assist me to undress before toileting and dress after toileting. As I mentioned above, I need help dressing in the morning and undressing at night because I have pain lifting my arms and bending over. 12. I have a shower chair, which allows me to sit in the shower. However, I cannot bend to get to all parts of my body, so I need assistance from my worker to wash myself, as well as assistance into and out of the shower chair. 13. All of the assistance I am provided must be done very slowly. On an average day, just the routine activities I have described can take approximately five to six hours. For example, showering alone takes about forty-five minutes, with the
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dressing and undressing, assistance getting into and out of the shower, and washing. Just getting out of bed in the morning can take fifteen to twenty minutes. 14. I cannot move quickly due to pain, which is mostly in my back and right leg but also sometimes in my left leg. I also experience pain in my hands where I recently had carpal tunnel surgery. In addition to the pain, the COPD and congestive heart failure cause me to become breathless if I do anything to exert myself. 15. I cannot stand to prepare meals. The most I can do for myself is prepare cold cereal or make a cold sandwich. I go to the grocery with my worker once each month, using the motorized scooters provided by the grocery store, so that I can choose what I want. However, my worker must get things from the shelves, push the basket with the groceries, load the groceries into the car, take the groceries into the house and store whatever was purchased. 16. I do not drive, but do still have a driver’s license. I haven’t driven in over a year. Either my worker or my aunt, who lives in Lafayette, must bring me to doctor’s appointments. 17. My worker does my laundry, and folds and puts away the clothes for me. 18. I began receiving services in 2009 from the Long-term Personal Care Services program. I was awarded thirty-two hours and thirty minutes at that time, but I believe, I could have used more assistance. In 2011, I lost my services for approximately three months due to a poorly done assessment, which took place on December 1, 2010. That assessment found that I was ineligible. The assessment incorrectly indicated that I was independent in toileting, transferring and eating; however, I need
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extensive help with all of those activities, and I needed extensive help with those activities at the time of the assessment. 19. I appealed the decision, and brought letters from my doctors stating that I needed help with personal care tasks, and still my services were stopped in late March of 2011. 20. During the appeals hearing, the administrative law judge suggested I reapply for services and gave me the number to call. I reapplied for assistance, was found eligible and my services started again in July of 2011. The assessment that found be eligible was done on June 3, 2011, and it correctly indicates that I need assistance with toileting, transferring and eating, as well as, bathing, dressing, locomotion and tending to personal hygiene. 21. I believe that my physical and mental health deteriorated during the time that I did not have services. My depression worsened and I had great difficulty getting out of bed to eat, shower or toilet. Sometimes, I didn’t eat or get out of bed for the full day. 22. The only assistance that I had was from my, then twelve-year old grandson who would come to my home after school to help me and would help me on weekends. Without my grandson’s assistance, I would have had no choice, but to go into a nursing home. My grandson, not only assisted me with personal care, but he also, assisted me with meals, laundry and shopping. . My grandson is now thirteen and I love him dearly, but I do not think this is something that a thirteen-year old child should have had to do for me.
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23. When my services were reinstated, I was granted 30 hours of services per week. Now, once my worker leaves I often go to bed and do not get up. Frequently, there is not enough time to shower and have three meals a day. This means that I do not get the meals I should, which is important with my diabetes, and I do not drink the amount of water I should because I cannot go to the toilet. 24. I feel like a prisoner in my bed. 25. Even though thirty hours per week does not give my worker enough time to care for my personal care as well household chores, I did not appeal. In the previous hearing I had been through, my needs did not seem to be considered, and I was just told to reapply. If I appealed, I could only get up to 32 hours a week of help, which would still be inadequate. I have not been told that any emergency waiver slots could be made available to me if I won my appeal. It is too late for me to appeal now. 26. If I had more assistance, I might have the energy to do things that I enjoy, such as visiting with friends and shopping, It has been a very long time since I have been able to get out and do anything other than go to the doctor’s office. 27. I believe I need three to four hours of assistance in the morning and three to four hours of assistance in the evening to assure that all of my personal care tasks are accomplished, along with the household chores that I cannot do such as cleaning, laundry, shopping and cooking. 28. I am divorced and have three grown children. None of my children assist me on a regular basis. I cannot depend on them for assistance. One of my daughters has taken on the role of caregiver for my ex-husband who has a significant disability, and does not have time to assist me since she must also work.
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29. My mother is 88 years old and has Alzheimer’s disease, so she cannot assist me. I have seven brothers, but they do not help me. 30. I am eligible for and receive Medicaid. I receive $674 per month in Social Security retirement and $20 per month in supplemental security income. 31. I do not think I can continue for much longer with only thirty hours of assistance per week, and I hate to think about it, but I realize I might have to go into a nursing home for care. 32. If I were in a nursing home, I know my mental and physical health would deteriorate. I would not have the joy of seeing my grandson as often, and I would not have much to live for. 33. I can live in my own home with adequate assistance and I want to stay in my own home.

9/21/11 Date

/s/C.D. C.D.

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Exhibit 8 Declaration of Lecy Broussard, A.P.R.N.
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DECLARATION OF LECY BROUSSARD, APRN Lecy Broussard subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is Lecy Broussard. I am a Board-certified Family Psychiatric and Mental Health Nurse Practitioner. I have a bachelor’s degree in nursing from the University of Southwestern Louisiana and masters in science from the University of South Alabama College of Nursing, which I received in 2005.
2. I am in private practice in Crowley, Louisiana and my business is Acadiana Psych Associates, LLC. I work in collaboration with Edgardo Concepcion, MD. As a Board-certified Adult Psychiatric and Mental Health Nurse Practitioner I perform psychiatric evaluations, and provide medication management and supportive therapy. I have been doing this type of work for approximately five years.
3. I have been treating C. D. for approximately five years for Major Depression and Panic Disorder. I provide her with medication management and supportive therapy in an outpatient setting.
4. Ms. D. is diagnosed with chronic obstructive pulmonary disease, congestive heart failure, macular degeneration, as well as the conditions causing chronic pain such as arthritis, disc disease, and carpal tunnel syndrome. These physical ailments compound the affects of Ms. D.’s depression and panic disorder. It seems that when Ms. D. is forced to perform her own self-care and take care of her household, she is in much greater pain. The increased pain causes her to have difficulty sleeping, which leads to an exacerbation of her depression.
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5. It is my understanding that Ms. D. currently receives thirty hours per week of home care services through the Long-term Personal Care Services program. Due to chronic pain and her inability to care for herself and perform her household duties, she needs this program to avoid institutionalization in a nursing home.
6. Earlier this year, Ms. D.’s services were terminated. During this time, I noticed that her pain seemed to intensify, she decompensated mentally and her depression intensified. I noticed that during this time she had severe and persistent crying spells, she had insomnia and she was greatly agitated. It is my professional opinion that this change in her emotional and mental health was due to the withdrawal of home care services.
7. During the time, that Ms. D. had no services at home, I feared she would need to be hospitalized. Often in appeared that she could not cope with her life as it was, and I feared that she could get to a point of harming herself. Her appointments with me became much more frequent during the time that she did not have personal care services. I made changes to her medication during that time, but she has, now, resumed the medication regime she had prior to her services being eliminated.
8. Although, Mr. D.’s services were restored in July of 2011 and her health is beginning to stabilize, I do not believe that thirty hours per week will adequately meet Ms. D.’s needs over time. It seems that Ms. D.’s needs are still not being met. She is not eating properly because she often doesn’t get all of her meals, and she is still forced to do things for herself the remaining time of the day when no worker is available. Ms. D. should have assistance each time she goes to the
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toilet. She should have liquids when needed, and not be afraid to drink because she will have to get out of bed to toilet. She should not have to stand and walk to the kitchen to get water or food when her pain is too great to allow her to do so. My understanding from Ms. D. is that she is not always being bathed if the worker does not have time to do that, and that is important to her, especially if she has had an accident during the day or night. As stated earlier the exertion of performing self-care activities causes Ms. D. a great deal of pain, which intensifies her mental health and also appears detrimental to her physical health. 9. Ms. D.’s health, although better now that her services are restored, is not as strong as it could be. I believe she may never be as healthy as she once was. Her pain only seems to have deepened, and she seems to need more assistance with her activities of daily living. 10. Ms. D. still relies on her thirteen-year old grandson to provide some of her care because she does not have enough paid assistance. This causes undue emotional stress on Ms. D., because she does not believe her grandson should have to help her. And, it is my opinion that her grandson should not have to do these things for his grandmother. She wants his company, but she does not want him to be her caregiver. I believe that Ms. D. mental health would be greatly improved, if she knew she did not have to depend on her grandson. 11. Based on my observations of Ms. D., I believe she has not, yet, gone into a nursing home because she struggling to stay in her own home. I do not believe that the current amount of services she receives is enough to keep her out of a nursing home. I believe that without adequate assistance her mental and physical
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health will continue to deteriorate and she, eventually, will be forced into a nursing home. 12. For all reasons identified in the above paragraph, I recommend that Ms. D. receive between ten and twelve hours per day of home care services. I believe that this amount of personal care services is necessary for her to attain and hold onto her optimal level of emotional and physical functioning. 13. Ms. D. should be provided the services she needs to remain in her home. She will be healthier, both mentally and physically, if she remains at home rather than enters a nursing home.

/s/ L. Broussard, APRN Lecy Broussard, APRN, PMH-NP, BC

8/25/11 Date

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Exhibit 9 Declaration of I.M.L.
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DECLARATION OF I.M.L. I.M.L. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is I.M.L. I live alone. I am 81 years old and have lived and worked in New Orleans, Louisiana most of my life.
2. I began working when I was ten years old, washing dishes for a neighbor, which was the year my mother died. My father died when I was three years old, so I never knew him.
3. I worked until I was seventy-six years old. I worked as a cook, as a nurse’s aid in a nursing home, and as a janitor for an office building. I held many jobs, but my favorite was cooking.
4. Because of my chronic disabling conditions, I can no longer cook, clean, do laundry or tend to my own personal care.
5. I need help with everything I do. I need help transferring, toileting, bathing, grooming, ambulating, dressing, and eating.
6. I was diagnosed with diabetes when I was in my twenties, and when I was in my seventies, I was diagnosed with kidney disease and arthritis. I continued working for three years after the diagnoses of kidney disease and arthritis, but eventually I had to leave my job. I was asked to return to work by the manager of the job I left, but didn’t feel that I could manage it any longer.
7. Approximately one year ago, I began having blood clots and was diagnosed with Parkinson’s Disease and gout. These diagnoses were made after going to the doctor because I fell outside while walking up the steps to my apartment.
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8. All of my medical conditions are chronic and are not expected to improve. In fact, I find that as my Parkinson’s Disease, my gout and my arthritis progresses and, as I age, I have become much weaker.
9. I cannot pick up a glass to drink and have difficulty holding a fork or spoon to feed myself. I have a cup that I can hold once my worker hands it to me, and I drink out of that cup. When taking my medicine, I often drop pills on the floor and have to wait for someone to pick them up. I cannot bend to the floor to retrieve the medication.
10. I cannot undress before toileting and cannot dress after toileting. I cannot clean myself after going to the toilet. I have a bedside commode with railings, and using all of my strength, I can get myself on and off the bedside commode; however, I still cannot clean myself. I have fallen trying to get out of the bed to the toilet, so I only get up, if it is absolutely necessary.
11. I cannot get up from a chair without assistance. I cannot get in and out of the bathtub without assistance and I cannot wash myself or towel myself dry after bathing.
12. When I applied for services in 2007, I was given twenty-eight hours per week of Long-term Personal Care Services. Because twenty-eight hours per week was not enough time, I still had to do many things for myself that my worker did not have time to do, such as cooking and cleaning, and even tending to my personal needs.
13. During this time, I was forced to transfer on my own, which was extremely difficult and painful for me, and toileting on my own was very hard.
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14. Since 2007, my ability to do things for myself became more difficult, because my muscles and body were less able to deal with the stress of performing activities that were too difficult to perform.
15. In 2008, my hours were increased to thirty-nine hours per week. My worker now has time to provide me with most, but not all, of my personal care and take care of my household needs, such as cleaning, laundry and shopping.
16. After I had my annual assessment on July 13, 2011, I received the attached notice informing me that I was approved to receive only 32 hours a week of services, beginning August 8, 2011. I have never gotten notice from the State that I could apply for an emergency EDA waiver slot if the 32 hours of service were not enough to prevent me from having to enter a nursing home for care.
17. On a typical day my worker arrives at 9:00 AM. She empties my bedside commode, assists me to get out of bed, bathes me and dresses me. These few activities, alone, can take approximately ninety minutes.
18. My worker then prepares my meals for the day and feeds me breakfast. Eating takes a lot more time than when I could feed myself and could chew easier.
19. My worker makes sure I have something to drink and takes care of household chores that should be done that day. In addition, she helps me as needed to go to the toilet. Toileting also takes a lot of time because I cannot, alone, get to the toilet, sit on it, or clean myself.
20. If my worker brings me to the doctor that day or has to do shopping, then some of the personal-related chores usually do not get done. That could be a bath or maybe she will not prepare a meal.
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21. My worker leaves at 3:00 PM on Sunday, Monday, Tuesday and Wednesday and she leaves at 2:00 PM on Thursday Friday and Saturday. Before she leaves, she assists me to the toilet and helps me get into the bed, where I usually remain until the next morning when my worker comes to help me get out of the bed. She leaves food in the kitchen for me and if I feel strong enough, I can have an evening meal, but often I do not eat after she leaves because it hurts too much to get out of bed.
22. Until about a year ago, I was very active in my church, which is the same church I have enjoyed attending for more than forty-five years. I would still be active, today, if my health permitted. The priest from my church visits at least once each week to give me communion and pray with me. I still go to mass when I feel strong enough, but those times are rare. If I do go to church, my priest will either pick me up or send someone else to pick me up and bring me to church. I very much enjoy these occasions.
23. Neighbors and friends also sometimes visit me. 24. I raised nine children, and usually worked two jobs to make sure they could have
an education. Five of my children are now deceased. I have one son that is in a nursing home, after being severely beaten by the police approximately ten years ago. I have another son that lives in New Orleans, but he does not assist me. He has an intellectual disability and is an alcoholic. I have two living daughters, one has Alzheimer’s Disease and lives with her daughter in New Orleans, and one lives in Texas, which is where she remained after evacuating as a result of Hurricane Katrina in 2005.
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25. I had eight sisters, and they are all deceased. 26. I am eligible for and receive Medicaid. My income is approximately $700 per
month from Social Security. I also receive Medicare. 27. Medicaid pays for my Long-term Personal Care Services, and I need at least the
amount of assistance I have now. However, I believe I could benefit from a couple of hours each night, so that I would not have to get into bed in the afternoon, in addition to the thirty-nine hours that I have, and to make sure I have an evening meal and use the toilet. 28. If my hours are reduced, I am afraid that I will have to go into a nursing home which I very much do not want. I have lived in my apartment for eighteen years and want to continue to live here. 29. I know the poor care that a nursing home can provide based on the care my son receives and based on what I saw when working in nursing homes. 30. I do not want to go to a nursing home. I worked too hard and for too many years, to be forced out of my home and into a nursing home. 31. I want to stay in my home where I believe I can live a healthier and safer life.

/s/I.M.L. I.M.L.

8/17/2011 Date

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Exhbit 10 Declaration of Scharmaine Lawson-Baker, D.N.P.
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DECLARATION OF SCHARMAINE LAWSON BAKER, DNP, FNP-BC Scharmaine Lawson-Baker subscribes under penalty of perjury, pursuant to 28
U.S.C. § 1746, as follows: 1. My name is Scharmaine Lawson-Baker. I am an Advanced Practice Registered Nurse, practicing in New Orleans, Louisiana. I received my Baccalaureate in Nursing from Dillard University in New Orleans, Louisiana. I received a doctorate in Nursing Practice in 2008 from Chatham University in Pittsburgh, Pennsylvania. I am Board Certified as a Family Nurse Practitioner. 2. In the scope of my practice I treat many people with disabilities, including the elderly, who cannot get out of their homes to see their physician. I specialize in making home visits through my company, Advance Clinical Consultants, LLC. I have the only nurse practitioner-owned house call practice in New Orleans. I have been treating people with disabilities in their homes since 2004. I currently visit approximately 500 patients who have chronic disabilities and who need to receive care in their homes. 3. I have been treating I.M.L. for approximately seven years. I monitor her blood pressure, check the edema in her lower extremities, refill her medications, prescribe home care therapies, as needed and monitor her overall health with the goal of keeping her out of the hospital. I visit Ms. L. once a month. 4. Ms. L. is diagnosed with diabetes, kidney disease, arthritis, blood clots, gout, Parkinson’s disease and high cholesterol. 5. These combined chronic conditions cause Ms. L. a great deal of pain on a daily basis and render her unable to perform basic personal care and household chores.
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6. Ms. L. needs extensive assistance transferring, toileting, eating, drinking, grooming, bathing, dressing and ambulating. In addition, she no longer has the capability to perform household chores, such as laundry and cleaning. She no longer shops for herself, and cannot prepare meals. 7. My understanding is that Ms. L. is currently receiving thirty-nine hours per week of home care assistance through the Long-Term Personal Care Services program. It is my professional opinion that Ms. L. needs at least that amount of assistance to remain healthy and stable in her own home. 8. I have treated hundreds of elderly people with disabilities similar to those that Ms. L. has. Though the amount of assistance required with personal care tasks, housekeeping, and shopping varies based on the individual, the size of the home, and the amount of help available, I can state that persons with the degree of disability that Ms. L. has, who need extensive assistance with eating, toileting, transferring, and ambulating generally require at least six hours a day of personal care and housekeeping assistance to avoid deterioration in their conditions, and thus to avoid having to enter a nursing home. 9. It would be better for Ms. L.’s health if she were not forced to go to bed in the afternoon. Ms. L. should not miss meals because of her diabetes, and with the assistance she has now, she goes to bed in the afternoon and sometimes is not able to eat an evening meal. It would be better for the edema in Ms. L.’s lower extremities if she were not in bed for such long periods of time. If Ms. L. had assistance to get to the toilet later in the day, it would be less likely that she would have to use her bedside commode, which she has fallen out of bed trying to do.
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10. Without adequate home care assistance, Ms. L.’s health will deteriorate and she will likely have to seek care in a nursing home. It is my opinion that her physical health, as well as her mental health, will decline without adequate home care. If she does not have proper nutrition and get her medications as prescribed her health will suffer. If forced to stay in bed for even longer periods of time, I fear the edema she currently has would get worse and hospitalization or even, nursing home care would be required. 11. Ms. L. has proven that she can remain in her home with personal care assistance. She should not have to enter a nursing home to get the care that she needs. I believe the amount of personal care she gets is important to her health, happiness and wellbeing, and I see no reason for that to be jeopardized.

/s/ Scharmaine Lawson-Baker Scharmaine Lawson-Baker, DNP, FNP-BC

8/17/11 Date

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Exhibit 11 Declaration of V.U.S.
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DECLARATION OF V.U.S. V.U.S. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is V.U.S. I live in New Orleans, Louisiana, and have lived here all of my life. I am thirty-six years old. I live with a roommate who works out of town most of the time. My roommate is not available to help with my care.
2. I had a traumatic injury when I was 25 years old that caused me to have quadriplegia, which means I am paralyzed from the upper chest down. I cannot move my legs and only have gross movement of my arms. I also have diabetes.
3. I need assistance with all of my personal care activities, including toileting, bed mobility, transferring, showering, personal hygiene, and dressing. Described below is a typical day in my life. a. My personal care attendant arrives, and I let her in by using a remote control to open the door. She quickly empties my catheter bag because it ﬁlls up completely overnight. Too full a bag can lead to urinary problems, infection, and a drastic spike in my blood pressure called autonomic dysreﬂexia. I use a catheter because I am incontinent. b. Next, she gets me into my Hoyer lift. She cannot lift me without the Hoyer lift. Using the Hoyer lift, she transfers me to my shower chair. She gives me an enema. Getting in and out of bed in the morning and transferring to the shower chair can take a half an hour a day. c. I have a roll-in shower, so she rolls me into the shower, and while I am in my shower chair, I have a bowel movement. Afterward, she bathes my entire body and washes my hair. I brush my teeth while I am in the
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shower. Brushing my teeth is one of the few things I can do independently, once she puts toothpaste on the toothbrush and puts my toothbrush into my hand. The shower task alone can take an hour or more each day. d. Once she dries me after the shower, she transfers me back to my bed using the Hoyer lift, and she then dresses me. To put on my shirt, she puts one arm in one of the sleeves, and then rolls me to one side to put the shirt under me and put the other arm through the second sleeve. She then puts on my pants or skirt. This activity can take thirty minutes. e. When I have urinary tract infections, which occur about once every other month, she also has to put a diaper on me. f. Once I am dressed, she transfers me into my wheelchair. While in my wheelchair I am fairly independent. I can use a computer by using two of my ﬁngers to type or using certain software that helps me to type. g. My attendant prepares breakfast for me and sets in on the table. She places my utensil in my hand, so that I can eat. I can feed myself. She also prepares something for me for lunch and puts in a place where I can reach it. She cleans the breakfast dishes and the kitchen area. h. Once I am in my wheelchair and have food prepared, I can take care of most of my needs. The morning tasks that I described above take between three to four hours a day. i. When my worker returns to my home in the evening, she prepares an evening meal for me, and places it on the table.
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j. While I eat, she takes care of household chores, such as cleaning the house and the bathroom and doing laundry.
k. Once I have eaten, she cleans the area where I have eaten, and cleans dishes that need to be cleaned.
l. After I have eaten, she assists me to prepare for bed. She assists me to wash my face, put toothpaste on my toothbrush and comb my hair.
m. Before assisting me into bed, she makes sure that a dry pad is placed on my bed in case I have an accident at night. Approximately once each week, I wet the bed and the sheets must be changed and cleaned when this happens.
n. She transfers me into bed from my wheelchair using my transfer board. o. She then disconnects my catheter from my leg bag and connects my
catheter to a larger overnight bag. p. She then takes care of any odds and ends around the house, and leaves me
for the night. The evening tasks, from preparation of my evening meal to leaving me for the night, take my worker approximately another three hours. 4. When I am alone at night, I cannot exit my home in an emergency. However, this is a risk that I prefer to take, if my only other option is a nursing home. 5. I need assistance with laundry, house cleaning, and meal preparation. I cannot perform any of these tasks independently. I am able to plan meals and make shopping lists.
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6. In addition to the tasks listed above, I need assistance with shopping and errands. My worker usually assists with these tasks on the weekends. I can get to the store in my van, but I need someone to handle my purchases and my money. Assisting me to shop for food, clothing, household items, and other personal needs generally takes my worker approximately 2 to 3 hours a week.
7. Until May of 2011, I was working for Ochsner Foundation as a Clinical Research Coordinator. Once my attendant got me ready for work, I could drive myself to work in an adapted van. While at work, my co-workers would assist me by assisting me to heat food that I have for lunch and getting my lunch to the table. They also helped me get water and other liquids during the day. I was provided with adaptations to my phone and my computer, and had clerical assistance to perform tasks I could not perform. Currently, I am looking for fulltime work.
8. I work put-time for a medical laser company doing things such as advertising, web design, and some general bookkeeping. I work 1-2 hours per week and am paid $20 per hour. I also receive $247 per week in unemployment and as of this week have only 18 weeks left before my unemployment is terminated. I have applied for Social Security Disability Insurance, but am still waiting to hear from the Social Security Administration.
9. I received my Masters Degree in Public Health from Tulane University in 2004 and my Bachelor's Degree in Psychology from Tulane in 1997. I was in medical school at Louisiana State University when my injury occurred, and the university asked me to leave the program because the Louisiana State University Medical
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School did not think I could meet all of the physical requirements of medical school. 10. My parents live in New Orleans and provide me with a lot of emotional support. They cannot provide me with physical care because they are not able to lift me. In addition, they work at the French Market in New Orleans, which means they work seven days a week from about 8:00 AM until 8:00 PM. When they are not working they are assisting my 30 year-old brother who lives with my parents and has an intellectual disability. 11. I have a sister who provided me with some assistance in the past, but she now is married, pregnant and has a three-year old child. She no longer has time to provide me with personal care. 12. I received an Elderly and Disabled Adult (EDA) Waiver slot in October of 2002; however, when I started working, I was told I earned too much money to remain on the EDA Waiver, so I was discharged from that Waiver. 13. 1 purchase Medicaid through the Medicaid Purchase Plan, so I am able to access Long- term Personal Care services. Currently I receive 39 '/2 hours per week of Long-term Personal Care services. At one time I was receiving 56 hours per week. I believe I need 42-45 hours per week to be healthy and safe at home and in the community, or approximately 3 hours of assistance in the morning and three hours of assistance in the evening with extra time on the weekends for shopping and errands. 14. Even working full-time, I cannot afford to pay for all of the personal care services that need. When I was working for Ochsner, I made $30,000 per year, and my
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attendant care would cost me approximately $32,850.09 per year. This is based on $15 per hour of personal assistance services, which was the rate quoted to me by my current provider in April of 2011, when I lost Medicaid for three weeks causing me to pay out of pocket for care. 15. Without adequate personal care attendant services, I would be trapped in my own home and not able to work or enjoy a social life. I enjoy going to movies, out to dinner, local festivals and generally spending time with family and friends. I also have a group offriends that gets together for "game night" once each month, where we play cards or board games. My friends and I alternate homes for game night. It would be impossible for me to enjoy this time with friends if I were forced into a nursing home. 16. My most recent annual assessment for LT-PCS was performed on July 8, 2011. Though my needs have not changed, my assessor notiﬁed me on the day of my assessment that my hours would be reduced to 32 hours per week starting August 1, 2011. I have not received any notice from the Department of Health and Hospitals about the availability of an Emergency EDA waiver slot if I needed more hours to avoid having to go into a nursing home. If I am only approved to receive 32 hours of Long-term Personal Care Services per week, I will have to move into a nursing home. 17. Thirty-two hours of personal care assistance a week would not be sufﬁcient to meet my needs. My worker would not have time to take care of my personal needs, prepare my meals, do my housekeeping, and assist me with necessary shopping for food and other household items and personal needs. Because of the
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lack of time for meal preparation and shopping, I may be forced to skip meals which are not advisable for a diabetic. In the evening, if my worker's time were shortened, I would have to go directly to bed after I eat, which will make it hard for me to digest my food properly. With the hours of help I have now, I can sit up for a while after eating and before going to bed, while my worker completes her housekeeping and laundry tasks. 18. The agency that provides my long term personal care services has told me that they will have difﬁculty ﬁnding and keeping staff to work the shorter shifts that would be needed if my hours were reduced. When staff does not show up, I can be left in my bed for a full day or be forced to sleep in my wheelchair. Staying in bed or my wheelchair for this long can cause skin breakdown which could lead to decubitus ulcers, which are extremely dangerous for a person with quadriplegia. Staying in bed also causes depression, hypoglycemia, dysreﬂexia, all very dangerous conditions for me. I also am a diabetic, take numerous pills for other health concerns, and need food, water, medicine at certain times and seven days a week. 19. It will be difﬁcult for me to ﬁnd and keep a job if I do not have a reliable worker to provide an adequate amount of personal care. My hygiene will suffer, and I will not be able to keep a normal work schedule. 20. I do not want to go into a nursing home. I do not want to lose my independence and my freedom. If I were living in a nursing home, I would lose my opportunity to work, and would not have the opportunity to remain active in my community. I
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believe my physical health, as well as my mental health would decline drastically.

8/19/2011 Date

/s/ V.U.S. V.U.S.

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Exhibit 12 Declaration of Cherie Drez, M.D.
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DECLARATION OF CHERIE DREZ, MD Cherie Drez, MD subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. My name is Cherie Drez and I am a licensed physician practicing Internal Medicine in Gretna, Louisiana, which is in the Greater New Orleans area. 2. I have been affiliated with Ochsner Medical Center for approximately ???. 3. I am Board certified in Internal Medicine and in Pediatrics. 4. My practice includes many people with traumatic spinal cord injuries, so I am familiar with the personal care needs of people with such injuries. 5. I have been treating V.U.S. for approximately four years. Although her condition is medically stable, she requires extensive assistance to live at home and remain independent. 6. Ms. S. needs assistance with toileting, bathing, dressing, transferring and personal grooming. In addition, she does not have the physical capability to perform household chores, do laundry, or prepare meals. 7. She has no functional use of her legs. She has gross motor movement in her arms, but cannot pick up an item from a table, the floor or a counter top. She cannot grab a glass from the cabinet to get her own water. She is dependent on others to assure she receives proper nourishment and hydration. 8. Ms. S. has an indwelling suprapubic catheter that empties into a catheter bag. If that bag is not emptied timely, the urine can back up causing autonomic dysreflexia, a life-threatening condition. It is crucial that Ms. S. have timely assistance to assure her catheter bag is emptied throughout the day and night.
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9. It is important that Ms. S. not be left in her wheelchair for long periods of time. She must be transferred into her bed at night or in the evening and transferred out of bed in the morning to avoid skin breakdowns.
10. Having proper nutrition and hydration is especially important to someone with quadriplegia. Eating nutritious food at regular intervals will positively contribute to keeping her bowel functioning regular. Hydration is extremely important toward preventing skin breakdowns. Ms. S. requires someone to prepare her meals and make sure she has water. She must have an adequate amount of homecare assistance to assure proper nourishment and hydration.
11. Ms. S. has been in relatively good health since I have been her physician. I attribute much of that to the fact that she has received an adequate amount of personal care services at home. She currently receives 39.5 hours of personal care services at home. I believe that her health and safety would be improved if she has 42-45 hours of care each week. She would be able to eat and hydrate on a regular schedule, her catheter bag would be emptied, as needed, and she would receive assistance to perform pressure releases, as needed.
12. It is my understanding that Ms. S. has been told that her home care hours will be reduced to 32 hours per week. It is my professional opinion that with only 32 hours per week of assistance, Ms. S.’s physical health will be jeopardy.
13. If Ms. S. were only provided with 32 hours per week, I believe her health would deteriorate and she would eventually be hospitalized and from there be forced into an nursing home. She would be in danger of increased urinary tract infections, skin breakdowns and autonomic dysreflexia without adequate assistance.
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14. I believe if Ms. S. were forced into a nursing home, it would not only cause her physical health to deteriorate, but would also cause significant deterioration in her mental health.

/s/ Cherie Drez, M.D. Cherie Drez, M.D.

9/8/11 Date

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Exhibit 13 Declaration of S.M.
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DECLARATION OF S.M. S.M. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is S.M. I live in Ball, Louisiana, and have lived here most of my life. I am 46 years old. I live with my seventeen year-old daughter. 2. I graduated from Tiago High School in 1983. After graduation and through much my adulthood, I worked different jobs. Jobs that I enjoyed very much were being a designer in a floral shop and being a cook in a local restaurant. 3. When I was fourteen years old, a diving accident left me with a spinal cord injury that affected my left side. After much rehabilitation, I became independent in caring for myself after the spinal cord injury; however, the injury did take its toll on my joints and my overall body, including my muscles. 4. While working as a cook in 2006, I had to have knee replacement surgery. I returned to work after the surgery, but I found I could not stand for as long as I once could and I needed more support when walking. I began using a walker soon after the knee replacement surgery and had to quit my job as a cook because I could not stand without holding onto the walker. 5. On December 27, 2007, I had a massive stroke and was found on my bedroom floor approximately six or seven hours after the stroke occurred. The stroke primarily affected my right side, which was my “good side” after the spinal cord injury. However, my left side is also affected, and, in fact, I have little movement or feeling on either side. 6. The stroke has left me fully incapacitated. I can move my left arm from the elbow down, and if someone puts a specific cup on the table in front of me, I can put
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my thumb through it and drink for myself. This is the extent of my ability to care for myself. 7. Currently, I receive 38 hours per week from Medicaid’s Long-term Personal Care Services program. However, I used to receive 52 hours per week of Long-term Personal Care Services before the maximum number of hours allowed was reduced to 42 hours per week, causing my hours to be reduced to 38 hours per week. My daughter had much more freedom when I received 52 hours per week. Now, because I do not have a paid assistant as often, my daughter must make sure I have meals, tend to my hygiene, and do all of the household shopping. My paid staff no longer has enough time to make sure I have three meals each day and sufficient liquids throughout the day. There are some days when I am not bathed because my worker did not have the time to bathe me. 8. I need total help with all of my care. I cannot move myself in bed, but I do have an air mattress that relieves pressure, and helps prevent me from getting decubitis ulcers or bedsores, which are extremely dangerous. 9. I have and use a suprapubic catheter, because I am incontinent, that must be monitored by home health every other week. 10. I stay in bed for bowel movements and use pads. I must be cleaned by someone else, after each bowel movement. Whoever is assisting me must also change the pads after I have a bowel movement, to assure there are new pads in case I have an accident. I cannot do anything to help with my toileting needs.
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11. I cannot transfer myself from or to the bed or the wheelchair, and cannot even assist with the transfer. I must be transferred using a Hoyer lift, and it usually takes two people to assist me even with the Hoyer lift 12. I cannot perform any of my personal hygiene tasks, including bathing, washing my face, brushing my teeth, combing my hair or shaving. I am bathed while in bed, which means someone has to not only wash me, but also change the linens of my bed after each bath. All of these tasks are done for me by someone else and all of them require a lot of time. 13. I use a feeding tube to eat and gain nourishment. I can eat some soft foods by mouth, but someone must feed me. If medications by mouth are prescribed, I must take those through my feeding tube. My family always uses my feeding tube to make sure I have enough fluids. 14. My head must be elevated or I tend to have seizures. I am on medication to prevent the seizures and the medication seems to work fairly well. However, if I am left in a reclined position or left on my side for too long when being cleaned after a bowel movement, I have a tendency to have seizures. I have a hospital bed that allows me to keep my head elevated. 15. I have aphasia, which means that I have great difficulty talking and expressing myself. Because my family knows me well, they find ways to determine what I am trying to tell them. I have good receptive language skills, and understand what people are saying to me. 16. After becoming completely inactive after the stroke in December 2007, I have gained weight and currently weigh close to 400 pounds. I must use an ambulance to
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travel to and from the doctor’s office. I do not have my own transportation, so I do not go anywhere other than to the doctor’s office or to the emergency room, when needed. 17. I cannot cook, clean my home, do laundry, go grocery shopping or shop for clothes or incidentals. I must depend on someone else to assure these tasks are accomplished. 18. I am, now, divorced after having been married for approximately twenty years. My ex-husband is not in touch with me, and I cannot even find him to force him to pay child support. 19. I have a 17 year-old daughter who is a senior in the 2011-2012 school year. She has her license as a certified nursing assistant and works in a nursing home. Depending on the demands of her school schedule and her workload at school, she may or not work during her senior year. 20. My daughter does what she can to help me, but she is only seventeen years old and needs to live the life of a seventeen year old. She should not have to stay home to take care of her mother. I want her to have the opportunities that other children have, and I want her to be happy. 21. My mother who lives nearby assists me some, typically at night, but she works for the Tioga Heritage Park and Museum. She is the only paid employee, so she must be there whenever the museum is open and she must be there when there are special events, or if workmen need to be met at the museum to do any repairs.
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22. My mother also cares for my father who has diabetes and a heart condition. My father is not able to walk well and needs some assistance with self-care. My mother provides all of this assistance for my father. 23. I have a brother that I haven’t seen in over two years. 24. I have a sister, who provides me with care as my paid provider, and also provides me with care when she is not being paid. This sister is looking for another job because she needs to earn more money. Depending on the job she gets, I fear she will not be as available to assist me. 25. Since I had the stroke, I am unable to visit as often with friends as I had done before, or do what I love, which is gardening. However, I do still enjoy sitting outside whenever I have the opportunity, talk to neighbors, and enjoy the garden and the outdoors. I very much enjoy spending time with my family. 26. I am eligible for and receive Medicaid. I receive $633 each month in Social Security Disability Insurance and I receive $61 in Supplemental Security Income. 27. I own the home that my daughter and I live in, and I do not want to give up my home and be forced to enter a nursing home. 28. If I am only provided with 32 hours per week, I will not be able to stay in my own home because my family will not be able to provide enough supplemental care to allow me to remain in my home and I will not receive the assistance I need to survive. 29. I need more assistance than the 38 hours per week that I am currently receiving. I am able to get by right now because my sister can put in extra time for which she is not paid; however, as I said before, once she gets another job, I am not sure what I will do.
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30. I want to stay in my home and receive the support that I need. I want the chance to watch my daughter grow into adulthood. Right now, my daughter is still a teenager and does still need me. I want to be sure I am there for her. I do not want to be forced into a nursing home, but I know that if I only received 32 hours of assistance each week, I will deteriorate and be forced into a nursing home.

8/26/11 Date

/s/ S.M. S.M.

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Exhibit 14 Declaration of Daniel Renois, M.D.
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DECLARATION OF DANIEL RENOIS, MD Daniel Renois, MD subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. My name is Daniel Renois. I am a physician practicing Family Medicine in Alexandria, Louisiana. I am certified by the Board of Family Practice. I graduated from medical school in 2003, and have been a practicing physician in Alexandria for over five years. 2. I have been treating S.M. for approximately three years. Ms. M. had a stroke approximately four years ago, which left her physically incapacitated Ms. M. has no functional use of her arms or legs. She cannot stand and cannot move herself. She is incontinent of bowel and bladder. Prior to the stroke she had damage to her spinal cord resulting from an accident when she was in her teens. She is also morbidly obese. 3. Ms. M. cannot perform her own personal care. She must have full physical assistance in order to transfer, bathe, dress or tend to her hygiene needs. She has a feeding tube, which is used to not only assure she receives nourishment through food and fluids, but also to provide a mechanism for her to receive her medicine. 4. Ms. M. has a supra-pubic catheter that is monitored by a home health nurse every two weeks. The bag that collects the urine; however, must be emptied several times daily. A larger bag can be used at night, but it must be emptied in the morning. 5. Ms. M. does not have the physical capability to empty her own catheter bag and must depend on someone else to perform this task. It is extremely important that this bag be emptied or her urine can back up causing a spike in blood pressure that can
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lead to autonomic dysreflexia, a life-threatening condition. Ms. M. is prescribed a prophylactic antibiotic to prevent urinary tract infections. 6. Ms. M. also has seizures and should have a caregiver that knows her to identify when a seizure is occurring, and to reposition Ms. M., when needed, to prevent seizure activity. 7. It is my understanding that Ms. M. lives with her seventeen-year old daughter and they are the sole occupants of the home. Ms. M. cannot prepare food, clean the home, do laundry, go shopping, or write a check to pay her bills. She needs complete assistance with these tasks 8. Ms. M. needs personal care services to continue living in her home. Without the services, I do not think she would have any other options other than a nursing home. 9. Ms. M. has difficulty with expressive speech as a result of the stroke, which means that she needs a caregiver with patience and time to attend to understanding her requests. If Ms. M. were to receive services in a nursing home, I do not believe that staff would have the time required to understand what Ms. M. is saying. 10. It is my understanding that Ms. M. is currently receiving thirty-eight hours per week of Long-term Personal Care Services. It is my opinion that she needs at least that amount of home care to remain at home and remain healthy. If Ms. M. has less care, I would have concerns that she would possibly not get meals timely, she would not be changed after accidents, and her catheter bag would not be emptied, timely 11. If Ms. M. were to receive fewer hours of services in the home, it is quite possible that her health would deteriorate rapidly, and that she would require much more care than she does at present.
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12. I do not believe that Ms. M. would receive the proper care if she were in a nursing facility. I believe the one to one care that Ms. M. receives is much better for her physical needs, as well as her cognitive and emotional needs.

8/24/11 Date

/s/Daniel Renois M.D. Daniel Renois, MD

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Exhibit 15 Declaration of L.M.
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DECLARATION OF L.M. L.M. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is L.M. I am forty-four years old and I live with my son, E.B., in Baton Rouge, Louisiana. E. and I are the only members of our household.
2. I work full-time for the city of Baton Rouge in the Department of Public Works, inspecting sewer and water line repairs. My job hours vary, as the outdoor work crews take advantage of long days in summer. During the summer, I am working from 7:30 a.m. to 5:30 p.m. Monday through Friday, and either one or two days every other weekend. It takes me approximately 1 hours to commute to my job on weekdays, and approximately 15 to 30 minutes to commute home, so I must be absent from the home from about 6:30 a.m. to 5:45 or 6:00 p.m., Monday through Friday, and for approximately ten hours every other weekend. There is no one to take care of E. while I am at work, other than a paid personal care worker.
3. I have had to take off so much work in the last two years that I have only approximately 16 hours of leave time left. I need my job to support myself and my son.
4. My son, E. B. is twenty-five years old. On July 10, 2008, he was in a car accident and incurred a traumatic brain injury. He was in a coma for 22 days. After the accident he was in Our Lady of the Lake Hospital until September 9, 2008, when he was moved to Touro Rehabilitation Center in New Orleans, Louisiana. He was discharged to my home in December of 2008.
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5. At the time of the accident, E. was living independently and working full-time. He had a five and a half month old son, E. B., Jr. Now, he cannot take perform of any of his self-care, much less care for his son.
6. E.’s injuries have left him with very little ability to communicate. He usually does not understand what is said to him, and he can only speak one or two words. Every now and then, if he is asked a question, he will respond with “yes” or “no”, but if you ask him the question more than once the answer is not consistent, and his answer often wrong.
7. He has no functional use of his arms and very limited use of his legs. 8. He cannot use his left hand or arm at all. He can now bend his right arm, but
cannot use his hand to grip objects or do any tasks. My understanding is that he has developed calcium deposits in his joints that cause his limbs to be stiff. On June 22, 2011, he had surgery on his right arm to remove the deposits and enable him to bend his arm. He had to have an additional surgery to repair some damage on August 2, 2011. The doctors have told me that it will take three to six months before they will know if the surgery was successful. 9. Since the surgery on his right arm, he has had to have his right arm strapped into a Continuous Passive Motion (“CPM”) machine every day. The machine mechanically bends his arm and straightens it out. His arm is supposed to be in the machine for six hours, then he takes a two-hour break, and is then he is back on the machine for another six hours. He needs assistance to be strapped into the machine. When on the machine, he must be in bed or in a chair set up next to the machine. The motion is often painful, and E. sometimes becomes agitated and
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tries to get his arm out of the machine. This is how he damaged his arm after the surgery, necessitating corrective surgery on August 2. Either his worker or I must constantly remind and physically assist him to remain on the machine as prescribed by his doctor. 10. The brain injury has left E. unable to provide any care for himself. He cannot get in or out of bed on his own, he cannot dress himself, and he cannot brush his own teeth or hair. 11. E. does not have control of his bowels or his bladder, so he uses adult diapers. His doctor has recommended that E. receive a tub bath daily to help prevent staff infections. It takes his worker approximately 55 minutes each day to bathe him. Often E. will try to scratch himself through the diaper, which results in the diaper being moved and the bed getting soiled. This creates a need for laundry to be done and sheets to be changed at least twice each day. 12. E. cannot feed himself. Since the accident, E. is using a feeding tube. He cannot chew food or swallow properly, so he must be given all nourishment and fluids through a tube that goes directly to his stomach. My son cannot even experience the joy of a good meal any longer. Having the PEG tube is another reason that the doctor recommends daily tub baths. 13. E. has very poor balance and can only walk a few steps before falling. His gait is extremely unsteady. Some one must hold on to him while he walks. He cannot use a walker because he cannot use his hands to grip the walker, and because of his balance and gait problems. When he has to travel more than a few steps, he uses a wheelchair. However, he cannot get into and out of the wheelchair without
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physical assistance, and he cannot use his hands and arms to propel the wheelchair. Someone must push the wheelchair for him. 14. E. cannot perform any household chores and cannot prepare the formula for his feeding tube. Either his worker or I must prepare the formula for the feeding tube, and I must attach the bag to the feeding tube. 15. E.’s worker must accompany to his therapy appointments and doctors’ appointments, because they take place when I am at work. He attends physical therapy occupational therapy three times a week. The appointments are in the same building. He also receives speech therapy three times each week. His personal care worker typically accompanies him to these appointments because they take place when I am at work. Each therapy appointment takes one hour, and it takes approximately 40 minutes round trip to take him to the physical and occupational therapy clinic, and approximately 30 minutes round trip to take him to the speech therapy clinic. Thus, just his therapy appointments take the personal care worker 18.5 hours a week. I am not willing to cancel the therapy appointments because it is very important that he receive these services since his doctors believe he may still recover some function, but only if he continues the therapy. 16. With the reduction in E.’s LT-PCS hours from 42 to 32, his LT-PCS worker has said that she sometimes does not have time to bathe E. as recommended by the doctor. In addition, she may not have time to do the laundry that has been soiled. 17. My son has seizures approximately two to three times each month as a result of the brain injury. He is on seizure medications, but the medication does not
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completely control the seizures. He cannot report these to the doctor himself, so either his LT-PCS worker or I need to be able to observe him and report seizures to his doctor. 18. E. also has problems with judgment and memory since the accident. He does not always have a clear understanding of what he can and cannot do. He will try to get out of bed or a chair if no one is with him and he will fall after taking only a couple of steps. He needs physical assistance with walking and transferring for his own safety. 19. I applied for Long-term Personal Care Services for E. when he came home from Touro Rehabilitation Center in December of 2008 and he began receiving services in January of 2009. In 2009, he was awarded 42 hours per week. and received 42 hours per week until June 14, 2011, when his hours were reduced to 32 hours per week. 20. At some point in 2010, I was notified that E.’s hours had been reduced to 32 hours per week. I appealed that reduction, and while the case was on appeal, his hours stayed at 42 per week. I was notified that I won the appeal, but almost immediately, he was reassessed and his hours reduced to 32 per week. To the best of my knowledge, he started receiving 32 hours of LT-PCS a week starting on June 6, 2011. 21. I contacted the Advocacy Center in August of 2011 about trying to get additional LT-PCS for E.. It was through the Advocacy Center that I learned that I could apply for an emergency EDA waiver slot for E.. I was not notified in any way by
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the Department of Health and Hospitals of the availability of emergency EDA waiver slots. 22. I believe my son’s ability to understand and communicate has improved since the accident. However, his physical condition and his need for care has not changed from the time that his services began to the time his hours were reduced. He continues to require the same care with all activities of daily living that he has needed since returning from the hospital. 23. Since June of 2011 when the services were reduced, I have had take off work, and have had to pay out of pocket for someone to care for E. when I am not able to be at home. I will not be able to continue to make these financial contributions much longer. In addition to the missed work and the out-of-pocket expenses for care services, I must pay over $300 per month for his diapers and gloves needed to handle his PEG tube and diapers. 24. E. used to enjoy spending time with his friends when he wasn’t working. Now, he has very few friends, but does still enjoy seeing his best friend. However, he cannot drive, and he must depend on me to have the time to bring him to see his friend. Because of my work schedule and the time I spend caring for E., I have little time to help E. see his friends and family members. 25. He is still able to see his son, and I can tell by the joy on his face that these times make him very happy. 26. E. has no family available to help other than me. He has one sister who is an adult, but she works full time. In addition, she lives with and cares for my aging parents. My father recently had a stroke and my daughter has become his primary
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caregiver. My father is eighty-four years old and my mother is seventy-six years old. 27. E. has been determined eligible for services through the Capitol Area Human Services District. In 2010 he started receiving funding that enabled me to pay a personal care worker for an additional ten hours a week, but at the end of June 2011, these services were discontinued. I have requested that the services continue, but a representative from Capitol Area Human Services District told me that their funds were limited and that they would not be able to continue this funding for E.. 28. E. is too young to enter a nursing home, and I will do everything I can to prevent that from happening. However, if I quit my job, we will not have the income needed to sustain our home. As it is now, I do not have much leave left, and am having to take leave more often to assure that someone is with E.. 29. I want E. to remain at home with me, where he is happy, is making progress in understanding and communicating, and gets to see his family and friends occasionally. I am willing to continue doing what I can do, but he cannot make it if all he will receive is thirty-two hours per week. E. deserves to be able to stay home with me, and that is where I want him. I do not want him to go to a nursing home.

/s/L.M. Lovie Marshall

Sept. 7, 2011 Date

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Exhibit 16 Declaration of Vasanthi Vinayagam, M.D.
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DECLARATION OF VASANTHI VINAYAGAM, MD Vasanthi Vinayagam, MD subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. My name is Vasanthi Vinayagam and I am a licensed physician practicing in Baton Rouge, Louisiana since 1979. I received by medical degree in 1985 . I completed my residency in Family Practice at Baton Rouge General Medical Center. I am Board Certified in Family Practice. 2. I am affiliated with Lane Regional Medical Center, Baton Rouge General Medical Center, and Our Lady of the Lake Regional Medical Center. 3. I have been treating E. B. at the Primary Care Group for approximately one year. 4. In 2008 Mr. B. suffered a traumatic brain injury as the result of a car accident. His injury has left him with little functional use of his arms and legs, and has resulted in him having to use a PEG tube to receive nourishment. In addition, he has a seizure disorder which seems to be a result of the traumatic brain injury. 5. Mr. B. is incontinent of bowel and bladder and uses adult diapers on a daily basis. The diapers must be changed whenever soiled, and Mr. B. must be thoroughly cleaned to prevent skin breakdowns. Mr. B. is not able to tend to any of his toileting needs and must depend on others to do this. 6. Mr. B. cannot transfer from a sitting to a standing position or from a standing to a sitting position without assistance. He must have physical assistance to get in and out of bed. 7. Mr. B. does not have stability and has poor equilibrium, so will not be able to stand up straight for more than a couple of steps. He needs weight-bearing assistance
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to ambulate. He is not able to use a walker because of his inability to use his hands and arms. He cannot propel himself in a wheechair. 8. Based on Mr. B. inability to functionally use his hands, arms or legs, he needs full help dressing and undressing, as well as bathing. I recommend that he be bathed in the tub daily because of his use of diapers and because of his PEG tube. The area where the catheter is inserted into the stomach must be cleaned thoroughly on a daily basis. 9. Mr. B.’ traumatic brain injury also left him with poor judgment, impaired short and long term memory, and problems with expressive and receptive speech. 10. Due to Mr. B. physical impairments, as well as cognitive impairments, he cannot perform any household chore activities. 11. Mr. B. had surgery on his right arm in June of 2011 to enable him to bend his arm. He had to have an additional surgery to repair some damage on August 2, 2011. 12. His surgeon has prescribed use of a Continuous Passive Motion (“CPM”) machine every day. The machine mechanically bends his arm and straightens it out. His arm is supposed to be in the machine for six hours, then he takes a two-hour break, and is then he is back on the machine for another six hours. He needs assistance to be strapped into the machine. He must be assisted into and out of the CPM machine and must be reminded to continue to use it. 13. Mr. B. has seizures as a result of his brain injuries. These are only partially controlled with medication. It is important for someone to be with him to be able to recognize when he is having a seizure, ensuring that he is safe, and reporr the seizure to me so that I can adjust his medication if needed.
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14. Mr. B. needs physical therapy, occupational therapy, and speech therapy three times a week to assist him in rehabilitating from his injuries. He must be accompanied to these appointments. 15. It is my understanding that, presently, Mr. B. is only receiving thirty-two hours of assistance per month. He needs more assistance to ensure that he can remain at his current level of functioning. 16. Mr. B. should be able to remain at home, and can do so with adequate personal care assistance.

/s/ Vasanthi Vinayagam, M.D. Vasanthi Vinayagam, M.D.

9/8/11 Date

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Exhibit 17 Declaration of Donna Zeno
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Exhibit 18 Declaration of Lisa Richards, M.D.
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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

________________________

*

Kenneth Roman, Rickii Ainey, and

*

Elizabeth Foster, on behalf of themselves *

and all others similarly situated,

*

*

Plaintiffs,

*

*

v.

*

*

Bruce Greenstein, in his official

*

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

Louisiana Department of Health and

*

Hospitals,

*

Defendants,

*

*

________________________

*

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

LIST OF EXHIBITS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Exhibit 1 Third Declaration of Jean Abadie

Exhibit 2 Declaration of Nell Hahn

Exhibit 3 Declaration of P.M.

Exhibit 4 Declaration of W. Patrick Gahan, M.D.

Exhibit 5 Declaration of E.M.S.

Exhibit 7 Declaration of C.D.

Exhibit 8, Declaration of Lecy Broussard, A.P.R.N.

Exhibit 9, Declaration of I.M.L.

Exhibit 10, Declaration of Scharmaine Baker, D.N.P.

Exhibit 11, Declaration of V.U.S.

Exhibit 12 Declaration of Cherie Drez, M.D.

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Exhibit 13, Declaration of S.M. Exhibit 14 Declaration of Daniel Renois, M.D. Exhibit 15, Declaration of L.M. Exhibit 16 Declaration of Vasanthi Vinayagam, M.D. Exhibit 17, Declaration of Donna Zeno Exhibit 18, Declaration of Lisa Richards, M.D.

Date: September 27, 2011.

Respectfully submitted:
/s/ Nell Hahn Nell Hahn, T.A., Louisiana Bar No. 22406 ADVOCACY CENTER 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 311 (337) 237-0486 FAX Email: nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada1@gmail.com
Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424

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Counsel for the Plaintiff CERTIFICATE OF SERVICE I hereby certify that on September , 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

________________________

*

Kenneth Roman, Rickii Ainey, and

*

Elizabeth Foster, on behalf of themselves *

and all others similarly situated,

*

*

Plaintiffs,

*

*

v.

*

*

Bruce Greenstein, in his official

*

capacity as Secretary of the Louisiana

*

Department of Health and Hospitals, and *

Louisiana Department of Health and

*

Hospitals,

*

Defendants,

*

*

________________________

*

C.A. No. 3:10-cv-00635-JJB-SCR
Judge James J. Brady
Magistrate Judge Stephen C. Riedlinger
CLASS ACTION

PRELIMINARY INJUNCTION

On the _____ day of _________, 2011, came on for consideration the motion of Plaintiffs for a Preliminary Injunction in the above numbered case. It appears to the Court that the motion has merit and that members of the Plaintiff class will suffer immediate and irreparable injury, in that they will be deprived of the in-home services and supports that are necessary for them to continue to live in their own homes and communities, which is the most integrated setting appropriate for them; and the deprivation of these services will lead to a decline in their health, safety, or welfare, leading to their eventual placement in institutions.
It is therefore:

1 Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 164 of 166

ORDERED that Defendants, the Louisiana Department of Health and Hospitals Bruce Greenstein, Secretary of the Louisiana Department of Health and Hospitals, in his official capacity, are enjoined: 1. From reducing the LT-PCS services of class members, whose services have not yet been
reduced to the 32-hour maximum, below their current level; 2. To provide a process for class members to obtain LT-PCS or alternative home-based services
above the 32-hour cap, which shall include: (a) Providing LT-PCS or alternative home and community-based services in excess of 32
hours a week to individuals who need more than 32 hours to avoid a decline in health, safety, or welfare that will lead to the individual’s eventual placement in an institution; (b) Maintaining services at their current level until Defendants have acted on applications for LT-PCS or alternative home and community-based services in excess of 32 hours a week; (c) For class members whose services have already been reduced, who apply for services in excess of 32 hours a week, restoring services to their previous level until Defendants have acted on their applications; (d) Notifying persons who have been approved for less than 32 hours a week of LT-PCS of the availability of services in excess of 32 hours a week and affording them an opportunity to apply for them; and (e) If the person is found to be in need of services in excess of 32 hours a week, maintaining their LT-PCS hours at the level that they had prior to the application of the September 5, 2010 rule until they begin to such additional services.
2 Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 165 of 166

It further appears that to the Court that granting this relief will not cause substantial harm

or the public interest.

Plaintiffs are low-income persons for whom the posting of a bond would be a hardship.

Therefore, no security is required of them.

SIGNED the

day of

, 2011 in Baton Rouge, Louisiana.

_________________________________ UNITED STATES DISTRICT JUDGE

3 Case 3:10-cv-00635-JJB -SCR Document 75 09/28/11 Page 166 of 166

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

HELEN PITTS, KENNETH ROMAN,

) Civil Action No. 3:10-cv-00635-JJB-SCR

DENISE HODGES, and RICKII AINEY, on )

behalf of themselves and all others similarly )

situated,

)

Plaintiffs,

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

DEFENDANTS’ RESPONSE IN OPPOSITION TO THE MOTION FOR A PRELIMINARY INJUNCTION

Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232

Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 Philip Peisch ppeisch@cov.com Mass. Bar No. 675412 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291
Counsel for Defendants
Dated: October 28, 2011

Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 1 of 38

TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 1
II. RECENT DEVELOPMENTS ............................................................................................ 2
A. Replacement Of The EDA Waiver With The CC Waiver ...................................... 2
B. Creation Of A Process For Granting Expedited Waiver Slots................................ 3
C. Elimination Of The 90-Day Stay Rule For High Priority Offers To Nursing Home Residents ........................................................................................ 4
D. Over 1,500 LT-PCS Recipients Offered Slots In The EDA/CC Waiver ................ 5
E. A Decrease In Nursing Facility Admissions........................................................... 6
F. Informal Accommodations ..................................................................................... 6
III. ARGUMENT ...................................................................................................................... 7
A. The Plaintiffs Do Not Have Standing To Seek Relief For Speculative Harm To Unnamed Class Members........................................................................ 8
B. The Plaintiffs Have Not Satisfied The Preliminary Injunction Requirements. ....................................................................................................... 11
1. The Plaintiffs Have Not Met Their Burden Of Showing That They Are Likely To Succeed On The Merits..................................................... 12
a) Louisiana Has Already Taken Steps To Modify Its Programs To Accommodate The Needs Of Those Who Need More Than 32 Hours Of Paid LT-PCS Services. ................ 12
b) The Plaintiffs’ Request For Further Changes To The CC Waiver Offer Would Fundamentally Alter That Program. ........... 14
c) The Plaintiffs’ Alternative Request For Changes To LTPCS Would Fundamentally Alter That Program. ......................... 19
(1) Providing Additional LT-PCS Beyond The 32-Hour Cap Would Fundamentally Alter The Nature Of The Service. ...................................................................... 20
(2) Requiring An “Exceptions Mechanism” Would Significantly Increase The Costs Of The Program, Jeopardizing The Financial Stability Of The HCBS Program As A Whole........................................................ 22
- i -
Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 2 of 38

2. The Plaintiffs Have Not Established That They Would Suffer Irreparable Harm In The Absence Of A Preliminary Injunction. ............. 25 a) Defendants Have Voluntarily Removed Any Threat Of Irreparable Harm To Every Individual Brought To Their Attention By Class Counsel. ......................................................... 25 b) The Plaintiffs Have Not Demonstrated A Likelihood Of Irreparable Harm To The Broader LT-PCS Population................ 26
3. Balancing The Equities And Consideration Of The Public Interest Weigh Heavily Against Granting The Plaintiffs’ Request For A Preliminary Injunction .............................................................................. 27
IV. CONCLUSION................................................................................................................. 30
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TABLE OF AUTHORITIES

CASES

Page(s)

Alexander v. Choate, 369 U.S. 287 (1985).................................................................................................................22

Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005) ............................................................................................. 12-13

Cellnet Commc’ns Inc. v. FCC, 149 F.3d 429 (6th Cir. 1998) ...................................................................................................28

Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004) ....................................................................................................25

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)...................................................................................................................9

Fink v. N.Y.C. Dep’t of Personnel, 53 F.3d 565 (2d Cir. 1995).................................................................................................13, 14

Fink v. Richmond, 405 Fed. App’x 719 (4th Cir. Dec. 16, 2010) ..........................................................................13

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)...................................................................................................................9

Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996) .....................................................................................................14

Hodgers-Durgin v. De la Vin, 199 F.3d 1037 (9th Cir. 1999) (en banc) ...................................................................................9

Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007) ...................................................................................................14

Humana, Inc. v. Jacobson, 804 F.2d 1390 (5th Cir. 1984) .................................................................................................25

Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997) .....................................................................................................9

Kan. Health Care Ass’n, Inc. v. Kan. Dept. of Soc. and Rehab. Servs., 31 F.3d 1536 (10th Cir. 1994) .................................................................................................25

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La Union del Pueblo Entero v. FEMA, 608 F.3d 217 (5th Cir. 2010) ...................................................................................................12
Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192 (5th Cir. 2003) ...................................................................................................11
Lewis v. Casey, 518 U.S. 343 (1996).............................................................................................................9, 10
M.R. v. Dreyfus, 767 F. Supp. 2d 1149 (D. Wash. 2011) ...................................................................................30
Martinez v. Mathews, 544 F.2d 1233 (5th Cir. 1976) .................................................................................................11
Nichols v. Alcatel USA, Inc., 532 F.3d 364 (5th Cir. 2008) ...................................................................................................29
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................27
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (en banc) .................................................................................11
Olmstead v. L.C., 527 U.S. 581 (1999)......................................................................................................... passim
Pa. Protection & Advocacy, Inc. v. Pa. Dep’t of Public Welfare, 402 F.3d 374 (3d Cir. 2005).....................................................................................................14
Rizzo v. Goode, 423 U.S. 362 (1976).................................................................................................................11
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).....................................................................................................................9
Spiegel v. City of Houston, 636 F.2d 997 (5th Cir. 1981) ...................................................................................................27
Stanley v. Univ. of S. Cal., 13 F.3d 1313 (9th Cir. 1994) ...................................................................................................11
Stewart v. County of Brown, 86 F.3d 107 (7th Cir. 1996) .....................................................................................................13
Trepka v. Bd. of Educ. of the Cleveland City Sch. Dist., 28 Fed. App’x 455 (6th Cir. Jan. 24, 2002) .............................................................................14
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Warth v. Seldin, 422 U.S. 490 (1975)...................................................................................................................9
Weaver v. Henderson, 984 F.2d 11 (1st Cir. 1993) ......................................................................................................12
Winter v. NRDC, 555 U.S. 7 (2008).........................................................................................................11, 25, 28
STATUTES La. Rev. Stat. § 46:107...................................................................................................................17
REGULATIONS 37 La. Reg. 1490 (June 2011) ..........................................................................................................3 37 La. Reg. 2558 (Sept. 2011) .........................................................................................................3 42 C.F.R. § 431.200 et seq.............................................................................................................17 42 C.F.R. § 440.230 .......................................................................................................................20
OTHER AUTHORITIES Class Action Filed To Stop Cuts In Home Care, http://advocacyla.org/index.php/news-
reader/items/class-action-filed-to-stop-cuts-in-home-care.html (dated Sept. 22, 2010) ........27 DHH Changes EDA Waiver Rules, http://advocacyla.org/index.php/news-
reader/items/dhh-changes-eda-waiver-rules.html (dated July 5, 2011) ..................................27 Judge Rules: Pitts v. DHH Can Proceed, http://advocacyla.org/index.php/news-
reader/items/judge-rules-pitts-v-dhh-can-proceed.html (dated May 25, 2011) ......................27 La. Admin. Code tit. 50, § 8105 ......................................................................................................3 Seniors and People with Disabilities Avoid Institutionalization, Louisiana is First State in
the Country to Expand Eligibility for Home and Community Based Services, http://www.advocacyla.org/index.php/news-reader/items/seniors-and-people-withdisabilities-avoid-institutionalization.html (dated Aug. 10, 2011) .........................................12 Vernon L. Greene, Nursing Home Admission Risk and the Cost-Effectiveness of Community-Based Long-Term Care: A Framework Analysis, 22 Health Services Research 655 (Dec. 1987).................................................................................................. 24-25
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I. INTRODUCTION In August 2010, the Louisiana Department of Health and Hospitals (“DHH”)
promulgated a rule changing the way in which personal care services are allocated to Medicaideligible individuals in the State’s Long-Term Personal Care Services (“LT-PCS”) program. The change included a reduction in the maximum number of hours that the State would provide from 42 hours per week to 32 hours per week. Shortly thereafter, four individuals filed this lawsuit, alleging that the State’s reduction of the cap from 42 hour s per week would force them and thousands of others into nursing homes, thereby violating the Americans with Disabilities Act (ADA). Last May, the Court ruled that there was a genuine dispute of material fact as to whether the ADA required the State to make any changes to the LT-PCS program.
The timing and basis of the Plaintiffs’ Motion for a Preliminary Injunction is inexplicable and unjustified. The Plaintiffs do not seek to maintain the status quo, but to change it. More than a year has passed since the beginning of the litigation. Contrary to the Plaintiffs’ predictions in their complaint, the number of LT-PCS recipients transitioning to nursing homes has not increased—has, in fact, decreased—even though the State has now reduced services for nearly all of the beneficiaries, including thousands who were receiving more than 32 hours a year ago. Moreover, in response to the Court’s summary judgment ruling and questions at oral argument, the State promptly undertook several modifications to its home- and community-based services (“HCBS”) programs to accommodate individuals who believe they will need to move to a nursing home without more than 32 hour s of paid assistance. The Plaintiffs acknowledge that these steps have been positive. And when class counsel has informed Defendants that specific individuals require additional assistance—including every individual referenced in the Plaintiffs’ motion—Defendants have provided informal relief through individualized accommodations.
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Given that Defendants’ have made and may continue to make changes to their programs, their demonstrated willingness to accommodate individuals brought to their attention by class counsel, and the lack of evidence suggesting the 32-hour cap has led to an increase in nursing facility admissions, there is no n eed for judicial intervention prior to a decision on t he merits. Accordingly, the Court should deny the motion. II. RECENT DEVELOPMENTS
Defendants’ previous filings have described the full array of Louisiana’s HCBS programs, the substantial and growing financial commitment the State has made to those programs, DHH’s past success in serving more individuals in the community every year, and its ongoing efforts to reduce the nursing home population.1 Following the Court’s May order, DHH has made a number of modifications to these programs.
A. Replacement Of The EDA Waiver With The CC Waiver Louisiana recently replaced the Elderly & Disabled Adult (“EDA”) waiver with the more comprehensive Community Choices (“CC”) waiver. As previously explained, each beneficiary enrolled in the waiver receives an acuity-based “budget” of up to $40,046 per year, which he or she may allocate to an appropriate mix of services. Defs.’ Statement of Undisputed Facts (“SUF”), Doc. 11-1, at ¶¶ 54-55. In the EDA waiver, the beneficiary could use the budget to arrange for not only personal assistance services (which include both the personal care services at issue in this case and companion care services, id. ¶ 58), but also support coordination, transition intensive support coordination, environmental accessibility adaptation, transition services, and Adult Day Health Care services. Id. ¶ 57. Since the CC waiver replaced the EDA
1 See generally Memorandum in Support of Defendants’ Motion to Dismiss, Doc. 11-1, at 3-14; First Declaration of Hugh R. Eley, Doc. 11-2, at ¶¶ 7-43; Defendants’ Reply to Plaintiffs’ Opposition to the Motion for Summary Judgment, Doc. 39, at 3-11.
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program on October 1, 2011, be neficiaries have the additional options of physical therapy, occupational therapy, respiratory therapy, speech/language therapy, nursing services, home delivered meals, assistive devices and medical supplies, respite services (temporary support for informal caregivers), and non-medical transportation. Exhibit 1, Third Declaration of Hugh R. Eley ¶ 18. Because the CC waiver offers these additional services and allows beneficiaries to receive more personal care services than LT-PCS, the CC waiver will generally be the more attractive option for individuals with the most severe disabilities.2
B. Creation Of A Process For Granting Expedited Waiver Slots There are a limited number of CC waiver slots. Id. ¶ 22. The program is always near capacity, but turnover allows DHH to extend offers to individuals on the waiting list on a rolling basis. Offers are made in the order that individuals applied for the program, unless an individual falls within one of the designated “priority” groups. Id. ¶¶ 23-26. In June 2011, DHH issued an emergency rule that created a p rocess through which people who are receiving the maximum number of hours of LT-PCS (32 hours per week) can enroll in the waiver without delay if, but for the provision of additional services through the waiver, they would require admission to a nursing home. Id. ¶¶ 28-43.3 Under the rule, waiver slots are made available to qualified applicants on a n expedited basis “[n]otwithstanding the priority group provisions” for the waiver’s waiting list. Id. Att. B. This means that recipients of expedited waiver offers get access to CC services ahead of other individuals on the waiting list. See id. ¶¶ 28, 54.
2 In addition to expanding the array of services available through the waiver, DHH is requesting the addition of 500 new slots for the upcoming fiscal year. Third Eley Decl. ¶ 49-51. The final decision to fund the expansion will be made by the Governor’s Division of Administration and the legislature. 3 The rule is codified at La. Admin. Code tit. 50, § 8105(E). It was initially published at 37 La. Reg. 1490, 1491 (June 2011), and then republished without amendment at 37 La. Reg. 2558, 2559 (Sept. 2011). The latter version appears as Attachment B to the Third Declaration of Hugh R. Eley.
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Requests for an expedited waiver offer are made by phone or by referral to DHH staff. See id. ¶ 31. If the applicant meets the threshold criterion of having exhausted the available LTPCS resources, a Medical Certification Specialist from one of DHH’s Regional Offices schedules a “home visit” to evaluate whether the applicant will enter a nursing home without waiver services, whether alternative support is available from other formal or informal sources, and whether CC waiver services are appropriate for the individual under the circumstances. See id. ¶¶ 31-33. The Medical Certification Specialist’s findings are examined by the Service Review Panel (“SRP”), which decides whether to offer the applicant an expedited slot. Id. ¶ 34-35. DHH is currently able to act on a request within two weeks of receiving it. Id. ¶¶ 30, 59, 63. Individuals who are denied an expedited waiver offer can reapply if their circumstances change. Id. ¶ 37.
DHH has reserved 100 slots for these emergency placements. Id. ¶ 41. To date, it has received over 30 applications, and has extended offers to several people. Id. ¶¶ 38-40, 75-77.4
C. Elimination Of The 90-Day Stay Rule For High Priority Offers To Nursing Home Residents
In addition to the emergency slots reserved for individuals who have “maxed out” their LT-PCS services, DHH has revised the criteria for its “priority groups” for regular CC waiver slot offers. Individuals in the priority groups quickly receive waiver offers despite the waiting list. When the parties were before the Court in May, the priority groups were: (1) victims of abuse and neglect who would require institutionalization to prevent future abuse and neglect in the absence of access to the waiver; (2) individuals with Amyotrophic Lateral Sclerosis (ALS);
4 At least three other individuals who requested expedited waiver offers received offers through the regular process for offering slots. Third Eley Decl. ¶ 72. Two individuals were referred to the Office of Citizens with Developmental Disabilities for services through that office’s waiver programs. Id. ¶ 40. Several requests came from people who were not enrolled in LT-PCS at all or were not approved for 32 hours. Id. ¶ 39.
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(3) individuals residing in nursing facilities for at least 90 days. SUF ¶¶ 62, 74-78. DHH has now removed the 90-day stay requirement for the third group. On June 20, 2011, t he rules were modified to allow any individual “approved for a stay of more than 90 days” to receive a highpriority CC waiver offer. Third Eley Decl. Att. B. As a result, DHH can now extend a waiver offer to an individual promptly upon his or her admission to a nursing home, without the person staying there for 90 days. Id. ¶ 44-48. DHH determined that individuals who are not “approved for a stay of more than 90 da ys” are typically admitted to address short-term needs such as rehabilitation after a hospital stay and do not require CC waiver services to leave the nursing facility. Id. ¶ 45.
D. Over 1,500 LT-PCS Recipients Offered Slots In The EDA/CC Waiver As Defendants have previously informed the Court, as part of the changes to the LT-PCS program, DHH eliminated the rule that put LT-PCS recipients at the bottom of the waiting list for waiver services. SUF ¶¶ 68-71. Prior to implementation of the 32-hour cap, DHH placed a lower priority on pr oviding waiver services to individuals who were already receiving some personal care services than those who were receiving none. With the implementation of the cap, DHH recognized that LT-PCS recipients could benefit from the additional services available through the waiver, and it therefore moved them out of the “lowest priority” category. As a result of the new policy, about 1,500 LT-PCS recipients have been offered slots in the waiver, including over 600 who previously received more than 32 hour s per week. Third Eley Decl. ¶¶ 27, 74. Of those, two of the four original named plaintiffs—Helen Pitts and Denise Hodges— and over 300 other people who had been receiving over 32 hours of LT-PCS now receive CC waiver services instead. Id. ¶¶ 73-74.
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E. A Decrease In Nursing Facility Admissions On September 5, 2010, DHH began applying the 32-hour cap to current LT-PCS recipients on a rolling basis after their next annual reassessment and to new recipients when they enrolled in the program. At the time, about 3,900 individuals were approved to receive more than 32 hours of LT-PCS per week. Id. ¶ 5. As of October 1, 2011, a bout 2,500 of those individuals had been reassessed for 32 hour s or less; about 375 ha ve not yet been reassessed; and about 1,000 no longer receive LT-PCS. Id. ¶¶ 6-8. The number of LT-PCS recipients transitioning into nursing homes has not increased since DHH began applying the 32-hour cap. Id. ¶¶ 4-12. In fact, data for the first three quarters since the 32-hour cap took effect show that transitions to nursing homes are lower than they were in the quarter before the cap took effect:

Quarter

LT-PCS Population at Start of Quarter

July-Sept. 2010 Oct.-Dec. 2010 Jan.-Mar. 2011 Apr.-June 2011 July-Sept. 2011

12,124 12,227 12,668 12,923 13,325

Number Transitioning
to NFs
347 270 280 292 n/a

Percent Transitioning
to NFs
2.86% 2.21% 2.21% 2.23%
n/a

Number Reduced from Above 32 by Start of Quarter
0 19 250 (approx.) 785 (approx.) 1,530 (approx.)

Third Eley Decl. ¶¶ 9-11 & Att. A. Thus, while the size of the LT-PCS population has increased substantially since September 2010, id. ¶¶ 14-15, both the percentage and the absolute number of transitions into nursing homes dropped. The State’s preliminary data for the third quarter of 2011 suggest the downward trend in nursing home transitions will continue to hold steady. Id. ¶ 12.
F. Informal Accommodations From the time the lawsuit was filed, class counsel have brought about 20 individuals to the attention of DHH who they allege need in excess of 32 hours of care. Id. ¶ 71. Defendants

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have voluntarily agreed to keep in place existing plans of care for each of these individuals unless the commencement of waiver services made an extension unnecessary. Id. ¶ 70. Defendants have already agreed to extend or restore the previous level of LT-PCS for all of the individuals mentioned in the Plaintiffs’ motion as well as for several individuals who are not, and Defendants are prepared within reasonable limits to make similar accommodations for other putative class members identified by the Plaintiffs. Id. III. ARGUMENT
The context surrounding the Plaintiffs’ request for a preliminary injunction makes their motion highly unusual. The Plaintiffs did not see fit to move for preliminary relief until a year into the litigation, four months after the Court’s summary judgment ruling, and after DHH had applied the challenged 32-hour cap to nearly everyone in the LT-PCS program. The Plaintiffs do not contend that any recent action by DHH warrants the extraordinary relief they seek. To the contrary, after oral argument in April, Defendants began taking significant steps to make additional HCBS available to LT-PCS recipients. DHH created a process for granting expedited access to CC waiver services for LT-PCS recipients who believe they need additional HCBS to avoid institutionalization. And DHH revised its rules to eliminate the wait for CC waiver slots for someone who does enter a nursing facility. The Plaintiffs concede that the amendment of the CC waiver rules “clearly represents a step in the right direction,” Pls.’ Mem. of Law in Support of Motion for a Prelim. Injunct. (Pls.’ Mem.), Doc. 73-2, at 7, and they acknowledge that Defendants have also accommodated individuals brought to their attention by class counsel. Meanwhile, the passage of time has revealed no increase in the number of LT-PCS recipients transitioning to nursing facilities. The Plaintiffs’ request for extraordinary relief directing DHH to make further changes to its HCBS programs thus comes despite the events of the last year— not because of them.
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The Plaintiffs’ motion asks the Court to find that they have a substantial likelihood of prevailing on the merits, even though last spring the Court ruled that there was a genuine dispute of material fact as to whether the ADA required the State to make any changes to the LT-PCS program, and the development of the facts to date does not support the allegations and predictions in the Complaint. The requested relief is based entirely on speculative harm to unnamed and unidentified class members. There is no basis or need for extraordinary judicial action at this stage of the litigation. The Court should deny the motion for a preliminary injunction and reserve judgment on t he merits until the parties are able to fully develop the record and the Court can make a reasoned decision on all of the facts.
A. The Plaintiffs Do Not Have Standing To Seek Relief For Speculative Harm To Unnamed Class Members.
The class cannot properly seek the proposed changes to how DHH awards expedited CC waiver slots because they have not shown that any of the named plaintiffs are harmed by the alleged deficiencies in DHH’s policies. The plaintiffs identify four groups of “class members” who allegedly remain at risk of institutionalization:
(1) Individuals who request expedited waiver services after the 100 s lots currently allocated to expedited waiver offerees are filled;
(2) Individuals who have been approved for fewer than 32 hours per week of LT-PCS; (3) Individuals “who are not able to remain in the community without deterioration while
their applications for emergency [CC] slots are pending”; and (4) Individuals who will be denied an expedited CC waiver slot because their risk of
eventual institutionalization is not sufficiently immediate. Id. at 9. The named plaintiffs cannot show that they are personally harmed by the rules governing expedited CC waiver slots, nor have they attempted to. As a result, the Plaintiffs lack standing to seek relief on behalf of these four groups, and the Court may not properly grant the relief they request.
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Named plaintiffs “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Warth v. Seldin, 422 U .S. 490, 502 (1975); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) (quoting id.). And they “must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 ( 2000); DaimlerChrysler Corp. v. Cuno, 547 U .S. 332, 352 (2006) (quoting id.); see also Hodgers-Durgin v. De la Vin, 199 F.3d 1037, 1044 -45 (9th Cir. 1999) (en banc) (“Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief.”); Johnson v. Rodriguez, 110 F.3d 299, 304 n.8 (5th Cir. 1997) (“[A]s a general rule class injuries attributable to members of a class but not sustained by a named class representative cannot be remedied in the class action lawsuit.”).
In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court applied this principle to hold that injunctive relief must be tailored to redress the injuries of the named plaintiffs rather than the injuries of unnamed class members. In that case, a certified class of all adult prisoners incarcerated by the Arizona Department of Corrections claimed that they had been denied their constitutional right to access the courts. See id. at 346. The district court issued an injunction requiring prison officials to make various changes to their policies regarding access to their law libraries, including changes to ensure that lockdown prisoners had regular access to the libraries and that illiterate and non-English-speaking inmates had sufficient direct assistance to make their time in the library effective. See id. at 347-48. The Supreme Court held that this injunction was overbroad because the only injury demonstrated by a named plaintiff resulted from the prison’s failure to provide special services to inmates who were illiterate. See id. at 357. Insofar as there were inadequacies in the prison’s policies regarding services “required by non-English speakers,
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by prisoners in lockdown, and by the inmate population at large,” “they have not been found to have harmed any plaintiff in this lawsuit, and hence were not the proper object of this District Court’s remediation.” Id. at 358. The illiterate named plaintiff, the Court explained, “lacked standing to complain of injuries to non-English speakers and lockdown prisoners.” Id. at 358 n.6.
The named plaintiffs in this case face the same difficulty as the named plaintiff in Lewis v. Casey. None of them purports to belong to any of the four groups they believe remain at risk of institutionalization, and none of them has shown that they have been personally harmed by the alleged defects in how the State allocates expedited CC waiver offers. Their memorandum in support of their motion barely mentions two of the three named plaintiffs—Kenneth Roman and Rickii Ainey—and they have not shown that the third—Elizabeth Foster—falls within any of the groups the Plaintiffs claim remain at risk of institutionalization.
Even if the named plaintiffs have standing to challenge the 32-hour cap on LT-PCS, that does not mean that they have standing to seek broad changes to the rules governing expedited slots in the CC waiver. Again, Lewis v. Casey is instructive: “The remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” 518 U.S. at 357. “The actual-injury requirement would hardly serve the purpose . . . of preventing courts from undertaking tasks assigned to the political branches . . . if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration.” Id.
Because the Plaintiffs have not shown that any of the named plaintiffs has been or will imminently be harmed by the rules governing the allocation of CC waiver slots, the class lacks standing to seek changes to the waiver process.
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B. The Plaintiffs Have Not Satisfied The Preliminary Injunction Requirements. “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). The Fifth Circuit “ha[s] cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements.” Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F .3d 192, 196 (5th Cir. 2003) (emphasis added; internal quotation marks omitted). Preliminary relief of the kind sought by the Plaintiffs here—a mandatory preliminary injunction that goes beyond maintaining the status quo—is “particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.” Martinez v. Mathews, 544 F.2d 1233, 1243 ( 5th Cir. 1976); accord O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F .3d 973, 975 (10th Cir. 2004) (en banc) (motions for a mandatory preliminary injunction or a preliminary injunction that alters the status quo “must be more closely scrutinized to assure that the exigencies of the case support the granting of [such] a remedy . . . .”); Stanley v. Univ. of S. C al., 13 F.3d 1313, 1320 ( 9th Cir. 1994). Furthermore, when plaintiffs seek injunctive relief against state agencies, federal courts must give “appropriate consideration . . . to principles of federalism in determining the availability and scope of equitable relief.” Rizzo v. Goode, 423 U.S. 362, 379 (1976); cf. Olmstead v. L.C., 527 U.S. 581, 610 (1999) (Kennedy, J., concurring, joined by Breyer, J.) (noting the “federalism costs inherent in referring state decisions regarding the administration of treatment programs and the allocation of resources to the reviewing authority of the federal courts”).
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1. The Plaintiffs Have Not Met Their Burden Of Showing That They Are Likely To Succeed On The Merits.
“The sine qua non of [the preliminary-injunction analysis] is whether the plaintiffs are likely to succeed on t he merits.” Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). If the Plaintiffs cannot show a “substantial likelihood of success on t he merits, [the Court] need not address” the remaining factors in order to deny them preliminary relief. La Union del Pueblo Entero v. FEMA, 608 F .3d 217, 225 ( 5th Cir. 2010). The Plaintiffs cannot make the required showing here because (a) Louisiana has already taken steps to reasonably accommodate individuals who require more than 32 hour s per week of personal care services and (b) the Plaintiffs’ request for additional accommodations would fundamentally alter the State’s programs.
a) Louisiana Has Already Taken Steps To Modify Its Programs To Accommodate The Needs Of Those Who Need More Than 32 Hours Of Paid LT-PCS Services.
Louisiana is committed to dedicating available resources to provide individuals with disabilities a full array of quality, long-term care services that will enable them to live in the settings of their choice, and it has a comprehensive, effectively working plan to provide those services in the community when appropriate. The State has demonstrated that commitment not only through the dramatic expansion of its HCBS programs over the last several years, 5 but also through the steps it h as taken since the Plaintiffs filed this lawsuit to accommodate LT-PCS recipients who require assistance for more than 32 hours per week in order to avoid unnecessary institutionalization. Cf. Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 620 (9th Cir. 2005)
5 The Advocacy Center has recognized DHH’s efforts to expand HCBS services in the state. See Seniors and People with Disabilities Avoid Institutionalization, Louisiana is First State in the Country to Expand Eligibility for Home and Community Based Services, http://www.advocacyla.org/index.php/news-reader/items/seniors-and-people-withdisabilities-avoid-institutionalization.html (dated Aug. 10, 2011) (last visited Oct. 27, 2011).
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(“So long as states are genuinely and effectively in the process of deinstitutionalizing disabled persons ‘with an even hand,’ [the courts] will not interfere.” (quoting Olmstead, 527 U.S. at 605 (plurality opinion))).
The modifications already made by the State are in fact more generous than those originally proposed by the Plaintiffs. The Plaintiffs initially asked the State to restore the previous level of personal assistance they received through the LT-PCS program. Instead, the State has decided to allow LT-PCS recipients who would otherwise require institutionalization to move to the front of the waiting list for CC waiver services. The CC waiver allows recipients to receive more hours of personal assistance than the Plaintiffs sought in their Complaint plus additional services that are not available in the LT-PCS program. Third Eley Decl. ¶ 18. DHH expects that this broader array of services will generally be more effective in keeping individuals out of nursing homes than adding a few more hours of LT-PCS would be. Id.
Additionally, the absence of any waiting list for individuals in nursing homes to enroll in the CC waiver demonstrates the effectiveness of Louisiana’s HCBS programs. The Olmstead Court recognized that a State could be fully compliant with the ADA even if there was a waiting list for people in nursing homes to obtain HCBS waiver services. 527 U.S. at 605-06. In Louisiana, nursing home residents do not need to wait for a waiver offer. The Plaintiffs recognize that allowing LT-PCS recipients to access expedited waiver slots “clearly represents a step in the right direction,” Pls.’ Mem. at 7, but they maintain that the State’s HCBS programs still are not quite good enough. But the ADA does not require the State’s modifications to be perfect.6 Nor does it r equire the State to provide precisely the modifications the Plaintiffs
6 See Fink v. N.Y.C. Dep’t of Personnel, 53 F.3d 565, 567 (2d Cir. 1995) (“[The RA] does not require the perfect elimination of all disadvantage that may flow from the disability . . . .”); see also Stewart v. County of Brown, 86 F.3d 107, 112 (7th Cir. 1996); Fink v. Richmond, 405 Fed. App’x 719, 723 (4th Cir. Dec. 16, 2010) (unpublished).
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request.7 Rather, the State must be given some “leeway” in how it administers its HCBS
programs. Olmstead, 527 U.S. at 605; see also Pa. Protection & Advocacy, Inc. v. Pa. Dep’t of
Public Welfare, 402 F .3d 374, 381 -82 (3d Cir. 2005) (“When an agency has implemented a
sufficient compliance plan (i.e., when it h as demonstrated a commitment to comply with the
ADA and RA), [a federal court] must be wary of judicial mandates that could thwart or
undermine the agency’s authority to carry out that plan as it sees fit.”).
b) The Plaintiffs’ Request For Further Changes To The CC Waiver Offer Would Fundamentally Alter That Program.
The Plaintiffs propose a list of changes to how DHH operates the new emergency slots in
the CC waiver program. Pls.’ Mem. at 28-29. Their proposed changes include:
(1) Offering expedited CC waiver slots to any “individuals who need more than 32 hours per week of LT-PCS to avoid a decline in health, safety, or welfare that will lead to the individual’s eventual, though perhaps not immediate, placement in an institution”;
(2) Allowing individuals whom DHH has approved for fewer than 32 hours per week to request expedited CC waiver slots without first asking for more LT-PCS;
(3) For anyone who was receiving more than 32 hours of LT-PCS on September 5, 2010, and who requests an expedited CC waiver slot, restoring or maintaining their previous level of LT-PCS between the time of their request and DHH’s decision, and between the offer and the commencement of services.8
As set forth below, the Plaintiffs’ requests would fundamentally re-align DHH’s policy
determinations of how best to best use a limited resource (EDA/CC waiver slots) to serve
7 See Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007) (Title I of the ADA does not require the plaintiff’s “most preferred alternative” or “an accommodation that is ideal from the [plaintiff’s] perspective, only an accommodation that is reasonable”); see also Fink v. N.Y.C., 53 F.3d at 567; Trepka v. Bd. of Educ. of the Cleveland City Sch. Dist., 28 Fed. App’x 455, 460 (6th Cir. Jan. 24, 2002) (unpublished); Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). 8 Although the Plaintiffs suggest that 100 CC waiver slots may be insufficient to accommodate the entire class, Pls.’ Mem. at 9, they have not asked the Court to void the current 100-slot cap. Pls.’ Mem. at 28-29 & Proposed Order. In any event, that relief would be premature. Most of the slots remain unfilled, and DHH will consider whether to add more if and when the time comes. See Third Eley Decl. ¶ 41.
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individuals at risk of institutionalization, and would pose logistical and practical difficulties that take the Plaintiffs’ demands well beyond requests for “reasonable accommodation.”
(1) DHH cannot, without fundamentally altering the CC waiver, offer expedited slots to “individuals who need more than 32 hour s per week of LT-PCS to avoid a decline in health, safety, or welfare that will lead to the individual’s eventual . . . placement in an institution.”
First, a standard that requires the State to provide each LT-PCS recipient a l evel of benefits sufficient “to avoid a decline in health, safety, or welfare” would be impossible to administer in a program that serves primarily the elderly and individuals with degenerative disabilities and diseases. See, e.g., Decl. of Lisa Richards, Doc. 73-3, at 113 ( explaining that Elizabeth Foster’s “dementia is gradually progressing, which will lead to a g reater and greater need for assistance”). Nor are Defendants aware of any sound diagnostic tool that could be used to assess whether someone requires a specified number of hours of paid assistance in order “to avoid a decline in health, safety or welfare” that would result in “eventual” admission to a nursing facility. As a result, the availability of the EDA/CC waiver would be entirely subjective.
Second, because the Plaintiffs’ “eventuality” standard sets such a l ow bar, its practical effect would be to eliminate DHH’s ability to give expedited offers to those LT-PCS recipients who require them most immediately while displacing other groups on the waiting list, including those in the high priority groups.
Even though the number of waiver slots is fixed, the turnover in the waiver population currently allows DHH to offer slots to individuals in the high priority groups (those subject to abuse and neglect, those with ALS, and those already in nursing homes) with virtually no wait. There is a s ignificant waiting list for LT-PCS recipients and individuals without any access to HCBS, but the list does move and DHH is able to make hundreds of new offers every quarter. In
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the last year, over 1,500 LT-PCS recipients have been offered EDA/CC waiver slots. Because individuals who receive expedited waiver slots skip ahead of all of the people just mentioned, expanding the category of individuals eligible for expedited slots would very likely prevent DHH from promptly offering waiver services to everyone in the high-priority groups and would prolong the already-lengthy waits faced by others on the waiting list.
Olmstead prohibits these unfair results. Under Olmstead, the ADA does not require States to modify their programs to accommodate individuals—even those who are currently institutionalized—when, “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 604. If the ADA does not allow a court to order a State to move an institutionalized plaintiff ahead of others on the waiting list, it c ertainly does not allow a court to order the State to move community-based plaintiffs ahead of others on the waiting list. The Plaintiffs’ requested modification is therefore exactly the kind that Olmstead says would be a fundamental alteration.9
(2) The Plaintiffs also seek an order directing DHH to allow individuals who have been approved for fewer than 32 hour s of LT-PCS per week to obtain expedited CC waiver slots. These individuals are not class members10 and the named plaintiffs lack standing to seek this
9 The Plaintiffs’ challenge to the use of the word “immediate” in the protocol for processing expedited waiver requests rests on an over-reading of that document. T he word “immediate” does not appear in the rule or the guidance that is actually applied by the Service Review Panel. T he word was used to describe the kind of information a Medical Certification Specialist should look for during a home visit. DHH is reissuing the protocol to clarify that the Medical Certification Specialist need not limit the information collected to evidence demonstrating a need for “immediate” institutional placement. See Third Eley Decl. Att. C. 10 Individuals who are approved for fewer than 32 hours receive that amount of LT-PCS not because of the 32-hour cap but because of DHH’s methodology for allocating services within the permissible range—a methodology the Plaintiffs are “not challenging” in this case. Pls. Opp’n to the Mot. for S.J., Doc. 38, at 19 n.105
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relief. In any event, granting the Plaintiffs’ request would fundamentally alter both the LT-PCS program and the CC waiver program.
First, allowing individuals who are allocated fewer than 32 hours of LT-PCS to request an expedited CC waiver slot would fundamentally alter the LT-PCS program by allowing individuals to circumvent the existing appeals process—a process required by both state statute and federal Medicaid regulations. See 42 C.F.R. § 431.200 et seq.; La. Rev. Stat. § 46:107. That process gives individuals approved for less than the program maximum the option of appealing DHH’s decision and receiving up t o 32 hours of LT-PCS. Third Eley Decl. ¶ 57-58. If they remain approved for fewer than 32 hours it is because they have decided not to appeal or because they were unable to demonstrate an error in DHH’s determination of their acuity level. Id. ¶ 58.11
The Plaintiffs effectively ask the Court to wipe out the LT-PCS appeals process and allow anyone who thinks they need more help to request an expedited CC waiver offer instead of more LT-PCS. The Plaintiffs cite no legal authority to support their argument that individuals should be allowed to circumvent the agency’s established and well-functioning procedures.
Second, well over 12,000 LT-PCS recipients are currently approved for less than 32 hours of LT-PCS. Allowing them to apply for expedited waiver slots would likely increase the number of requests to a level where DHH could not process them in a timely fashion. Id. ¶¶ 5961.
With the number of requests it receives now, DHH can process and grant a request within two weeks. Id. ¶ 30. This quick turnaround would be impossible if the agency were inundated with requests from people receiving less than 32 hours. As a result, those who are eligible under the current rules would face new delays in the processing of their requests. Id. ¶ 59.
11 If the Plaintiffs are correct that some individuals choose not to file an appeal because they view the process as too inconvenient or not worth their time, this suggests that their needs are not as great as the Plaintiffs paint them.
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Granting the Plaintiffs’ request would also divert agency resources away from other important matters. Id. ¶ 60. Each home visit with an applicant for an expedited slot requires approximately three hours of the Medical Certification Specialist’s time. Id. That is time not spent on hi s or her other responsibilities: implementing the new CC waiver, reviewing critical incidents among the waiver population, assisting waiver recipients and applicants, and providing extra assistance to those transitioning out of nursing facilities. Id. The current demands of the process for granting expedited waiver slots are burdensome but manageable. Id. ¶ 59. The additional burden of processing requests from people who have been approved for less than 32 hours per week would make it impossible for DHH staff to carry out their other duties. Id. ¶¶ 5961. Because DHH has determined that the people approved for fewer than 32 hour s are more independent than those approved for 32 hours, the percentage of their requests that are actually be granted would likely be relatively small, and the costs associated with processing their requests would well outweigh the benefits. See id. ¶ 58.
Third, for the reasons discussed above in connection with the Plaintiffs’ “eventual” institutionalization standard, offering an expedited CC waiver slot to individuals who have not yet been approved for 32 hours of LT-PCS would cause additional delays for other people on the waiting list, including people who currently receive no state-funded HCBS at all. Id. ¶ 54.
(3) Finally, the Plaintiffs ask that, for anyone who was receiving more than 32 hours of LT-PCS on S eptember 5, 2010, D HH be required to restore their previous level of services during the periods (1) between their request for an expedited waiver offer and the Service Review Panel’s determination about whether to grant the request and (2) when the request is granted, between the panel’s decision and the commencement of waiver services. Again, the ADA does not require DHH to alter its program as the Plaintiffs propose.
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The time between a request for expedited CC waiver services and the commencement of those services is already short: about six weeks. See id. ¶¶ 30, 36, 59, 63. Moreover, because of the administrative realities of operating a program with over 13,000 beneficiaries, processing a DHH directive to override the 32-hour cap for an individual takes around a week, and sometimes more. Id. ¶ 64. Consequently, the restored LT-PCS level would still be unavailable for the individual for a good portion of the period that he or she is waiting for CC services to begin. In the event that DHH becomes aware of a s ituation where an increase in hours is necessary to avoid institutionalization during that brief period, it r etains the discretion to make accommodations as appropriate. There is no n eed for an administratively burdensome, blanket rule of the type the Plaintiffs’ propose.
c) The Plaintiffs’ Alternative Request For Changes To LT-PCS Would Fundamentally Alter That Program.
In the alternative to their request for changes to the CC waiver, the Plaintiffs ask for a preliminary injunction requiring the State to “continue the [LT-PCS] services of class members whose services have not yet been reduced to the 32-hour maximum at the current level, and to provide a m echanism for class members whose services have already been reduced to obtain [LT-PCS] services in excess of the 32-hour cap.” Pls.’ Mot. at 28. Because DHH has already reassessed almost everyone in the LT-PCS program using the new rule, Third Eley Decl. ¶¶ 6-7, maintaining services at their current level is an option only for a negligible portion of the class.
The alternative relief requested is completely unjustified and unnecessary in light of Defendants’ decision to offer expedited access to the CC waiver for individuals who believe they need more than the 32 hours of paid assistance available through the LT-PCS program in order to avoid institutionalization. The Plaintiffs are not specific about what kind of “mechanism” the State must create, and Defendants cannot conceive of any “mechanism” for identifying class
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members and determining how many hours to provide each that would not fundamentally alter the LT-PCS program or impose an undue burden on DHH. But because the Plaintiffs’ proposal is so lacking in detail, neither Defendants nor the Court can properly assess the financial and administrative burdens associated with creating and implementing it. In any event, the Plaintiffs are not substantially likely to obtain a judgment ordering DHH to create a “mechanism” for LTPCS recipients to exceed the program’s 32-hour cap.
(1) Providing Additional LT-PCS Beyond The 32-Hour Cap Would Fundamentally Alter The Nature Of The Service.
First, allowing class members to receive services above the 32-hour cap would fundamentally alter the LT-PCS program because it would violate Louisiana’s state Medicaid plan. The state plan provides that the State will furnish up to 32 hour s of paid personal care services to individuals who meet the State’s criteria. See id. ¶ 67 & Att. E. It is a fundamental tenet of Medicaid law that the federal government will only provide federal financial participation for services covered by the state plan. Therefore, if the State were to provide additional hours beyond those set forth in its state plan, the State would have to pay for those additional services with 100% state dollars. (Currently, the federal government reimburses the State in excess of 70% for its Medicaid expenditures.) By contrast, if the State provides additional services through the CC waiver (as it is doing), its expenditures are federally reimbursed. The Plaintiffs’ proposal to provide LT-PCS beyond what is approved in the state plan would be fiscally disastrous for the State. See id.12
12 It is also important to note that the very fact that the Centers for Medicare & Medicaid Services (“CMS”) approved this state plan amendment implicitly reflects a judgment that the service, with the 32-hour cap, is “sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b).
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Second, the Plaintiffs’ proposed relief would fundamentally alter the nature of the benefit provided in the LT-PCS program. Louisiana does not allocate services in the LT-PCS program based on how many hours of assistance an individual requires to avoid entering a nursing home, to avoid “risk of institutionalization,” or even more vaguely, “to avoid a decline in health, safety, or welfare that will lead to the individual’s eventual . . . placement in an institution.” Pls.’ Mem. at 29. The State provides a limited benefit of 18 to 32 hours of personal care services. Third Eley Decl. ¶¶ 57, 69. The agency relies on an evidence-based uniform assessment tool not to determine how many hours of assistance each recipient “needs” but the recipient’s demonstrated independence in performing ADLs as compared with others in the LT-PCS program. Id. ¶¶ 66, 69. The agency then allocates service hours based on t he recipient’s relative acuity and the funding available. Id. This means that providing more services to individuals at one part of the acuity spectrum leaves others with less. Id. ¶ 69.
DHH adopted this resource-allocation methodology in 2009 after evaluating and experimenting with a number of different alternatives and consulting with experts in the field. Id. Based on t he State’s experience with this methodology so far, DHH believes it produces an allocation of LT-PCS hours that is more fair and efficient than the agency’s previous approach and gives individual beneficiaries more flexibility in how they utilize the services available. Id. The Plaintiffs’ preferred methodology for allocating service hours would be not only different but unworkable. Defendants are unaware of any established diagnostic tool for determining how many hours of state-funded assistance any particular individual “needs” to avoid a risk of institutionalization. Id. ¶ 47. This kind of prediction is difficult, if not impossible, because placement in an institution is often the result of the entirely unpredictable: a slip-and-fall or a difficult family decision about what is best for all involved. Id. No less significantly, providing
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individuals with higher levels of acuity with whatever services they need to remain in their homes would reduce the amount of funding DHH can devote to LT-PCS recipients with lower levels of acuity or to filling new waiver slots. See id. ¶¶ 68-69.
The Plaintiffs’ proposed redefinition of the benefit available through the LT-PCS program is thus exactly the kind of redefinition that the Supreme Court has held States are not required to undertake. In Alexander v. Choate, individuals with disabilities challenged a State’s “reduction from 20 to 14 in the number of inpatient hospital days per fiscal year that Tennessee Medicaid would pay hospitals on behalf of a Medicaid recipient.” 369 U.S. 287, 289 (1985). The Court held that the State was not required to change its rules to provide more than 14 d ays of coverage for individuals with disabilities even if they had a greater need. See id. at 302-03. As the Court explained, “Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs. Instead, the benefit provided through Medicaid is a particular package of health care services, such as 14 da ys of inpatient coverage.” Id. at 303. Nothing in federal disability discrimination law, the Court held, “require[d] the State to alter this definition of the benefit being offered simply to meet the reality that the handicapped have greater medical needs.” Id. For exactly the same reason, federal law does not require Louisiana to redefine the “particular package of health care services” available through the LT-PCS program to satisfy the amorphous objective of eliminating risk of institutionalization.
(2) Requiring An “Exceptions Mechanism” Would Significantly Increase The Costs Of The Program, Jeopardizing The Financial Stability Of The HCBS Program As A Whole.
Enrollment in the LT-PCS program grew by over 10% in the last year alone, thereby presenting significant fiscal challenges for the State. Without the cap, LT-PCS expenditures
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would be significantly greater, and the State would have been unable to accommodate the program’s dramatic enrollment growth. But the creation of an “exceptions mechanism” could erase all of those savings and more, especially as the Plaintiffs do not propose any limitation on the upper limit of hours that they are seeking (not even the 42 hour limit to which Plaintiffs’ counsel previously agreed as part of the Barthelemy settlement). See Third Eley Decl. ¶¶ 68-69.
While the State’s HCBS programs have continued to grow, there is no evidence that capping LT-PCS at 32 hours has led to an increase in nursing home utilization that might, as the Plaintiffs expected, increase total long-term care costs. See id. ¶¶ 4-16. Under Olmstead, the millions of dollars in new spending that would accompany the Plaintiffs’ proposed modification is sufficient to reject their claim, cf. 527 U.S. at 603-05, and the Court must give “appropriate deference to the program funding decisions of state policy makers.” Id. at 610 ( Kennedy, J., concurring, joined by Breyer, J.). “No State has unlimited resources, and each must make hard decisions on how much to allocate to treatment of diseases and disabilities.” Id. at 612 (Kennedy, J., concurring). The State’s decisions about how to allocate its limited resources may be “unfortunate” or even tragic. Id. “The judgment, however, is a political one and not within the reach of the [ADA].” Id. at 612.
The Plaintiffs do not squarely answer the State’s evidence, because their analysis of the costs and benefits of the 32-hour cap applies the wrong legal standard. They have focused solely on whether the average cost of treating a class member in the community is less than the average cost of treating her in a nursing home. Olmstead held that that analysis was incorrect. Like the Plaintiffs here, the district court in Olmstead had “compared the cost of caring for the plaintiffs in a community-based setting with the cost of caring for them in an institution. That simple comparison showed that community placements cost less than institutional confinements.” 527
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U.S. at 604; see also id. at 594-95. The district court held that this was enough for the plaintiffs to prevail, but the Supreme Court disagreed because “a comparison so simple overlooks costs the State cannot avoid.” See id. at 604-06 (plurality opinion); see also id. at 604 & n.15 (observing, for example, that a State may not be able to offset increased overall HCBS expenditures with the immediate closure of institutions); cf. id. at 607 (Stevens, J., concurring) (courts must consider “costs unrelated to the treatment of [the individual plaintiffs]”). Plaintiffs thus ask the Court to rest its decision on exactly the same calculus that the Supreme Court rejected in Olmstead. Courts must consider system-wide, not individual-specific, costs.
Even if the individual-specific analysis were appropriate, the Plaintiffs’ simplistic analysis is incomplete. The Plaintiffs argue that raising the cap on LT-PCS to 42 hour s is reasonable because the cost of providing the average beneficiary a full year of nursing facility services is less than the cost of providing the average beneficiary a f ull year of LT-PCS at 42 hours per week. That analysis is inadequate for at least two reasons. First, it overlooks that many LT-PCS recipients who are actually admitted to a nursing facility for a long-term stay will not remain institutionalized because they will receive a CC waiver slot. Second, the Plaintiffs’ comparison also fails to recognize that some people who are “at risk of institutionalization” with 32 hours of LT-PCS will never transition to a nursing facility, that some people who receive 42 hours of LT-PCS will still transition to a nursing facility, and that the State will need to pay for some amount of LT-PCS during the period(s) when the individual is not in a nursing facility. A more complete analysis would compare whether the total cost of the mix of LT-PCS and nursing facility services that an individual will receive over the course of her lifetime will be more or less if the cap on LT-PCS is 32 hours or 42 hours. See generally Vernon L. Greene, Nursing Home Admission Risk and the Cost-Effectiveness of Community-Based Long-Term Care: A Framework
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Analysis, 22 Health Services Research 655 (Dec. 1987). In any event, given that capping the LT-
PCS program at 32 hours has allowed the State to continue serving an increasing HCBS
population, the ADA provides no basis for reversing the State’s decision. For these reasons and more, the Plaintiffs are unlikely to succeed on the merits. 13
2. The Plaintiffs Have Not Established That They Would Suffer Irreparable Harm In The Absence Of A Preliminary Injunction.
The Plaintiffs must also “demonstrate that irreparable injury is likely in the absence of an
injunction.” Winter, 555 U.S. at 22 ( emphasis in original). Further, this likely injury must be
imminent. Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1984).
As discussed below, the Plaintiffs’ evidence does not demonstrate a likelihood of
irreparable harm in the absence of preliminary relief. And the year they waited before moving for
preliminary relief weighs against a finding in their favor. See, e.g., Charlesbank Equity Fund II
v. Blinds To Go, Inc., 370 F.3d 151, 163 (1st Cir. 2004); Kan. Health Care Ass’n, Inc. v. Kan.
Dept. of Soc. and Rehab. Servs., 31 F.3d 1536, 1543-44 (10th Cir. 1994).
a) Defendants Have Voluntarily Removed Any Threat Of Irreparable Harm To Every Individual Brought To Their Attention By Class Counsel.
DHH has already extended or restored the level of service that each of the named
plaintiffs was receiving before the 32-hour cap took effect. DHH has done the same for each of
the seven unnamed plaintiffs identified in the Plaintiffs’ motion and several other individuals the
Plaintiffs do not mention in their motion. Third Eley Decl. ¶ 70. These extensions will remain in
effect through at least February 29, at which time DHH will assess whether further extensions
13 In addition to the arguments set forth above, Defendants maintain that capping the LT-PCS program at 32 hours per week is not “discrimination” within the meaning of the ADA, even if some LT-PCS recipients are at risk of, or in fact require, institutionalization. See Defs.’ Mot. to Dismiss, Doc. 11; Defs.’ Reply to Pls.’ Opp’n to the Mot. for S.J., Doc. 39; Defs.’ Response to the Statement of Interest of the U.S., Doc. 48. Defendants have not repeated those arguments here in light of the Court’s denial of summary judgment in May. However, Defendants respectfully request that the Court reconsider that aspect of its decision.
- 25 Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 31 of 38

are appropriate for all or some of the individuals. Id. As a result, none of them currently face any threatened harm as a r esult of the 32-hour cap. DHH is inclined to offer similar extensions to other individuals whom class counsel bring to Defendants’ attention, provided that the number of requests remains reasonably small. Id.
Moreover, four of the unnamed individuals cited by the Plaintiffs as facing irreparable harm—I.M.L., V.U.S., S.M., and E.B.—have already received offers to enroll in the CC waiver. Id. ¶¶ 72, 75. Two received expedited offers under the June 2011 R ule; two received ordinary offers from the waiting list. Id. One of the named plaintiffs, Rickii Ainey, has likewise been offered an expedited slot. Id. ¶ 76.
b) The Plaintiffs Have Not Demonstrated A Likelihood Of Irreparable Harm To The Broader LT-PCS Population.
While the Plaintiffs cannot show a likelihood of irreparable harm to any of the individuals identified in their motion because of the extensions granted by Defendants, they suggest that “there is no reason to assume that all class members who need such extensions have contacted Plaintiffs’ counsel.” Pls. Mem. at 9-10. But the Plaintiffs’ speculation that a large group of unidentified beneficiaries will be irreparably harmed by the denial of their motion is belied by the absence of any noticeable increase in transitions from LT-PCS to nursing facilities during the year that DHH has been implementing the 32-hour cap. Third Eley Decl. ¶¶ 4-12.
The Plaintiffs’ inability, after a year of litigation, to identify more than a handful of individuals who they believe are at risk of institutionalization reinforces the statistical evidence. The Advocacy Center, whose lawyers serve as lead class counsel, has deep connections to the community of individuals with disabilities and is well known to individuals receiving LT-PCS. Many if not most recipients will contact the Advocacy Center if they are having issues with their
- 26 Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 32 of 38

Medicaid services. Id. ¶ 71. Moreover, the Advocacy Center has been soliciting class members for a year. Id. ¶ 71 & Atts. F-H.14
The availability of expedited CC waiver slots mitigates the risk that the Advocacy Center
has failed to identify some individuals who would be institutionalized without preliminary relief.
While DHH’s rules allow the agency to fill at most 100 waiver slots with expedited offers at any
given time, all but a handful remain available now. Id. ¶ 41. The current allotment is unlikely to
run out before the parties file dispositive motions this Spring, and DHH will consider revising its
rules to allow more expedited waiver offers if need be.
3. Balancing The Equities And Consideration Of The Public Interest Weigh Heavily Against Granting The Plaintiffs’ Request For A Preliminary Injunction
Even if the Plaintiffs could establish likelihood of success on the merits and irreparable
harm, the Court should deny the motion because they have failed to establish that the balance of
equities tips in their favor and the injunction is in the public interest. When the government is the
party the plaintiffs seek to enjoin, these two factors merge. See Nken v. Holder, 556 U .S. 418
(2009); see also Spiegel v. City of Houston, 636 F.2d 997, 1002 (5th Cir. 1981).
As set forth above and in the declaration of Hugh R. Eley, the preliminary injunction
requested by the Plaintiffs would have significant negative consequences for the State’s HCBS
program and its beneficiaries. See generally Third Eley Decl. ¶¶ 52-69. Assistant Secretary
Eley’s analysis of the programmatic impact of the Plaintiffs’ proposed injunction merit careful
14 See, e.g., DHH Changes EDA Waiver Rules, http://advocacyla.org/index.php/news-reader/items/dhh-changeseda-waiver-rules.html (dated July 5, 2011) (last visited Oct. 27, 2011) (“[If] you need more than 32 hours a week of LT-PCS to avoid having to go into a nursing facility, please contact [the Plaintiffs’ counsel] . . . .”); Judge Rules: Pitts v. DHH Can Proceed, http://advocacyla.org/index.php/news-reader/items/judge-rules-pitts-v-dhh-canproceed html (dated May 25, 2011) (last visited Oct. 27, 2011) (“If you are receiving or are about to receive LT-PCS services, and you need more than 32 hours of service to be able to avoid going into a nursing home, contact the Advocacy Center.”); Class Action Filed To Stop Cuts In Home Care, http://advocacyla.org/index.php/newsreader/items/class-action-filed-to-stop-cuts-in-home-care.html (dated Sept. 22, 2010) (last visited Oct. 27, 2011).
- 27 Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 33 of 38

attention and his conclusions warrant deference. Cf. Winter, 555 U.S. at 27 (reversing the entry of a preliminary injunction where the district court “failed properly to defer to senior Navy officers’ specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy’s SOCAL training exercises”); Cellnet Commc’ns Inc. v. FCC, 149 F.3d 429, 441 (6th Cir. 1998) (“[A]n agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise are entitled to particularly deferential review.”).
First, the Plaintiffs proposed changes to the CC waiver would negatively affect countless others seeking access to the same service, and would introduce significant administrative difficulties. Third Eley Decl. ¶¶ 52-64. Making expedited CC waiver offers to LT-PCS recipients approved for less than 32 hour s and LT-PCS recipients facing only “eventual” institutionalization would increase the time others wait for waiver offers and increase the time it takes DHH to process expedited waiver requests from those who are currently eligible. Id. ¶¶ 5354, 59-61. Given the minimal showing applicants would need to make under the Plaintiffs’ “eventuality” standard, the 100 e xpedited waiver slots currently available would quickly be filled, creating a b acklog for others and/or reducing the number of regular spot available to people who do not receive LT-PCS. Id. ¶ 54. Maintaining all service levels over 32 hour s, or restoring pre-cap service levels that were over 32 hour s, for individuals waiting to receive CC services through an expedited slot would be unlikely to prevent a significant number of people from entering nursing homes, and it would be unfeasible to try to change service levels for such a short period of time. Id. ¶¶ 36, 62-64.
Further, the problems that the Plaintiffs’ proposal would create for others on t he CC waiting list would be irreversible. DHH will not be able to revoke waiver offers made pursuant
- 28 Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 34 of 38

to the preliminary injunction in the event that Defendants ultimately prevail. The effects of the preliminary injunction would be felt long past the conclusion of the litigation.
Second, the equities and the public interest also counsel against granting the Plaintiffs’ broader request for a preliminary injunction requiring DHH to create a “mechanism” for awarding more than 32 hours of LT-PCS to class members. See id. ¶¶ 65-69. DHH set the 32hour cap in order to constrain the growing costs of LT-PCS in a way that would allow the State to continue providing assistance to a growing population. See id. The agency has determined that this cap strikes the right balance between the interests of different groups of elderly Medicaid beneficiaries and individuals with disabilities, id., and that conclusion warrants respect. Cf. Olmstead, 527 U.S. at 612 (Kennedy, J., concurring) (“No State has unlimited resources, and each must make hard decisions on how much to allocate to treatment of diseases and disabilities.”). The funding required to comply with a preliminary injunction would need to be drawn from the other programs that provide medical assistance to other beneficiaries. Third Eley Decl. ¶¶ 68-69. And the harm to the State’s pecuniary interests is exacerbated because the Plaintiffs request that the Rule 65(c) security requirement be waived. See Nichols v. Alcatel USA, Inc., 532 F.3d 364, 379 (5th Cir. 2008) (“Since the [plaintiffs] appear unable to meet the bond requirement of Rule 65(c), we hold that the damage the preliminary injunction might cause [the defendant] greatly outweighs any threatened injury to the Retirees.”).
The Plaintiffs’ proposed injunction is all the more burdensome to the extent that it would require DHH to establish a “mechanism” for determining which recipients should receive more than 32 hours. As described above, the LT-PCS program is not designed to provide a small group of individual recipients with an unlimited amount of personal care assistance, up to the amount necessary to maintain their current level of health. Third Eley Decl. ¶¶ 68-69. DHH’s
- 29 Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 35 of 38

comprehensive plan for providing HCBS calls for an LT-PCS program that provides a limited benefit to a larger population and other programs, including the CC waiver, that are more appropriate for those who are more dependent on others. By converting the LT-PCS program into one that provides whatever amount of services someone “needs,” the preliminary injunction would interfere substantially with how the State has decided to structure the package of services it provides.
The Court should therefore deny the Plaintiffs’ request for relief for the same reasons the court in M.R. v. Dreyfus, 767 F. Supp. 2d 1149, 1175 (D. Wash. 2011), declined to preliminarily enjoin Washington State’s reduction of its state plan personal care service:
[E]ven if a few of the plaintiffs ultimately require institutionalization as a result of the State’s reduction in services, the Court cannot conclude that the threat to these individuals outweighs the State’s interest in preserving the carefully orchestrated personal care services program that currently serves more than 45,000 i ndividuals. For the same reasons, the Court cannot conclude that the possible threat of institutionalization for a few personal care service beneficiaries outweighs 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. Id. Neither the public interest nor equity warrants a different decision here. IV. CONCLUSION For the foregoing reasons, the Court should deny the Plaintiffs’ motion.
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Dated: October 28, 2011

Respectfully submitted,
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232
Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 Philip Peisch ppeisch@cov.com Mass. Bar No. 675412 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291 Counsel for Defendants

- 31 Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 37 of 38

CERTIFICATE OF SERVICE I certify on t his 28th day of October, 2011, t hat a true and correct copy of the foregoing Defendants’ Response in Opposition to the Motion for a Preliminary Injunction was filed electronically using the CM/ECF system. Notice of this filing will be sent via operation of the Court’s electronic filing system to the following: Nell Hahn nhahn@advocacyla.org Stephen F. Gold stevegoldada@cs.com Bruce Vignery bvignery@aarp.org Kenneth Zeller kzeller@aarp.org Counsel for Plaintiffs
/s/ Matthew Berns Matthew Berns
Case 3:10-cv-00635-JJB -SCR Document 81 10/28/11 Page 38 of 38

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

KENNETH ROMAN, RICKII AINEY

) Civil Action No. 3:10-cv-00635-JJB-SCR

and ELIZABETH FOSTER, on

)

behalf of themselves and all others similarly )

situated,

)

Plaintiffs

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

ORDER GRANTING THE JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
AND TO REDEFINE THE CLASS

Before the Court is the Parties’ Joint Motion for Preliminary Approval of Class

Settlement and to Redefine the Class (Doc. 95). The Motion is GRANTED, and it is hereby

ORDERED that preliminary approval of the proposed Settlement Agreement

included as Exhibit 1 to the Parties’ Motion is GRANTED;

ORDERED that the definition of the class adopted by the Court on June 6, 2011

(doc. 58) is altered insofar as the Court now adopts the following definition of the class in lieu of

the definition contained in the Court’s June 6 Order:

All persons who were approved to receive more than 32 hours of services through Louisiana’s Long-Term Personal Case Services (LT-PCS) program as of September 5, 2010, and who are still approved to receive LT-PCS or who have a request for prior authorization pending or in process;

Case 3:10-cv-00635-JJB -SCR Document 96 01/13/12 Page 1 of 4

ORDERED that a hearing on f inal approval of the proposed Settlement Agreement is scheduled for Friday, February 17, 2012 at 8:45 a.m.; and
ORDERED that the Parties cause a Notice, substantially in the form attached to this Order, to be published once in each of the following newspapers—Baton Rouge Advocate; Lafayette Daily Advertiser; Lake Charles American Press; Alexandria Daily Town Talk; Monroe News Star; Shreveport Times; New Orleans Times-Picayune; and Houma Courier—on or before January 30, 2012.
Signed in Baton Rouge, Louisiana, on January 12, 2012.

JAMES J. BRADY, DISTRICT JUDGE MIDDLE DISTRICT OF LOUISIANA
Case 3:10-cv-00635-JJB -SCR Document 96 01/13/12 Page 2 of 4

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AGREEMENT
Please read this notice carefully. A settlement has been proposed in Pitts v. Greenstein, 10-cv-635, that affects some Louisiana residents who are receiving long-term personal care services (LT-PCS) through the Medicaid program.
Does this notice apply to you?
1. This settlement only applies to persons who were approved to receive more than 32 hours of services through Louisiana’s Long-Term Personal Case Services (LT-PCS) program as of September 5, 2010, and who are still approved to receive LT-PCS or who have a request for prior authorization pending or in process.
What is this lawsuit about?
2. This lawsuit challenges the reduction in maximum hours of services under Louisiana’s Long-Term Personal Care Services program, which provides services funded by Louisiana Medicaid to eligible individuals in their homes. It claims that this reduction could lead to people having to enter nursing facilities, because they are not able to receive enough care at home.
What are the key terms of the Settlement Agreement?
3. Under the Settlement Agreement, class members may apply for an expedited Community Choices Waiver slot. Class members who are not currently approved to receive at least 32 hours must request a slot before June 30, 2012 in order to be considered. To get an expedited offer, a class member must show that without the additional services the waiver provides, he or she will not be able maintain his or her mental or physical health and is at serious risk of having to go into a nursing home.
4. The parties have agreed to ask the Court to approve $250,000 as the award to class counsel for attorney’s fees and costs incurred for work on this case.
What can you do next?
5. If you agree with the Settlement Agreement, you do not have to do anything.
6. If you disagree with any part of the Settlement Agreement and you want to tell the judge, you have to do these things:
- You must write a letter to the judge. Include your name, address, phone number, and signature in the letter. On the first page of the letter write in large or underlined letters: “Civil Action No. 10-635: Objections to Settlement Agreement in Pitts v. Greenstein.” Mail your letter to:
Judge James J. Brady
Case 3:10-cv-00635-JJB -SCR Document 96 01/13/12 Page 3 of 4

U.S. District Court 777 Florida Street Baton Rouge LA 70801 - You must also mail copies of your letters to the lawyers for the plaintiffs and defendants at the following addresses: Advocacy Center 600 Jefferson St., Ste. 812 Lafayette, LA 70501 Kimberly Humbles Louisiana Department of Health and Hospitals P.O. Box 3836 Baton Rouge, LA 70821-3836 7. Your letter must be received no later than Monday, February 13, 2012. 8. The complete settlement proposal can be obtained by calling the Advocacy Center, 800 960 7705, or by writing the Advocacy Center at 8325 Oak Street, New Orleans, LA 70118. For a more detailed statement of the matters involved, reference is made to the pleadings, to the Settlement Agreement, and to other papers filed in this matter, all of which may be inspected at the Office of the Clerk of the United States District Court for the Middle District of Louisiana, U.S. District Court, 777 Florida Street, Baton Rouge LA 70801. You may also view the Settlement Agreement online at <the DHH website> and <the Advocacy Center website>.
When and where will the judge decide whether to approve the Settlement Agreement? Courtroom 1 Russell Long Federal Bldg. and U.S. Courthouse 777 Florida Street Baton Rouge, LA 70801 Date: Friday, February 17, 2012 Time: 8:45 a.m.
Case 3:10-cv-00635-JJB -SCR Document 96 01/13/12 Page 4 of 4

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

)

HELEN PITTS, KENNETH ROMAN,

) Civil Action No. 3:10-cv-00635-JJB-SCR

DENISE HODGES, and RICKII AINEY, on )

behalf of themselves and all others similarly )

situated,

)

Plaintiffs

) Judge James J. Brady

)

v.

)

) Magistrate Judge Stephen C. Riedlinger

BRUCE GREENSTEIN, in his official

)

capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

) CLASS ACTION

LOUISIANA DEPARTMENT OF HEALTH )

AND HOSPITALS,

)

Defendants.

)

)

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND TO REDEFINE THE CLASS AND INCORPORATED MEMORANDUM IN SUPPORT

Plaintiffs Rickii Ainey, Kenneth Roman, and Elizabeth Foster (“Plaintiffs”), on

behalf of themselves and the unnamed class members, and all Defendants in this action

(“Defendants”), have entered into a proposed settlement in the above-captioned class action

litigation. P ursuant to Federal Rule of Civil Procedure 23, t he Parties hereby move for

preliminary approval of the settlement of this action, approval of the notice plan, and the

redefinition of the class.

I. Preliminary Approval of the Settlement Agreement The Parties seek preliminary approval of their proposed Settlement Agreement, a

copy of which is being filed as Exhibit 1 to this motion. A brief outline of the most significant

terms of the agreement follows; the terms of the attached Settlement Agreement are controlling

1 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 1 of 8

in the event of any inconsistency and/or omission. The Parties share the view that the terms of the Settlement Agreement are “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2).
The Settlement Agreement calls for a redefinition of the class so that the class is defined as individuals who were approved for more than 32 hours of LT-PCS when Defendants began applying the 32-hour cap on S eptember 5, 2010, a nd who are either still approved to receive LT-PCS or have a request for prior authorization pending or in process. This issue is discussed in greater detail below. See Part III.
Under the Settlement Agreement, the Department of Health and Hospitals (“DHH”) will accept for review a request for an expedited Community Choice waiver slot from any member of the redefined class (hereinafter “class members”). DHH will grant requests for expedited waiver slots if class members show that they will have a decline in mental or physical health and are at serious risk of nursing facility placement in the absence of an expedited waiver offer. Certain class members (those who are not currently approved for exactly 32 hours of LTPCS a week) must request an expedited waiver slot by June 30, 2012, in order to have the request considered.
The Settlement Agreement describes how class members will be notified of the opportunity to request an expedited waiver slot, describes the standard DHH will apply in determining whether to grant a request, and states that DHH has discretion to provide individuals who request a slot with interim relief on a case-by-case basis. T he Settlement Agreement provides that any class member whose request is received before June 30, 2012 a nd is subsequently denied may administratively appeal the denial, the deadline for appeals, and the showing that the class member must make on appeal. U nder the Settlement Agreement, DHH
2 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 2 of 8

will provide periodic reports to Plaintiffs’ counsel about the sending of notices to class members, and the status and resolution of class members’ requests for expedited waiver slots.
The Settlement Agreement further provides that DHH will submit to the Centers for Medicare and Medicaid Services an amendment to increase the number of slots in the Community Choice waiver by 200, t o a total of 4,803. O nce approved, the new slots will initially be reserved exclusively for class members but will be added to the general pool of slots available to other individuals on the Community Choice waiver’s waiting list on December 31, 2012, if not sooner.
Relief is specified in the proposed Settlement Agreement for the named plaintiffs and for other individuals about whom evidence has already been presented in this case. The Settlement Agreement also provides for a payment of $250,000 in attorneys’ fees and costs and describes the circumstances in which Class Counsel may collect additional attorneys’ fees for obtaining enforcement of the Settlement Agreement.
The Settlement Agreement provides for this Court’s enforcement of the Agreement during a defined period and describes the preclusive effect of the Agreement. II. Notice to Class Members
Rule 23(e)(1) requires that the Court “direct notice in a reasonable manner to all class members who would be bound by the proposal.”
The Parties have agreed to cause the Notice—substantially in the form attached hereto as Exhibit 2—to be published in certain Louisiana newspapers no later than fifteen (15) days before the Final Approval Hearing. The Parties shall, at or before the Final Approval Hearing, file with the Court proof of publication of the Notice.
3 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 3 of 8

In addition to the foregoing, the Settlement Agreement provides that DHH will send a copy of Attachment B to the Settlement Agreement to all class members to whom DHH has not already mailed a copy of Attachment A to the Settlement Agreement.
III. Modification of the Class Definition Contingent upon t he Court’s preliminary approval of the proposed Settlement
Agreement, the Parties additionally request a modification of the class definition. A n order certifying a cl ass may be altered or amended before final judgment. See Fed. R. Civ. P. 23(c)(1)(C). “[T]his rule vests significant discretion in the district court,” Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 703 (5th Cir. 2010). “[A] district court is free to reconsider its class certification ruling as often as necessary before judgment,” McNamara v. Felderhof, 410 F.3d 277, 280 (5th Cir. 2005), and indeed, is “required to reassess [its] class rulings as the case develops,” Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999), quoted in id. at 280 n.8. Notification of unnamed class members excluded from the new definition is not required. See Bernard v. Gulf Oil Corp., 890 F.2d 735 (5th Cir. 1989).
On June 6, 2011, t he Court certified a class and adopted the following class definition:
Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead of a nursing facility; who require more than 32 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility, and who do not have available (including through family supports, shared living arrangements, or enrollment in the ADHC waiver) other means of receiving personal care services. (Doc. 58, at 5-6) As part of the proposed Settlement Agreement, the Parties are requesting that the Court modify the definition of the class to read as follows:
4 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 4 of 8

All persons who were approved to receive more than 32 hours of services through Louisiana’s Long-Term Personal Case Services (LT-PCS) program as of September 5, 2010, and who are still approved to receive LT-PCS or who have a request for prior authorization pending or in process. The parties’ proposed definition likely includes some individuals who would not be considered class members under the June 6 de finition of the class (e.g., LT-PCS recipients who used to receive over 32 hours of Medicaid-funded personal care services per week but do not require that level of services in order to avoid entering a nursing facility). At the same time, the proposed definition likely excludes some individuals who would be considered class members under the June 6 definition (e.g., future class members and individuals who have never received more than 32 hours per week of LT-PCS). Extending the scope of the class in the manner contemplated by the Settlement Agreement holds no possibility of prejudice for the additional individuals included. These are, by definition, individuals who do not require more than 32 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility. They cannot be prejudiced by inclusion in the class settlement, which provides relief, and encompasses claims for additional services, for people who can show that they do require services in excess of 32 hours per week. Similarly, restricting the scope of the class does not prejudice the rights of persons who were formerly members of the class, because their claims have not been affected and are in no way precluded by the Settlement Agreement. The Parties agree that redefining the class will facilitate settlement and implementation of the Settlement Agreement. The new definition makes the membership of the class determinate and finite. W ith the new definition, the Parties will have greater certainty about the composition of the class for purposes of ensuring that class members benefit from the relief provided under the settlement agreement.
5 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 5 of 8

IV. Conclusion For these reasons, the Parties respectfully request that the Court grant this Motion
in full.
6 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 6 of 8

Dated: January 11, 2012
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 Telephone: 337-237-7380, ext. 11 Facsimile: 337-237-0486 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 Telephone: 215-627-7100, ext. 227 Facsimile: 215-627-3183
Ken Zeller D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street NW Washington, DC 20049 Telephone: 202-434-2138 Facsimile: 202-434 6424
Counsel for Plaintiffs

Respectfully submitted,
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084 Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 629 Baton Rouge, LA 70821-0629 Telephone: 225-342-9500 Facsimile: 225-342-5568
Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291
Counsel for Defendants

7 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 7 of 8

CERTIFICATE OF OPPOSING PARTY’S CONSENT I certify on this 11th day of January, 2011, that Plaintiffs and Defendants have agreed to jointly file the foregoing motion.
/s/ Kimberly Humbles Kimberly Humbles
/s/ Nell Hahn Nell Hahn
CERTIFICATE OF SERVICE I certify on this 11th day of January, 2011, that a t rue and correct copy of the foregoing Joint Motion for Preliminary Approval of Class Settlement and to Redefine the Class was filed electronically using the CM/ECF system. Notice of this filing will be sent via operation of the Court’s electronic filing system to the following:
Nell Hahn nhahn@advocacyla.org Stephen F. Gold stevegoldada@cs.com Bruce Vignery bvignery@aarp.org Kenneth Zeller kzeller@aarp.org Counsel for Plaintiffs James L. Nelson jim.nelson@usdoj.gov Counsel for the United States
/s/ Matthew Berns Matthew Berns
8 Case 3:10-cv-00635-JJB -SCR Document 95 01/11/12 Page 8 of 8

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al. PLAINTIFFS
V. BRUCE GREENSTEIN, et al.

* C.A. No. 3:10-cv-00635-JJB-SCR

*

*

* JUDGE JAMES J. BRADY

*

*

* MAGISTRATE JUDGE STEPHEN

*

C. RIEDLINGER

*

* CLASS ACTION

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

To require people with disabilities who need more than 32 hours of LT-PCS to go

into nursing homes in order to access sufficient personal care service is segregation and

discrimination that violates their rights under the ADA. When cuts are made to

community-based programs, States must insure that the alternative services needed to avoid institutionalization are actually (not merely theoretically) available.1

While Defendants’ response suggests that they have accomplished this, the

reality, for most class members, is that they still must actually be admitted to a nursing

facility in order to immediately access the care they need, whether in the community (by way of an immediate waiver slot offer2) or in a nursing facility. The circumstances of the

named plaintiffs and class members set forth in their own and their physicians’

declarations, undisputed by Defendants, show that they need more than 32 hours of

1 Exhibit 19, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., p. 3, question 9: “Can budget cuts violate the ADA and Olmstead?,” http://www.ada.gov/olmstead/q&a_olmstead.htm (last visited November 9, 2011). 2 While this motion was pending, the name of the waiver program that would provide sufficient home-based services for class members was changed from the Elderly and Disabled Adult waiver to the Community Choice waiver. Plaintiffs will refer to this waiver as the CC waiver. References in previous pleadings to the EDA waiver apply to the CC waiver.

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personal care services to remain safely in their homes and to avoid institutionalization. Defendants have voluntarily, and temporarily, extended their services. To require Defendants to provide a process by which this can be done for similarly-situated class members while this action is pending would not fundamentally alter Defendants’ programs—indeed, this can be accomplished by a reasonable expansion of steps Defendants have already taken.
When, following class certification, Defendants promulgated a new rule providing for emergency waiver opportunities for class members,3 Plaintiffs hoped that this would obviate the need for preliminary injunctive relief. However, Plaintiffs have learned that the opportunities under this policy are far too limited to provide for class members with the services they need pending trial on the merits. 1. Class members are at risk
The detailed declarations of named plaintiffs, class members, and their doctors and nurses show the risks to which the reduction in services subjects the class in this case. While none of them have sought admission to nursing facilities, the risks they run are real and immediate. They risk not being cleaned after incontinence episodes because no one is there to change them.4 They risk missing meals or being bathed.5 They risk
3 Exhibit 20 37 La. Reg. 1490-91 (June 20, 2011) (amending La. Admin. Code tit. 50, §8105). 4 Exhibit 5, Declaration of E.M.S., ¶15; Exhibit 21, Declaration of Mary Dunn, ¶16; Exhibit 22, Declaration of Bessie Foreman, ¶16; Exhibit 23, Declaration of Estelle Curtain, ¶11 and 12. 5 Exhibit 5, Declaration of E.M.S., ¶¶19, 21; Exhibit 7, Declaration of C.D., ¶23; Exhibit 8, Declaration of Lecy Broussard, ¶8; Exhibit 9, Declaration of I.M.L., ¶¶20, 21, 27; Exhibit 10, Declaration of Scharmaine Baker, ¶9; Exhibit 11, Declaration of V.U.S. ¶17; Exhibit 12, Declaration of Cherie Drez, M.D. ¶13; Exhibit 13, Declaration of S.M. ¶7; Exhibit 14, Declaration of Daniel Renois, M.D. ¶10; Exhibit 15, Declaration of L.M. ¶16; Exhibit 21, Declaration of Mary Dunn, ¶¶19, 25; Exhibit 22, Declaration of Bessie Foreman, ¶¶13, 14; Exhibit 23, Declaration of Estelle Curtain, ¶18, 20.
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having to limit their fluid intake so that they will not have to urinate as often.6 They risk falling if no one is with them to assist them with transferring.7 They risk having to remain
in bed even during the day after their worker leaves, because no one will be available to put them to bed later.8 These are exactly the types of unmet needs that studies have
shown lead to death, institutionalization, injury, or worsening health in people with disabilities.9
The defendants have voluntarily extended LT-PCS services at their preSeptember 2010 levels for these class members, through February 29, 2012.10 This case
will probably not be tried before that date, so these class members have no assurance that
they will continue to receive the services they need without the intervention of this Court.
Further, here is no reason to think that all class members know to contact the Advocacy
Center so that class counsel can request a voluntary extension of their services until next
February. This Court must intervene to prevent irreparable harm, through the denial of
medically necessary services, to the class.
2. The steps Defendants have taken to date are not sufficient to prevent irreparable harm to class members
While Defendants persuasively extol recent changes to their programs, these
changes do not alter the situation facing many class members: in order to obtain enough
personal care service to remain safely at home, without experiencing a years-long wait,
they must be first admitted to a nursing facility.
6 Exhibit 7, Declaration of C.D., ¶23; Exhibit 8, Declaration of Lecy Broussard, ¶8 7 Exhibit 10, Declaration of Scharmaine Baker, ¶9; Exhibit 21, Declaration of Mary Dunn ¶23; Exhibit 23, Declaration of Estelle Curtain, ¶14. 8 Exhibit 5, Declaration of E.M.S., ¶¶19, 21; Exhibit 7, Declaration of C.D., ¶23; Exhibit 8, Declaration of Lecy Broussard, ¶8; Exhibit 9, Declaration of I.M.L., ¶¶20, 21, 27; Exhibit 10, Declaration of Scharmaine Baker, ¶9; Exhibit 11, Declaration of V.U.S. ¶17. 9 See Exhibit 24, Declaration of Mitchell LaPlante ¶¶ 10-17 (Rec. Doc. 36-4, pp. 389-91). 10 Third Eley Decl. (Rec. Doc. 81-1) ¶70.
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A. The replacement of the EDA waiver with the CC waiver This is not a new development. Though approval from CMS for the CC Waiver
only came through in October of 2011, Defendants bruited this revamp in connection with their motion to dismiss and for summary judgment.11 As Plaintiffs pointed out then,12 the changes in the CC waiver will add services for people who are already on the waiver, but since the CC waiver will add no new waiver slots, by itself it will do nothing to reduce the lengthy wait for adequate community services that is the central problem facing the class. B. Creation of a process for granting expedited waiver slots
The process for granting expedited CC waiver slots for some class members (the July 2011 Emergency Rule) is indeed a positive development. Its adoption, and the fact that several of the individuals who have been brought to Defendants’ attention in this action have received waiver slots under the program, shows that an exception to Defendants’ rules that will offer expedited services to class members is indeed workable.
However, the current rules and procedures limit this program so that it cannot help many class members. 1. Class members who are not approved to receive at least 32 hours a week cannot even apply for these slots.
According to the Third Declaration of Hugh Eley, ¶7, 13 approximately 2,000 of the 2,900 persons who are now receiving LT-PCS, who have had their hours reduced from above 32 hours a week, had them reduced to less than 32 hours. These individuals
11 Memorandum in Support of the Motion to Dismiss (Rec Doc 11-1) p. 11; Defendants’ Reply to Plaintiffs’ Response to Motion for Summary Judgment (Rec. Doc. 39) p. 4. 12 Memorandum in Opposition to Summary Judgment (Rec. Doc. 36-1) p. 14, n. 71. 13 Rec. Doc. 81-1.
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are not eligible to apply for an emergency waiver slot. About 375 individuals have not yet
had the 32-hour cap applied to them.
Contrary to Defendants’ contention, the class in this case is not limited to
individuals who are currently approved to receive exactly 32 hours of LT-PCS a week.
The class definition is as follows:
Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead of a nursing facility; who require more than 32 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility, and who do not have available (including through family supports, shared living arrangements, or enrollment in the ADHC waiver) other means of receiving personal care services.14
Also contrary to Defendants’ assertions, at pp. 16-17 and n. 10 of their Response,
class members who are receiving less than 32 hours of care are affected by the 32-hour
cap. Because of it, they cannot access the expedited waiver slots through the existing
appeals process.
This was recently demonstrated in the case of R.M., a twenty-six-year-old woman
with severe disabilities caused by a traumatic brain injury in 2003. Her father has submitted a detailed declaration concerning her disabilities and needs. 15
R.M. had been receiving 36.5 hours of LT-PCS for at least the last two years prior to May of 2011.16 In May, she was reassessed under the September 2010 rule that is
challenged here. Though her abilities had declined since her last assessment, she was
approved for only 29 hours of LT-PCS 2011, because her “ADL index” (explained
14 Ruling on Plaintiffs’ Motion for Class Certification (Rec. Doc. 58, June 6, 2011) pp. 5-6. 15 Exhibit 25, Declaration of C.M, ¶¶ 2-9, 17; Attachment B to Declaration of C.M. (letter dated August 8. 2011 from Mario Moreno, M.D.) 16 Exhibit 25, Declaration of C.M., ¶12.
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below) only came out to 11.17 Her application for an emergency waiver slot was denied because she was not approved to receive exactly 32 hours.18
When she attempted to use the appeals process to appeal the award of only 29
hours, arguing that she needed more than 32 hours of LT-PCS to avoid placement in a
nursing home, and that she had to be approved for 32 hours in order to be able to apply
for an emergency waiver slot, the Administrative Law Judge denied her appeal on the
grounds that the maximum amount of LT-PCS that could be awarded, 32 hours, would
not be sufficient to keep Ms. M. from having to enter a nursing home. In her appeal, Ms.
M. showed that her family cannot physically or emotionally cope with any additional
caregiving, and cannot go on paying out of pocket for the 8 to 10 hours of care a week
that have been taken away. She presented evidence that her parents have already taken
steps to determine her eligibility for nursing home services, in preparation for admitting
her to a nursing home if additional hours of LT-PCS are not provided. R.M.’s doctor is
also concerned that the decrease in R.M.’s service hours could force the family to seek
nursing home placement, as she is in constant need of care and supervision. He expressed
concern that her health could deteriorate if she is not provided with more than 32 hours a week of care.19
The Administrative Law Judge credited this evidence, yet specifically held:
…Although Appellant’s representative presented credible evidence that Appellant requires additional hours, the LT-PCS program is limited to 32 hours a week. Louisiana Register 36:2818. Both Appellant’s representative and her doctor have stated that thirty-two hours a week of LT-PCS will not be enough to prevent Appellant from entering a nursing facility. Therefore Appellant failed to show that obtaining additional hours per week of LT-PCS will avoid her entering into a nursing facility.
17 Id. ¶¶ 13, 14. 18 Id. ¶16. 19 Id. ¶17, 18 and Attachments B and C.
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The Department correctly held that Appellant is entitled to twenty-nine hours a week of LT-PCS.20 Thus Ms. M., and other class members who were awarded less than exactly 32 hours under the September 2010 rule, are caught in a classic Catch-22: they cannot obtain the hours of care that they need to remain out of a nursing facility unless they receive an emergency waiver slot, but they cannot succeed in appealing the 32 hours of care they need in order to apply for an emergency waiver slot because they need more than the 32 hour maximum to stay out of a nursing home. Any appeal for 32 hours, for a person who needs more than 32 hours to remain in his or her home, would be futile. Lest the Court believe that individuals who are approved to receive less than 32 hours of services a week do not have severe disabilities, and cannot require more than 32 hours of care to remain safely in their homes, Plaintiffs would remind the Court that, in order to even qualify for the LT-PCS program, recipients must meet a nursing facility “level of care,” and must demonstrate that they “face a substantial possibility of deterioration in mental or physical condition or functioning if either home and community-based services or nursing facility services are not provided in less than 120 days.”21 This “imminent risk” determination requires the administration of stringent criteria, and can be satisfied by a statement from a physician that the person is at substantial risk of nursing home placement or mental or physical deterioration if he or she does not receive home- and community-based services within 120 days.22 Since September of 2010, the determination of how many hours of LT-PCS a
20 Attachment C to Exhibit 25, Declaration of C.M., p. 5. 21 See Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment (Rec. Doc. 36-1) pp. 17-18, and exhibits and testimony cited nn. 92-95; Exhibit 26, 30 La. Reg. p. 2831-32 (December 20, 2004) (amending La. Admin. Code tit. 50, Part XV, §12905(B)(3)). 22 Exhibit 27 LOCET manual excerpts, Section 7.2, p. 21 of 32.
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person can receive has been based on an “ADL Index.” 23 The ADL index is constructed based on only four of the eight activities classed as “activities of daily living” or “ADL’s.” 24 It does not consider recipients’ inability to perform bathing, dressing, ambulating, and personal hygiene and grooming tasks. The index does not include information obtained on Defendants’ assessment instruments about what are termed “instrumental activities of daily living” or “IADL’s” (meal preparation, housework, managing finances, managing medications, using the phone, shopping, or transportation). The index similarly ignores data that is collected in Defendants’ assessment instruments on each recipient25 about such crucial factors as cognitive impairments; difficulty with vision, hearing, or communicating; behavioral symptoms; bladder and bowel continence; disease diagnoses; health problems such as diarrhea, fever, loss of appetite, shortness of breath, edema, delusions, and hallucinations; exent of pain; falls; nutritional status (unless the person is tube-fed); presence or absence of pressure sores; the number and types of medication the person takes; and, most importantly, how much informal support the person has.
People are not eligible to receive 32 hours a week of LT-PCS under this methodology unless they score at least a 14 on the ADL index. To score a 4 in any area, a person must need “extensive assistance,” “maximal assistance,” have “total dependence,” or have not had the activity occur at all, in the last three days. A maximum of 3 points is
23 Exhibit 28, 36 La. Reg. p. 1749 (August 20, 2010) (amending La. Admin. Code tit. 50, Part XV, §12901(C)). 24 Exhibit 29, Eley deposition p. 162, l. 12 - p. 163, l. 13; Exhibit 30, Doc. 1949, pp. 2, 13-14 (Rec. Doc. 36-6, pp. 210, 221-22); Exhibit 31, MDS-HC (Eley Deposition Exhibit 1, Rec. Doc. 36-4, p. 369-373. 25 Exhibit 31, MDS-HC, Sections B, C, D (Rec. Doc. 36-4, p. 369); Sections E, F, and G (Rec. Doc. 36-4, p. 370); Section H(1) and H(2)(c)-(f) and (i)-(j), H(3)-(7) (Rec. Doc. 36-4, p. 370-71); Sections (I) – (Q) (Rec. Doc. 36-4, pp. 371-73).
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given for “needs for assistance in eating,” while each of the other ADL needs can earn 4
points each. Therefore, mathematically, to qualify for the maximum of 32 hours, a
person would have to score at least 4 in two of these areas, and 3 in two others; or 4 in three areas, and 2 in one other.26
Examples of class members who have scored less than a 14 on the ADL index,
and thus have been approved for fewer than 32 hours a week of LT-PCS, are P.M. (Paula
Marshall), E.M.S. (Eddie Mae Shaw), C.D., R.M., Mary Dunn, Bessie Foreman, and
Estelle Curtain. The needs of Ms. Marshall, Ms. Shaw, and C.D. were discussed in Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Injunction.27
Mary Dunn Mary Dunn is 81 years old and lives alone.28 She has a submitted a detailed
declaration. Ms. Dunn uses a wheelchair and needs complete assistance with moving
from one surface to another, toileting, bathing, grooming, and dressing. Because of a fall
she experienced as a result of her attempting to transfer to her bedside commode unattended, she has a fracture in her hip.29
Until June of this year, she was receiving 38 hours a week of LT-PCS. In May 2011, she was notified that her hours would be reduced to 29.30 She attempted to appeal
the reduction. Due to her medication and her advanced age, she is becoming forgetful,
26 Exhibit 29, Eley deposition p. 164, l. 3 – p. 172, l. 11; Exhibit 31, MDS-HC, p. 2, Section H, Item 2 (“ADL Self-Performance” pp. 2 and 3, items H(2)(a),(b),(g) and (h) (Rec. Doc. 36-4 p. 371); Exhibit 32, Doc. 1949, pp. 2, 13-14 (Rec. Doc. 36-6, pp. 210, 221-22); Exhibit 31 MDS-HC (Eley Deposition Exhibit 1, Rec. Doc. 36-4, p. 369-373); Exhibits 32 (Eley deposition exhibit 4, Rec Doc 36-4, p. 374-75) and 33, Detailed Explanation of Scoring (Eley deposition exhibit 5, Rec. Doc. 36-4, pp. 374-77); Exhibit 34, letter dated March 4, 2011 from Caroline Brown to Nell Hahn, item 8 p. 3 (Rec. Doc. 36-4, p. 341). 27 Rec. Doc. 75, pp. 14-19. 28 Exhibit 21, Declaration of Mary Dunn, ¶1. 29 Id. ¶¶5, 6. 30 Exhibit 21, Declaration of Mary Dunn, ¶4.
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and she is not exactly sure what happened with her appeal, but she only succeeded in obtaining approval for one additional hour. She was not notified that if she appealed and received 32 hours, she would be eligible to apply for an emergency waiver slot.31 She needs 38 to 40 hours of LT-PCS to remain in her own home.32
As her declaration details, 32 hours of personal care a week is not enough for a worker to handle all of Ms. Dunn’s personal care, meal preparation, housework, and accompanying to medical appointments, so she is sometimes forced to miss meals and skip hygiene tasks.33 Since her hours were reduced, she has had incontinence “accidents” when her worker was not there, and has had to wait for many hours for her worker to change and clean her.34
Ms. Dunn’s declaration, and that of Emile A. Barrow, Jr., the Board-certified cardiologist who has treated her for the last 24 years, establish that it is medically necessary for Ms. Dunn to receive more than thirty-two hours per week to live safely in her home. Dr. Barrow stated unequivocally that in his professional medical opinion, if Ms. Dunn’s hours are not increased, her condition will deteriorate quickly, and she will have to consider going into a nursing facility.35 Bessie Foreman
Bessie Foreman is 86 years old and lives alone in Iowa, Louisiana.36 She has a submitted a detailed declaration.
31 Id. ¶5, 6. 32 Id. at ¶7. 33 Id. ¶¶8-22, 25. 34 Id. ¶24. 35 Exhibit 35, Declaration of Emile A. Barrow, Jr., M.D. ¶¶7-9. 36 Exhibit 22, Declaration of Bessie Foreman ¶1.
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Ms. Foreman was receiving 38 hours a week of LT-PCS until March of 2011, when she was notified that her hours would be reduced to 26 hours a week. She filed an appeal of that decision. On or about May 1, 2011, her hours were reduced to thirty-two hours per week pending the appeal hearing.37 The hearing was held by phone and Ms. Foreman could not participate because she cannot hear. The decision on appeal was to uphold the Department’s reduction of her hours to 26.38 The appeal hearing was held prior to the Department’s implementation of the new emergency waiver rule, but because her hours were reduced to under 32 per week, Ms. Foreman will not be able to apply for a waiver slot unless this Court requires it.
As her declaration details, 32 hours a week is insufficient to provide for the home care Ms. Foreman needs. Since her LT-PCS hours have been reduced, Ms. Foreman has had to cut down on meals, is no longer able to have a bath daily, and often has to wait for extended periods without being cleaned after bowel or bladder accidents.39 Her daughter, who lives 30 miles away and works two jobs, is currently helping her, but she cannot continue to provide this help on a daily basis.40 Estelle Curtain
Estelle Curtain is 58 years old and lives alone in Baton Rouge.41 She has submitted a detailed declaration.
Until she was reassessed in 2011, Ms. Curtain was receiving 37.25 hours of LTPCS a week. At the time she was notified that her hours would be reduced to 29 per week, she did not know about the Advocacy Center. She tried to appeal the reduction,
37 Id. ¶3, 38 Id. ¶4. 39 Id. ¶¶13, 14, and 16. 40 Id. ¶¶9 and 10. 41 Exhibit 23, Declaration of Estelle Curtain ¶1.
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but the appeals agency told her that they could not find her paperwork. Her hours were
reduced to 29 in mid-June of 2011, prior to the July 2011 emergency rule.42
After her hours were reduced (and before they were restored in October by
request from the Advocacy Center), Ms. Curtain had to sit or lie in wet diapers or bed
pads for many hours because her worker was not there to change her.43 Her worker did
not have time to do her laundry for days at a time, which forced her to live in unclean and
unsanitary conditions.44 Her nutrition suffered, and she began experiencing a recurrence
of symptoms of depression.45
When class members appeal cuts in service to below 32 hours a week, they can
only receive continued benefits while appeals are pending of up to 32 hours a week. It
typically takes the agency several months to decide an appeal.46
2. It is likely that more than 100 class members need emergency waiver slots
Though Defendants state that they will request 500 additional waiver slots to
accommodate class members and others on the years-long waiting list for waiver
services, there is no assurance that this request will be funded, or even make it into the
Executive Budget.47 One hundred slots may or may not be sufficient to provide
42 Id. ¶¶2-4. 43 Id. ¶14. 44 Id. ¶15 45 Id. ¶¶25, 28. 46 In response to discovery requests, Defendants have provided Plaintiffs with a spreadsheet listing the dates and dispositions of appeals of reductions in LT-PCS since September 5, 2010. Three hundred appeals have been decided, and the agency took an average of 68 days to decide them. The maximum number of days a decided appeal pended was 183. Forty appeals had not been decided as of the date of the spreadsheet, and they had pended an average of 57 days. The longest an open appeal had pended was 314 days. Exhibit 36. Fourth Declaration of Jeanne Abadie, ¶4. 47 The fact that the Office of Aging and Adult Services (“OAAS”) requests additional waiver slots does not mean that these slots will become available. As Hugh Eley testified in his deposition, each DHH office comes up with a proposed budget. The Secretary of DHH then submits a proposed budget to the Division of Administration, which may or may not fully fund each
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emergency waiver services to all class members who are reduced to exactly 32 hours, but
it is very unlikely that it will be enough to serve all class members who are affected by
the cap, if the 2,000 individuals whose services have been reduced to below the cap, as
well as the 375 whose services have not yet been reduced, are permitted to apply.
3. Class members must not be required to demonstrate that they will enter nursing facilities “immediately” in order to qualify for additional hours of service
On the one hand, Defendants appear to deny that only persons for whom a cut in
services would necessitate an immediate admission to a nursing facility will be granted
waiver slots. On the other hand, they make it clear that they are not prepared to follow
the standard set forth in the United Stated Department of Justice’s technical assistance for
evaluating risk of institutionalization or segregation. Defendants claim that it is
impossible for them to apply a standard that would award an emergency waiver slot to
individuals for whom the cuts in LT-PCS are “likely to cause a decline in health, safety,
or welfare that would lead to the individual’s eventual placement in an institution,”
because many LT-PCS recipients have degenerative diseases and conditions, and because
Defendants are not aware of “sound diagnostic tools” that would assess whether a person
requires a specified number of hours to avoid such a decline.
Class members’ doctors can and have stated that in their medical opinions they will suffer such a decline if their hours of home care are reduced to 32 or fewer.48 To the
office’s budget proposal. The Division of Administration then develops the Executive Budget to submit to the Legislature, which usually includes less that the amounts that agency offices ask for. Exhibit 29, Eley deposition, p. 196, l. 24 – p. 200, l. 7. In SFY 2010, OAAS requested funding for 1,000 additional waiver slots, but these were not even included in the Secretary’s proposed budget to the Division of Administration. Exhibit 34, letter dated March 4, 2011 from Caroline Brown to Nell Hahn, item 3 p. 1 (Rec. Doc. 36-4, p. 340-41.) 48 Exhibit 37, Declaration of Kendra Whitney, M.D. (re Kenneth Roman) (Rec. Doc. 36-4, pp. 279-82) ¶¶ 7-8, 11; Exhibit 38, Declaration of Christopher Lege, M.D. (re Rickii Ainey) (Rec. Doc. 36-4, pp. 287-89) ¶¶9-10; Exhibit 39, Declaration of Robert Ancira, M.D. (re Rickii Ainey)
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extent that Defendants require a showing of an “immediate” or “near term” admission to
a nursing facility in order to qualify for an emergency waiver slot, their new policy will
not prevent unlawful discrimination against class members.
4. Interim relief must be made available while emergency waiver applications are processed and services initiated.
Defendants’ new emergency waiver slot policy makes no provision for continuing
or restoring necessary LT-PCS hours while requests for emergency slots are pending,
applications processed, and waiver services planned and initiated. Though Defendants
claim that it is takes only two weeks for it to process emergency waiver applications, this is not borne out by Defendants’ response to discovery dated November 2, 2011,49 and
ignores that historically it has typically taken 60 to 90 days for waiver services to begin,
once an offer has been made. As of October 11, 2011, only three emergency waiver
offers had been made. Two were made within two weeks of their request dates, but one
was made on September 7, 2011, 43 days after it was requested. This person’s waiver services were not started until October 18, 2011.50
As of October 11, 2011, six requests for emergency waiver slots were pending for
class members who are approved to receive 32 hours a week of LT-PCS. Defendants’
spreadsheet shows that four of these had requested emergency waiver slots between July
26, 2011 and September 15, 2011.
(Rec. Doc. 36-4, pp. 290-92) ¶6; Exhibit 40, Declaration of Mark Operario, M.D.(re Eddie Mae Shaw) ¶¶9-10; Exhibit 4, Declaration of Patrick Gahan, M.D. (re Paula Marshall) (Rec. Doc. 733, pp. 40-41) ¶¶8-10; Exhibit 18, Declaration of Lisa Richards, M.D. (re Elizabeth Foster) (Rec. Doc. 73-3, pp. 114-15) ¶¶10-11; Exhibit 8, Declaration of Lecy Broussard, A.P.R.N.(re C.D.) (Rec. Doc. 73-3, pp. 55-59) ¶¶9-10; Exhibit 10, Declaration of Scharmaine Baker, D.N.P. (re I.M.L.) (Rec. Doc. 73-3, pp. 66-69) ¶¶7-10; Exhibit 12, Declaration of Cherie Drez, M.D. (re V.U.S.) (Rec. Doc. 73-3, pp.79-82) ¶¶11-13; Exhibit 35, Declaration of Declaration of Emile A. Barrow, Jr., M.D. at ¶¶7-9. 49 Exhibit 36. Fourth Declaration of Jeanne Abadie, ¶5 and attached spreadsheet. 50 Id.
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Moreover, waiver services do not start right away. Hugh Eley testified earlier in
this case that it takes an average of 60 to 90 days, and sometimes longer—for services to begin once a waiver offer is made.51 To avoid deterioration and risk of
institutionalization during this period, interim LT-PCS exceeding the 32-hour limit is
needed.
C. Elimination of the 90-day stay rule for offers to nursing facility residents still requires unlawful segregation and institutionalization in order to receive adequate personal care services.
Prior to June 20, 2011, Defendants not only required people with disabilities to be
admitted to a nursing facility in order to get access to immediate home care services in
excess of 32 hours a week—they also required them to remain in the nursing home for at least 90 consecutive days before they could receive an EDA waiver offer.52 On June 20,
2011, the Department revised its rule to delete the requirement that the person remain for
90 consecutive days in a nursing facility before a waiver offer can be made. However, it
has retained the requirement that a person be actually admitted to a nursing facility in
order to qualify for a waiver offer.
Though clearly the elimination of the 90-day consecutive stay requirement is an
improvement, any requirement that a person actually be admitted to a nursing facility
before he or she receives a waiver offer violates the ADA (especially given the 60- to 90day start-up period for waiver services). See, e.g., Marlo M. v. Cansler53 (granting
preliminary injunction because plaintiffs would suffer regressive consequences if “even
51 Defendants’ Statement of Undisputed Facts in Support of the Motion for Summary Judgment (Rec. Doc. 39-1) at 10, no. 65. 52 Exhibit 41, 36 La. Register 2217-20 (October 20, 2010) (amending La, Admin. Code tit. 50, part XXI. §8105(B)). The only exceptions to this rule were individuals with substantiated cases of abuse or neglect referred by Adult Protective Serivces or Elderly Protective Services, and individuals with Amyotrophic Lateral Sclerosis (Lou Gehrig’s disease). 53 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010)
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temporarily” returning to an institutional setting); Cruz v. Dudek54 (granting preliminary injunction where state proposed entry into nursing home for sixty days prior to providing community-based services); Haddad v. Arnold55 (granting preliminary injunction after finding that the plaintiff would suffer irreparable injury if forced to enter a nursing home). “Temporary” unjustified institutionalization disrupts the individual’s established life in the community and places him or her at risk of psychological, emotional, and physical deterioration.
Defendants must provide meaningful opportunities for class members to obtain the same personal care services that they would obtain in a nursing facility in the most integrated setting appropriate for them—their own homes and communities. It must not condition receipt of those services upon first being admitted to a segregated institutional setting.
D. Offering EDA waiver slots to LT-PCS recipients who have had to wait for years for those services does not meet immediate needs of class members
Defendants tout progress in offering waiver slots to 1,500 recipients of LT-PCS in the last year, including two of the original named plaintiffs—Helen Pitts and Denise Hodges. What Defendants neglect to say is that these individuals, like virtually all individuals in the community who need services in excess of 32 hours a week, have had to wait for years on a waiting list before being offered these services. No new EDA waiver slots have been added since 2009; as of the first of this year, there were 19,156
54 No. 10-23048, 2010 WL 4284955, at *3-7 (S.D. Fla. Oct 12, 2010) (Order adopting Magistrate’s Report and Recommendation, Nov. 24, 2010). 55 784 F.Supp. 2d 1284 (M.D. Fla. 2010).
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people on the waiting list for these services.56 As of March 30, 2011, there was a wait time of 40.5 months for EDA services.57
Plaintiffs Helen Pitts and Denise Hodges, for example, had been on the waiting
list since September of 2007 when they were offered slots in 2011. Because their
situations were spotlighted in this action, they were spared the reduction in their LT-PCS hours that would have placed them at grave danger of physical and mental deterioration.58
Defendants voluntarily extended their services at their pre-September 2011 level because
of their involvement in this case. But many members of the certified class in this action
have been, or will be, waiting years for waiver slots, without the protections that Ms. Pitts
and Ms. Hodges were able to get because they personally came to the attention of class
counsel. They need this Court to protect them against the risk of mental and physical
deterioration that may lead to institutionalization.
E. Voluntary extensions of LT-PCS services to named Plaintiffs and others identified by class counsel do not meet the needs of unnamed class members.
Defendants have voluntarily extended LT-PCS services at their pre-September
2010 level for approximately 20 class members that class counsel has brought to their
attention. However, Defendants have made it clear that they have not committed to
extending these services past February 29, 2011. Further, this does nothing to meet the
needs of class members that class counsel has not encountered.
The Advocacy Center has not succeeded, despite its attempts to reach out to
56 Exhibit 42, Document 2482, Email from Steven Buco to Rick Henley. 57 Second Declaration of Hugh Eley (Rec. Doc. 39-2) ¶21. 58 Ms. Pitts’ physician, Dr. Gregory Ward, a physical medicine and rehabilitation specialist practicing in Baton Rouge, who has treated her for over ten years, noted that her multiple diagnoses put her “in a precarious situation,” and that that when she lacked adequate in-home care for a period of time in 2008 or 2009, her condition greatly deteriorated. Exhibit 43, Declaration of Gregory Ward, M.D. (Rec. Doc. 36-4, pp. 275-278).
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members of the class, in identifying more than a small fraction of the persons placed at risk by these cuts. For example, Defendants have provided, in response to discovery in this case, a list of 366 people who have filed administrative appeals of the cuts in their LT-PCS hours since September 2010. Only 26 of them have contacted the Advocacy Center (not necessarily about the appeals).59
The fact that Defendants have extended LT-PCS hours at their previous level for numerous class members shows that to do so is not a “fundamental alteration” of their program. All Plaintiffs are seeking to do in this motion is to obtain this same consideration pendente lite on a fair and even-handed basis to all class members who need it.
ARGUMENT A. Plaintiffs have standing to seek preliminary injunctive relief for the class
Defendants devote considerable effort to arguing that the named plaintiffs do not have standing to challenge aspects of the emergency waiver process. Defendants claim that the named plaintiffs are not affected by the alleged deficiencies in the process. However, of the three named plaintiffs, only Rickii Ainey has been offered an emergency waiver slot60 under the new policy. Kenneth Roman and Elizabeth Foster have been permitted to apply for emergency slots, but a decision has not yet been reached on their applications. Defendants have voluntarily extended LT-PCS hours for all the named plaintiffs at their pre-September 2010 levels until February 29, 2011.
59 Exhibit 36, Fourth Declaration of Jeanne Abadie, ¶3. 60 This offer was made on or about October 27, 2011. Id., ¶7.
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Defendants cite Lewis v. Casey61 for the proposition that the named plaintiffs do not have standing to seek additional slots beyond the 100 currently allocated, to seek to provide emergency slots to people approved to receive fewer than 32 hours of LT-PCS, to provide interim benefits for persons while they apply for emergency slots, or to challenge the standard for awarding emergency slots.
When they brought this action, all of the named plaintiffs were at risk of deterioration and institutionalization because of the September 2010 rule mandating reductions in their LT-PCS hours. This policy had no exceptions process for people who need more than 32 hours of LT-PCS to remain in their homes and communities. The named plaintiffs were all personally affected by this lack of an exceptions policy and had standing to challenge it. The fact that Defendants have now voluntarily adopted an exceptions policy of sorts does not deprive the named plaintiffs of standing.
Voluntary actions taken by a defendant in a class action to alleviate harm to the named class representative do not affect that representative’s standing. As the Fifth Circuit explained in Mississippi Prot. & Advocacy Sys., Inc. v. Cotton,62 named plaintiffs who present a live controversy when filing their complaint and at the time of class certification cannot be “mooted out” by voluntary actions of defendants in such a way as to destroy their ability to represent the class. Their claims are seen as “capable of repetition, yet evading review.” Sosna v. Iowa;63 Zeidman v. J. Ray McDermott.64
Lewis v. Casey is inapposite. In Lewis, a sweeping injunction minutely regulating Arizona’s prison law libraries had been obtained even though actual harm had only been
61 518 U.S. 343 (1996). 62 929 F.2d 1054, 1057-58 (5th Cir. 1991) 63 419 U.S. 393, 399-400 (1975), 64 651 F. 2d 1030 (5th Cir. 1981)
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shown by two class members, and the harm they had suffered did not rise to the level of a systematic constitutional violation. Similarly, Hodgers-Durgin v. de la Vina,65 differs from the instant case because there, the named plaintiffs did not have standing to seek injunctive relief when the case was filed, because they were not threatened with future harm. These cases do not support the argument that the named plaintiffs in this case, who, when the case was filed, were threatened with actual harm from a systematic policy whose effects they shared with other class members, lack standing.
The applications of plaintiffs Roman and Foster for an emergency waiver slot are still pending. Thus, they have standing to challenge the standard being used in the exceptions process.
The one area in which the named plaintiffs may differ from some class members is that they have all been approved to receive 32 hours a week of LT-PCS in their most recent assessment. Thus, they are eligible to apply for emergency waiver slots under the July 2011 Emergency Rule. To satisfy any necessity for a class representative that is approved to receive less than 32 hours of LT-PCS, class members Eddie Mae Shaw (“E.M.S.” in Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction), Paula Marshall (“P.M.”), Mary Dunn, Bessie Foreman, and Estelle Curtain will seek leave to intervene as additional class representatives. B. Plaintiffs have satisfied the the preliminary injunction requirements..
Though Defendants characterize this motion as seeking a mandatory injunction, and cite cases that purport to establish a higher standard for such relief, for most class members the relief requested here will simply retain the status quo as of the date this action was instituted. Where a defendant an injunction proceeding takes the actions
65 199 F.3d 1037 (1999).
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sought to be enjoined, the court may enter a preliminary injunction to restore the status quo.”66 In any event, the need for Court intervention to protect the civil rights of class
members outweighs any considerations purporting to disfavor mandatory injunctions. Defendants’ cite Martinez v. Matthews67 (finding despite a “clearly favoring”
analysis, that the Migrant Health Act required immediate appointment of migrant workers
to a majority of the health provider’s board of directors), for the proposition that
mandatory injunctions require a much higher standard than those seeking to only
maintain the status quo. While Plaintiffs do not concede they are requesting any more
than protecting the status quo ante, reading on in Martinez reveals that while that facts
and law should clearly favor the moving party, the analysis the Court is to apply is
otherwise the same. There must “…be an evaluation of the equitable considerations
involved: the plaintiffs' likelihood of prevailing on the merits, the possibility of
irreparable harm to the plaintiffs, the counterbalancing risk of harm to the defendants,
and the public interest. Id. The Martinez court then went on to look at congressional
concern in the adoption of the Migrant Health Act, which was to assure the recipients of
migrant health services had a voice in the provision of their health care, and to prevent
health care for migrants from being lost in the shuffle, and found that Plaintiffs were
entitled to their preliminary injunction.
Plaintiffs have set forth in their Memorandum of Law in Support of Motion for a
66 Porter v. Lee, 328 U.S. 246 (1946) (reversing denial of preliminary injunction restoring tenant to property from which evicted); Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993) (affirming grant of preliminary injunction in Title IX case restoring women’s varsity teams); F.T.C. v. Weyerhouser Co., 648 F.2d 739 (D.C. Cir. 1981) (enjoining challenged merger which had already occurred). In such cases, courts have defined the “status quo” as the “last peaceable uncontested status” between the parties, United States v. F.D.I.C., 881 F.2d 207, 210 (5th Cir. 1989); Alexander v. Sav. Life Ins. Co., CIV.A. 87-1477, 1987 WL 13226 (E.D. La. June 30, 1987). 67 544 F.2d 1233, 1243 (5th Cir. 1976).
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Preliminary Injunction a detailed argument regarding how they meet the four Winter requirements for issuance of an injunction. Plaintiffs are entitled to injunctive relief under the ADA’s and the Rehabilitation Act’s integration mandate. With this Court’s earlier ruling that the state’s system violates the ADA by requiring a greater risk of institutionalization for people who require more than 32 hours per week of assistance, and the fact that Defendants still require a person to enter the nursing home before getting an immediate waiver slot, prevailing on the merits of the ADA claim is utterly clear. Irreparable injury and the balance of the equities are clear from the loss of services Plaintiffs will suffer because of the Defendants’ policies. Likewise, an injunction is clearly in the public interest. C. The relief Plaintiffs are requesting would not fundamentally alter Defendants’ programs.
Plaintiffs suggest two alternative means of preventing irreparable harm to the class pending trial on the merits: (1) an expansion of the steps Defendants have already taken to provide access to immediate waiver services for class members; and (2) the institution of an exceptions process that would allow class members to receive LT-PCS in excess of the 32-hour limit if they can show that they need more than 32 hours to avoid deterioration and eventual placement in a nursing facility. These types of relief will not fundamentally alter Defendants’ programs. 1. It is workable for Defendants to provide emergency Community Choice waiver slot offers to persons who can demonstrate that they need more than 32 hours of LT-PCS to avoid “a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.”
Defendants assert that it would be impossible for it to administer the standard articulated by the Justice Department in its June 2011 technical assistance guide to state
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and local governments on Olmstead compliance:
A plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity’s failure to provide community services or its cut to such services will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution. (emphasis supplied).
Defendants contend this standard is impossible to apply because (1) the program
primarily serves the elderly and persons with degenerative conditions; and (2) they are
not aware of any “sound diagnostic tool” that can be used to assess whether someone
needs a particular level of assistance to avoid institutionalization. They claim that
“nursing home admission is often the result of unpredictable (e.g., a slip-and-fall, the loss
of a caregiver, or a family’s decision that a nursing home is most appropriate) rather than someone receiving 32 hours of personal care assistance every week”68 and therefore
assert that they cannot apply the Justice Department’s standard to determine whether or
not class members are placed at risk.
Though Mr. Eley may be unaware of any “sound diagnostic tool” to determine
the number of hours of services that are necessary to prevent deterioration in health,
safety, and welfare that will lead to eventual nursing home placement, medical
professionals routinely make these judgments. The medical professionals who have
treated the named plaintiffs and other class members in this case, have in fact testified
precisely to the fact that a reduction in service hours to these individuals will indeed place them at risk of physical and mental deterioration and eventual institutionalization.69
Further, Defendants’ rules currently permit a class member to appeal to obtain
68 Third Eley Decl. at ¶47; Attachment E to Third Eley Declaration, pp. 2, 3 (Rec. Doc. 81-2, pp. 23 and 24) (showing plan amendment not submitted until September 30, 2010, and not approved until December 14.) 69 See n. 48 supra.
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more hours than number dictated by their ADL index (up to a maximum of 32 hours), by showing “that he or she needs additional hours to avoid entering a nursing facility.”70 Defendants do not explain why it is workable for a recipient to show that he needs more hours, up to a maximum of 32, to avoid institutionalization, but not workable for a recipient to show they need more than 32 hours to avoid deterioration and eventual institutionalization.
Similarly, Defendants’ policies already require a finding that a person is at “imminent risk” of nursing facility placement if home and community-based services are not provided within 120 days.71 This requires just the type of medical judgment that Defendants contend in their response is impossible to make. 2. The changes Plaintiffs seek in the emergency waiver slot program would not overwhelm the system.
If current experience is any indication, the number of people who will apply for an emergency waiver slot if the eligibility for the slot is expanded is not huge. Defendants state that of the 2,900 people whose services have been reduced to a maximum of 32 hours a week, and who still receive LT-PCS, 500 individuals had their services reduced to exactly 32 hours a week, and were thus eligible to apply for emergency waiver slots. Yet even though this change was implemented last July, as of the middle of October, only about 30 applications had been received. At this response rate, the number of applications for emergency slots is extremely unlikely to overwhelm the system, even if (as Defendants suggest at p. 18 of their Response) “the percentage of requests that are actually granted would likely be relatively small.”
70 Exhibit 44, 37 La. Register 1113 (April 20, 2011), amending La. Admin. Code Tit. 50, part XV, §12901(D)(2)(b). 71 See nn. 21 and 22, supra.
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Similarly, extending LT-PCS benefits temporarily, for those who apply for emergency waiver slots, is not likely to overwhelm the system. Defendants suggest that it is able to start waiver services within six weeks of a request, for those whose emergency waiver requests are granted. If this is true,72 the extension of LT-PCS for this short period will not cost very much, and will alleviate much unnecessary and unjustified suffering on the part of class members. 3. It would not fundamentally alter Defendants’ LT-PCS program to provide a mechanism for class members to seek an exception to the 32-hour maximum.
a. The State Medicaid plan is not a barrier to services in excess of the 32-hour cap. Louisiana has had several different rules placing maximum hours on its State
Medicaid plan LT-PCS. Until 2009, the maximum was 56 hours a week. In 2009, the State reduced the maximum to 42 hours a week. In September of 2010, Defendants implemented the 32-hour cap on LT-PCS. The Centers for Medicare and Medicaid services (“CMS”) approved all of these arrangements. Louisiana did not seek to amend its State Medicaid plan prior to implementing the rule challenged in this case, and in fact Mr. Eley states that approval was not received until December of 2010.73 If this Court requires the State to provide a mechanism for class members to seek an exception to the 32-hour cap, there is absolutely no reason to believe that CMS will not readily approve such an amendment retroactively to the date of its implementation, as it has routinely done in the past.
72 Only four waiver slot offers have been extended to date. Three of these were to class members brought to the attention of Defendants by class counsel. None of these persons services were started within six weeks of their request. Exhibit 36, Fourth Declaration of Jeanne Abadie, ¶¶6,7. 73 Third Eley Decl. ¶67; Attachment E to Third Eley Declaration, pp. 2, 3 (Rec. Doc. 81-2, pp. 23 and 24) (showing plan amendment not submitted until September 30, 2010, and not approved until December 14).
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b. Allowing class members who need more than 32 hours to alleviate the risk of institutionalization by obtaining an exception to the cap does not “redefine” the LT-PCS benefit.
Defendants’ argues that the LT-PCS benefit is by its nature limited to 32 hours, and that the program is not intended to satisfy class members’ need for services to prevent them from having to be institutionalized. They cite Alexander v. Choate74 for the proposition that the ADA does not require it to “redefine” the “particular package of health care services” available through the LT-PCS program.
Alexander v. Choate is distinguishable from this case because it did not involve claims of unnecessary institutionalization and segregation. While Alexander stands for the proposition that not every distinction in Medicaid benefits that disproportionately disfavors individuals with disabilities violates the ADA, Olmstead v. L.C. stands for the proposition that states may not condition the receipt of Medicaid services upon the acceptance of unnecessary segregation and institutionalization. For Louisiana to define its benefit so that people who need more than 32 hours of personal care must enter a nursing facilty to obtain it does violate the ADA.
Defendants’ characterization of the LT-PCS program is disingenuous. The program has always been aimed at providing home- and community-based services as an alternative to nursing facility services. It was instituted in 2003 as a result of the Barthelemy litigation, which was a case under the ADA to require the Defendants to provide home- and community-based services as an alternative to nursing facility services. The rule establishing LT-PCS provided that “The purpose of personal care services is to enable an individual whose needs would otherwise require placement in an
74 369 U.S. 287 (1985).
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acute or long-term care facility to remain safely in that individual’s own home.”75 This rule was repromulgated many times with similar language.76 Though the rule Plaintiffs challenge here omits (for the first time) any reference to allowing individuals with disabilities to remain safely in their own homes, neither it, nor any subsequent repromulgations, have announced any fundamental change in the program, other than to cut the maximum hours. Defendants did not offer any additional services, when the September 2010 rule was promulgated, to take the place of the LT-PCS program. And as in previous rules, the September 2010 rule allows class members to obtain the maximum number of hours on appeal, despite their ADL index, if they show that they need that number of hours to avoid having to enter a nursing facility. To credit Defendants’ argument that the purpose of the LT-PCS program is simply to offer a limited benefit, and that to require changes in that benefit to accommodate people who require more services to avoid deterioration and eventual nursing facility placement will ipso facto fundamentally alter the program, would be to allow Defendants to circumvent the ADA by simply “wordsmithing” their rule.
Defendants’ argument that creating a means for class members to obtain services in excess of the 32-hour cap would fundamentally alter its program because DHH “does not allocate services in the LT-PCS program based on how many hours of assistance an individual requires to avoid entering a nursing home”77 is difficult to understand. Defendants claim that their allocation of hours is based on “an evidence-based uniform assessment tool not to determine how many hours of assistance each recipient “needs” but the recipient’s demonstrated independence in performing ADL’s as compared with
75 La. Register 29:911 (June 20, 2003). 76 See La Reg 38: (December 20, 2008); La Reg 39:11 (November 20, 2010). 77 Defendants’ Memorandum at 21; Third Eley Decl. at ¶66),
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others in the LT-PCS program.”78 They claim that this method produces an allocation of
LT-PCS hours that is “more fair and efficient” than an unspecified “previous
approach,”79 and that to permit approval of more hours based on a showing of a need for
more hours to avoid institutionalization would somehow disrupt the program.
Defendants do not explain how an allocation of hours of service that does not
consider the individual’s need for services can be considered “fair.” Though they assert
that there is some “evidence” that supports an allocation mechanism that does not
consider need, it is hard to imagine what question this evidence might address. Indeed,
using an allocation method that provides different levels of services to Medicaid
recipients based on distinctions unrelated to medical need would violate the Medicaid
statute’s “comparability” requirement, 42 U.S.C. ß 1396a(a)(10)(B).80
As noted above, DHH already permits class members to receive services in excess
of the amount dictated by the allocation mechanism if they can show that they need more
hours up to a maximum of 32, to avoid entering a nursing facility.81 The class members
discussed in Plaintiff’s motion have demonstrated, through their own testimony and the
testimony of their treating physicians, that they need hours in excess of 32 to remain
78 Defendants’ Memorandum at 21. 79 Defendants assert that their current methodology was adopted in 2009. In fact, a completely different methodology—one which took into account significantly more information from the MDS—was adopted in 2009, and the current methodology was only adopted in August, 2010. 80 V.L. v. Wagner, 669 F. Supp. 2d 1106, 1114-15 (N.D. Cal. 2009) order enforced, C 09-04668 CW, 2009 WL 4282079 (N.D. Cal. Nov. 25, 2009) (holding use of numerical scores to determine eligibility for in-home services likely violates the comparability requirement because scores do not reasonably measure the individual’s need for a particular service), citing 42 C.F.R. ß 440.240; Jenkins v. Washington State Dep't of Social & Health Servs., 160 Wash.2d 287, 157 P.3d 388, 392 (2007); Sobky v. Smoley, 855 F.Supp. 1123, 1139 (E.D.Cal.1994) (comparability requirement “creates an equality principle” for all medically needy individuals); Schott v. Olszewski, 401 F.3d 682, 688-89 (6th Cir.2005); White v. Beal, 555 F.2d 1146, 1151-52 (3d Cir.1977). See also Cota v. Maxwell-Jolly, 688 F.Supp.2d 980, 993 (N.D. Calif. 2010). 81 Defendants’ previous rules, using a different allocation methodology and applying a 42-hour cap, permitted recipients to obtain services up to the maximum cap of 42 hours, on a showing that they needed more hours than the allocation method assigned to avoid entering a nursing facility.
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safely in their homes. To allow them and others to obtain additional services on such a showing will not fundamentally alter the LT-PCS program. b. There is no reason to believe that requiring an exceptions mechanism while this action is pending will jeopardize the financial stability of the LT-PCS program.
Defendants have already allowed exceptions to the ceiling on LT-PCS hours for the named Plaintiffs and other class members brought to their attention by class counsel. Defendants have pointed to no harm to the LT-PCS program as a result of these exceptions, and they have not offered any estimate of the cost of providing such exceptions to other class members, as Plaintiffs are requesting here. They acknowledge that only 30, of a potential 500, class members have come forward to request emergency waiver slots under the rule implemented last July, that permits them to seek an emergency slot if 32 hours of LT-PCS are insufficient to prevent them from having to enter a nursing facility. There is no reason to believe that extending or restoring the LTPCS services to class members who are able to come forward and demonstrate that they need more hours to avoid deterioration and nursing facility placement while this case is pending will jeopardize the financial stability of the program. Conclusion
For the reasons and on the authority cited above, Plaintiffs respectfully requests that this Honorable Court grant preliminary injunctive relief to the class. Date: November 14, 2011.
Respectfully submitted: /s/ Nell Hahn Nell Hahn, T.A., Louisiana Bar No. 22406 ADVOCACY CENTER 600 Jefferson St., Suite 812 Lafayette, LA 70501
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(337) 237-7380, ext. 311 (337) 237-0486 FAX Email: nhahn@advocacyla.org Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada1@gmail.com Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424
Counsel for the Plaintiff
CERTIFICATE OF SERVICE I hereby certify that on November 14, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al. PLAINTIFFS
V. BRUCE GREENSTEIN, et al.

* C.A. No. 3:10-cv-00635-JJB-SCR

*

*

* JUDGE JAMES J. BRADY

*

*

* MAGISTRATE JUDGE STEPHEN

*

C. RIEDLINGER

*

* CLASS ACTION

ADDITIONAL EXHIBITS IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs submit the following additional exhibits in support of their Motion for

Preliminary Injunction:

Page Exhibit

1 Exhibit 19, Statement of the Department of Justice

8 Exhibit 20 37 La. Reg. 1490-91 (June 20, 2011)

11 Exhibit 21 Declaration of Mary Dunn

18 Exhibit 22 Declaration of Bessie Foreman

25 Exhibit 23 Declaration of Estelle Curtain

32 Exhibit 24 Declaration of Mitchell LaPlante

46 Exhibit 25 Declaration of C.M.

66 Exhibit 26 30 La. Reg. p. 2831-32 (December 20, 2004)

69 Exhibit 27 LOCET manual excerpts.

78 Exhibit 28 36 La. Reg. p. 1749 (August 20, 2010)

83 Exhibit 29 Eley deposition excerpts

104 Exhibit 30 Doc. 1949

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121 Exhibit 31 MDS-HC 127 Exhibit 32 Eley deposition exhibit 4-scoring sheet 129 Exhibit 33 Eley deposition exhibit 5--Detailed Explanation of Scoring 131 Exhibit 34 Letter dated March 4, 2011 from Caroline Brown to Nell Hahn 136 Exhibit 35 Declaration of Emile A. Barrow, Jr., M.D 139 Exhibit 36 Fourth Declaration of Jeanne Abadie 144 Exhibit 37 Declaration of Kendra Whitney, M.D. 148 Exhibit 38, Declaration of Christopher Lege, M.D. 151 Exhibit 39, Declaration of Robert Ancira, M.D. 154 Exhibit 40, Declaration of Mark Operario, M.D. 156 Exhibit 41 36 La. Register 2217-20 (October 20, 2010) 161 Exhibit 42 Doc. 2482 163 Exhibit 43 Declaration of Gregory Ward, M.D. 167 Exhibit 44 La. Register 37:1113 (April 20, 2011)

Date: November 14, 2011.

Respectfully submitted:
/s/ Nell Hahn Nell Hahn, T.A., Louisiana Bar No. 22406 ADVOCACY CENTER 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 311 (337) 237-0486 FAX Email: nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway

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Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada1@gmail.com Ken Zeller, D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery, D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Fascimile (202)434-6424 Counsel for the Plaintiff
CERTIFICATE OF SERVICE I hereby certify that on November 14, 2011, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/EDF system. Notice of this filing will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Nell Hahn______________________
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Exhibit 19

Statement of the Dept. of Justice on Enforcement of the Integration Mandate

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Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II...
U.S. Department of Justice Civil Rights Division

http://www.ada.gov/olmstead/q&a_olmstead.htm

Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with
Disabilities Act and Olmstead v. L.C.

In the years since the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), the goal of the integration mandate in title II of the Americans with Disabilities Act – to provide individuals with disabilities opportunities to live their lives like individuals without disabilities – has yet to be fully realized. Some state and local governments have begun providing more integrated community alternatives to individuals in or at risk of segregation in institutions or other segregated settings. Yet many people who could and want to live, work, and receive services in integrated settings are still waiting for the promise of Olmstead to be fulfilled.
In 2009, on the tenth anniversary of the Supreme Court’s decision in Olmstead, President Obama launched “The Year of Community Living” and directed federal agencies to vigorously enforce the civil rights of Americans with disabilities. Since then, the Department of Justice has made enforcement of Olmstead a top priority. As we commemorate the 12th anniversary of the Olmstead decision, the Department of Justice reaffirms its commitment to vindicate the right of individuals with disabilities to live integrated lives under the ADA and Olmstead. To assist individuals in understanding their rights under title II of the ADA and its integration mandate, and to assist state and local governments in complying with the ADA, the Department of Justice has created this technical assistance guide.
The ADA and Its Integration Mandate
In 1990, Congress enacted the landmark Americans with Disabilities Act “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 1 In passing this groundbreaking law, Congress recognized 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.” 2 For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities:
[N]o 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. 3
As directed by Congress, the Attorney General issued regulations implementing title II, which are based on regulations issued under section 504 of the Rehabilitation Act. 4 The title II regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 5 The preamble discussion of the “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . .” 6
In Olmstead v. L.C., 527 U.S. 581 (1999),the Supreme Court held that title II prohibits the unjustified segregation of individuals with disabilities. The Supreme Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. 7 The Supreme Court explained that this holding “reflects two evident judgments.” First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Second, “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” 8
To comply with the ADA’s integration mandate, public entities must reasonably modify their policies, procedures or practices when necessary to avoid discrimination. 9 The obligation to make reasonable modifications may be excused only where the public entity demonstrates that the requested modifications would “fundamentally alter” its service system. 10

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Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II...

http://www.ada.gov/olmstead/q&a_olmstead.htm

In the years since the passage of the ADA and the Supreme Court’s decision in Olmstead, the ADA’s integration mandate has been applied in a wide variety of contexts and has been the subject of substantial litigation. The Department of Justice has created this technical assistance guide to assist individuals in understanding their rights and public entities in understanding their obligations under the ADA and Olmstead. This guide catalogs and explains the positions the Department of Justice has taken in its Olmstead enforcement. It reflects the views of the Department of Justice only. For questions about this guide, you may contact our ADA Information Line, 800-514-0301 (voice), 800-514-0383 (TTY).
Date: June 22, 2011

Questions and Answers on the ADA’s Integration Mandate and Olmstead Enforcement

1. What is the most integrated setting under the ADA and Olmstead? A: The “most integrated setting” is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 11 Integrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; afford individuals choice in their daily life activities; and, provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible. Evidence-based practices that provide scattered-site housing with supportive services are examples of integrated settings. By contrast, segregated settings often have qualities of an institutional nature. Segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities.

2. When is the ADA’s integration mandate implicated? A: The ADA’s integration mandate is implicated where a public entity administers its programs in a manner that results in unjustified segregation of persons with disabilities. More specifically, a public entity may violate the ADA’s integration mandate when it: (1) directly or indirectly operates facilities and or/programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities; and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs. 12

3. Does a violation of the ADA’s integration mandate require a showing of facial discrimination? A: No, in the Olmstead context, an individual is not required to prove facial discrimination. In Olmstead, the court held that the plaintiffs could make out a case under the integration mandate even if they could not prove “but for” their disability, they would have received the community-based services they sought. It was enough that the state currently provided them services in an institutional setting that was not the most integrated setting appropriate. 13 Additionally, an Olmstead claim is distinct from a claim of disparate treatment or disparate impact and accordingly does not require proof of those forms of discrimination.

4. What evidence may an individual rely on to establish that an integrated setting is appropriate? A: An individual may rely on a variety of forms of evidence to establish that an integrated setting is appropriate. A reasonable, objective assessment by a public entity’s treating professional is one, but only one, such avenue. Such assessments must identify individuals’ needs and the services and supports necessary for them to succeed in an integrated setting. Professionals involved in the assessments must be knowledgeable about the range of supports and services available in the community. However, the ADA and its regulations do not require an individual to have had a state treating professional make such a determination. People with disabilities can also present their own independent evidence of the appropriateness of an integrated setting, including, for example, that individuals with similar needs are living, working and receiving services in integrated settings with appropriate supports. This evidence may come from their own treatment providers, from community-based organizations that provide services to people with disabilities outside of institutional settings, or from any other relevant source. Limiting the evidence on which Olmstead plaintiffs may rely would enable public entities to circumvent their Olmstead requirements by failing to require professionals to make recommendations regarding the ability of individuals to be served in more integrated settings.

5. What factors are relevant in determining whether an individual does not oppose an integrated setting? A: Individuals must be provided the opportunity to make an informed decision. Individuals who have been institutionalized and segregated have often been repeatedly told that they are not capable of successful community living and have been given very little information, if any, about how they could successfully live in integrated settings. As a result, individuals’ and their families’ initial response when offered integrated options may be
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reluctance or hesitancy. Public entities must take affirmative steps to remedy this history of segregation and prejudice in order to ensure that individuals have an opportunity to make an informed choice. Such steps include providing information about the benefits of integrated settings; facilitating visits or other experiences in such settings; and offering opportunities to meet with other individuals with disabilities who are living, working and receiving services in integrated settings, with their families, and with community providers. Public entities also must make reasonable efforts to identify and addresses any concerns or objections raised by the individual or another relevant decision-maker.

6. Do the ADA and Olmstead apply to persons at serious risk of institutionalization or segregation? A: Yes, the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings. Individuals need not wait until the harm of institutionalization or segregation occurs or is imminent. For example, a plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity’s failure to provide community services or its cut to such services will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.

7. May the ADA and Olmstead require states to provide additional services, or services to additional individuals, than are provided for in their Medicaid programs? A: A state’s obligations under the ADA are independent from the requirements of the Medicaid program. 14 Providing services beyond what a state currently provides under Medicaid may not cause a fundamental alteration, and the ADA may require states to provide those services, under certain circumstances. For example, the fact that a state is permitted to “cap” the number of individuals it serves in a particular waiver program under the Medicaid Act does not exempt the state from serving additional people in the community to comply with the ADA or other laws. 15

8. Do the ADA and Olmstead require a public entity to provide services in the community to persons with disabilities when it would otherwise provide such services in institutions? A: Yes. Public entities cannot avoid their obligations under the ADA and Olmstead by characterizing as a “new service” services that they currently offer only in institutional settings. The ADA regulations make clear that where a public entity operates a program or provides a service, it cannot discriminate against individuals with disabilities in the provision of those services. 16 Once public entities choose to provide certain services, they must do so in a nondiscriminatory fashion. 17

9. Can budget cuts violate the ADA and Olmstead? A: Yes, budget cuts can violate the ADA and Olmstead when significant funding cuts to community services create a risk of institutionalization or segregation. The most obvious example of such a risk is where budget cuts require the elimination or reduction of community services specifically designed for individuals who would be institutionalized without such services. In making such budget cuts, public entities have a duty to take all reasonable steps to avoid placing individuals at risk of institutionalization. For example, public entities may be required to make exceptions to the service reductions or to provide alternative services to individuals who would be forced into institutions as a result of the cuts. If providing alternative services, public entities must ensure that those services are actually available and that individuals can actually secure them to avoid institutionalization.

10. What is the fundamental alteration defense? A: A public entity’s obligation under Olmstead to provide services in the most integrated setting is not unlimited. A public entity may be excused in instances where it can prove that the requested modification would result in a “fundamental alteration” of the public entity’s service system. A fundamental alteration requires the public entity to prove “that, in the allocation of available resources, immediate relief for plaintiffs would be inequitable, given the responsibility the State [or local government] has taken for the care and treatment of a large and diverse population of persons with [ ] disabilities.” 18 It is the public entity’s burden to establish that the requested modification would fundamentally alter its service system.

11. What budgetary resources and costs are relevant to determine if the relief sought would constitute a fundamental alteration? A: The relevant resources for purposes of evaluating a fundamental alteration defense consist of all money the public entity allots, spends, receives, or could receive if it applied for available federal funding to provide services to persons with disabilities. Similarly, all relevant costs, not simply those funded by the single agency that operates or funds the segregated or integrated setting, must be considered in a fundamental alteration analysis. Moreover, cost comparisons need not be static or fixed. If the cost of the segregated setting will likely increase, for instance due to maintenance, capital expenses, environmental modifications, addressing substandard care, or providing required services that have been denied, these incremental costs should be incorporated into the calculation. Similarly, if the cost of providing integrated services is likely to decrease over time, for instance due to enhanced independence or decreased support needs, this reduction should be incorporated as well. In determining whether a service would be so expensive as to constitute a fundamental alteration, the fact that there may be transitional costs of converting from segregated to integrated settings can be considered, but it is not determinative. However, if a public entity decides to serve new individuals in segregated settings (“backfilling”), rather than to close or downsize the segregated settings as individuals in the plaintiff class move to integrated settings, the costs associated with that

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decision should not be included in the fundamental alteration analysis.

12. What is an Olmstead Plan? A: An Olmstead plan is a public entity’s plan for implementing its obligation to provide individuals with disabilities opportunities to live, work, and be served in integrated settings. A comprehensive, effectively working plan must do more than provide vague assurances of future integrated options or describe the entity’s general history of increased funding for community services and decreased institutional populations. Instead, it must reflect an analysis of the extent to which the public entity is providing services in the most integrated setting and must contain concrete and reliable commitments to expand integrated opportunities. The plan must have specific and reasonable timeframes and measurable goals for which the public entity may be held accountable, and there must be funding to support the plan, which may come from reallocating existing service dollars. The plan should include commitments for each group of persons who are unnecessarily segregated, such as individuals residing in facilities for individuals with developmental disabilities, psychiatric hospitals, nursing homes and board and care homes, or individuals spending their days in sheltered workshops or segregated day programs. To be effective, the plan must have demonstrated success in actually moving individuals to integrated settings in accordance with the plan. A public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan comprehensively and effectively addresses the needless segregation of the group at issue in the case. Any plan should be evaluated in light of the length of time that has passed since the Supreme Court’s decision in Olmstead, including a fact-specific inquiry into what the public entity could have accomplished in the past and what it could accomplish in the future.

13. Can a public entity raise a viable fundamental alteration defense without having implemented an Olmstead plan? A: The Department of Justice has interpreted the ADA and its implementing regulations to generally require an Olmstead plan as a prerequisite to raising a fundamental alteration defense, particularly in cases involving individuals currently in institutions or on waitlists for services in the community . In order to raise a fundamental alteration defense, a public entity must first show that it has developed a comprehensive, effectively working Olmstead plan that meets the standards described above. The public entity must also prove that it is implementing the plan in order to avail itself of the fundamental alteration defense. A public entity that cannot show it has and is implementing a working plan will not be able to prove that it is already making sufficient progress in complying with the integration mandate and that the requested relief would so disrupt the implementation of the plan as to cause a fundamental alteration.

14. What is the relevance of budgetary shortages to a fundamental alteration defense? A: Public entities have the burden to show that immediate relief to the plaintiffs would effect a fundamental alteration of their program. Budgetary shortages are not, in and of themselves, evidence that such relief would constitute a fundamental alteration. Even in times of budgetary constraints, public entities can often reasonably modify their programs by re-allocating funding from expensive segregated settings to cost-effective integrated settings. Whether the public entity has sought additional federal resources available to support the provision of services in integrated settings for the particular group or individual requesting the modification – such as Medicaid, Money Follows the Person grants, and federal housing vouchers – is also relevant to a budgetary defense.

15. What types of remedies address violations of the ADA’s integration mandate? A: A wide range of remedies may be appropriate to address violations of the ADA and Olmstead, depending on the nature of the violations. Remedies typically require the public entity to expand the capacity of community-based alternatives by a specific amount, over a set period of time. Remedies should focus on expanding the most integrated alternatives. For example, in cases involving residential segregation in institutions or large congregate facilities, remedies should provide individuals opportunities to live in their own apartments or family homes, with necessary supports. Remedies should also focus on expanding the services and supports necessary for individuals’ successful community tenure. Olmstead remedies should include, depending on the population at issue: supported housing, Home and Community Based Services (“HCBS”) waivers, 19 crisis services, Assertive Community Treatment (“ACT”) teams, case management, respite, personal care services, peer support services, and supported employment. In addition, court orders and settlement agreements have typically required public entities to implement a process to ensure that currently segregated individuals are provided information about the alternatives to which they are entitled under the agreement, given opportunities that will allow them to make informed decisions about their options (such as visiting community placements or programs, speaking with community providers, and meeting with peers and other families), and that transition plans are developed and implemented when individuals choose more integrated settings.

16. Can the ADA’s integration mandate be enforced through a private right of action? A: Yes, private individuals may file a lawsuit for violation of the ADA’s integration mandate. A private right of action lies to enforce a regulation that authoritatively construes a statute. The Supreme Court in Olmstead clarified that unnecessary institutionalization constitutes “discrimination” under the ADA, consistent with the Department of Justice integration regulation.

17. What is the role of protection and advocacy organizations in enforcing Olmstead? A: By statute, Congress has created an independent protection and advocacy system (P&As) to protect the rights of and advocate for individuals

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with disabilities. 20 Congress gave P&As certain powers, including the authority to investigate incidents of abuse, neglect and other rights violations; access to individuals, records, and facilities; and the authority to pursue legal, administrative or other remedies on behalf of individuals with disabilities. 21 P&As have played a central role in ensuring that the rights of individuals with disabilities are protected, including individuals’ rights under title II’s integration mandate. The Department of Justice has supported the standing of P&As to litigate Olmstead cases.
18. Can someone file a complaint with the Department of Justice regarding a violation of the ADA and Olmstead? A: Yes, individuals can file complaints about violations of title II and Olmstead with the Department of Justice. A title II complaint form is available on-line at www.ADA.gov and can be sent to:
U.S. Department of Justice Civil Rights Division
950 Pennsylvania Avenue, NW Disability Rights Section - NYAV
Washington, DC 20530
Individuals may also call the Department’s toll-free ADA Information Line for information about filing a complaint and to order forms and other materials that can assist you in providing information about the violation. The number for the ADA Information Line is (800) 514-0301 (voice) or (800) 514-0383(TTY).
In addition, individuals may file a complaint about violations of Olmstead with the Office for Civil Rights at the U.S. Department of Health and Human Services. Instructions on filing a complaint with OCR are available at http://www.hhs.gov/ocr/civilrights/complaints/index.html.

1 42 U.S.C. § 12101(b)(1). 2 42 U.S.C. § 12101(a)(2). 3 42 U.S.C. § 12132. 4 See 42 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250, 45 Fed. Reg. 72995 (1980), reprinted in 42 U.S.C. § 2000d-1. Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination. 29 U.S.C § 794(a) (“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”). Claims under the ADA and the Rehabilitation Act are generally treated identically. 5 28 C.F.R. § 35.130(d) (the “integration mandate”). 6 28 C.F.R. Pt. 35, App. A (2010) (addressing § 35.130). 7 Olmstead v. L.C., 527 U.S.at 607. 8 Id. at 600-01. 9 28 C.F.R.§ 35.130(b)(7). 10 Id.; see also Olmstead, 527 U.S. at 604-07. 11 28 C.F.R. pt. 35 app. A (2010). 12 See 28 C.F.R. § 35.130(b)(1) (prohibiting a public entity from discriminating “directly or through contractual, licensing or other arrangements, on the basis of disability”); § 35.130(b)(2) (prohibiting a public entity from “directly, or through contractual or other arrangements, utilizing criteria or methods of administration” that have the effect of discriminating on the basis of disability”). 13 Olmstead, 527 U.S. at 598; 28 C.F.R. 35.130(d). 14 See CMS, Olmstead Update No. 4, at 4 (Jan. 10, 2001), available at https://www.cms.gov/smdl/downloads/smd011001a.pdf. 15 Id. 16 28 C.F.R. § 35.130. 17 See U.S. Dept. of Justice, ADA Title II Technical Assistance Manual § II-3.6200. 18 Olmstead, 527 U.S. at 604.
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19 HCBS waivers may cover a range of services, including residential supports, supported employment, respite, personal care, skilled nursing, crisis services, assistive technology, supplies and equipment, and environmental modifications. 20 42 U.S.C. §§ 15001 et seq. (Developmental Disabilities Assistance and Bill of Rights Act, requiring the establishment of the P&A system to protect and advocate for individuals with developmental disabilities); 42 U.S.C. § 10801 et seq. (The Protection and Advocacy for Individuals with Mental Illness Act, expanding the mission of the P&A to include protecting and advocating for individuals with mental illness) 21 42 U.S.C. §§ 10805, 15043.
PDF Version | ADA.gov | Civil Rights Division

http://www.ada.gov/olmstead/q&a_olmstead.htm
last updated June 22, 2011

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Exhibit 20 37 La. Reg. 1490-91 (June 20, 2011)
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trended forward for direct care services (plus 70 percent of any direct care incentive added to the rate). The Medicaid Program will recover the difference between the direct care floor and the actual direct care amount expended. If a provider receives an audit disclaimer, the cost settlement for that year will be based on the difference between the direct care floor and the lowest direct care per diem of all facilities in the most recent audited and/or desk reviewed database trended forward to the rate period related to the disclaimer.
D. Support Coordination Services Reimbursement. Support coordination services previously provided by ADHC providers and included in the rate, including the Minimum Data Set Home Care (MDS/HC), the CPOC and home visits will no longer be the responsibility of the ADHC provider. Support coordination services shall be provided as a separate service covered in the ADHC Waiver. As a result of the change in responsibilities, the rate paid to ADHC providers shall be adjusted accordingly.
1. - 2. Repealed. E. New Facilities, Changes of Ownership of Existing Facilities, and Existing Facilities with Disclaimer or NonFiler Status
1. New Facilities are those entities whose beds have not previously been certified to participate, or otherwise have participated, in the Medicaid program. New facilities will be reimbursed in accordance with this Rule and receiving the direct care, care related, administrative and operating, property rate components as determined in §2915.B.1 - §2915.B.7. These new facilities will also receive the state-wide average transportation rate component, as calculated in §2915.B.7.e.i.(a), effective the preceding July 1.
2. A change of ownership exists if the beds of the new owner have previously been certified to participate, or otherwise have participated, in the Medicaid program under the previous owner’s provider agreement. Rates paid to facilities that have undergone a change in ownership will be based upon the rate paid to the previous owner for all rate components. Thereafter, the new owner’s data will be used to determine the facility’s rate following the procedures in this rule.
3. Existing providers that have been issued an audit disclaimer, or are a provider who has failed to file a complete cost report in accordance with §2903, will be reimbursed based upon the statewide allowable quarter hour median costs for the direct care, care related, administrative and operating, and property rate components as determined in §2915.B.1 - §2915.B.7. The transportation component will be reimbursed as described in §2915.B.7.e.iii.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2170 (October 2008), repromulgated LR 34:2575 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 37:
Implementation of the provisions of this Rule may be contingent upon the approval of the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), if it is determined that submission to CMS for review and approval is required.

Interested persons may submit written comments to Don Gregory, Bureau of Health Services Financing, P.O. Box 91030, Baton Rouge, LA 70821-9030. He is responsible for responding to inquiries regarding this Emergency Rule. A copy of this Emergency Rule is available for review by interested parties at parish Medicaid offices.

1106#053

Bruce D. Greenstein Secretary

DECLARATION OF EMERGENCY
Department of Health and Hospitals Bureau of Health Services Financing

Home and Community-Based Services Waivers Elderly and Disabled Adult Waiver
Emergency Opportunities and Reimbursement Methodology (LAC 50:XXI.8105, 9101, 9107-9121)

The Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amend LAC 50:XX1.8105, 9101 and adopts §§9107-9121 in the Medical Assistance Program as authorized by R.S. 36:254 and pursuant to Title XIX of the Social Security Act and as directed by Act 11 of the 2010 Regular Session of the Louisiana Legislature which states: “The secretary is directed to utilize various cost containment measures to ensure expenditures in the Medicaid Program do not exceed the level appropriated in this Schedule, including but not limited to precertification, preadmission screening, diversion, fraud control, utilization review and management, prior authorization, service limitations, drug therapy management, disease management, cost sharing, and other measures as permitted under federal law.” This Emergency Rule is promulgated in accordance with the provisions of the Administrative Procedure Act, R.S. 49:953(B)(1) et seq., and shall be in effect for the maximum period allowed under the Act or until adoption of the final Rule, whichever occurs first.
As a result of a budgetary shortfall in state fiscal year 2009, the department amended the provisions governing the reimbursement methodology for the Elderly and Disabled Adult (EDA) Waiver to reduce the reimbursement rates paid for designated services (Louisiana Register, Volume 35, Number 9).
As a result of a budgetary shortfall in state fiscal year 2011, the department promulgated an Emergency Rule which amended the provisions governing the reimbursement methodology for EDA Waiver services to further reduce the reimbursement rates for personal assistance and adult day health care services and adopted provisions governing the reimbursement for adult day health care services (Louisiana Register, Volume 36, Number 8).
The Department now proposes to amend the August 1, 2010 Emergency Rule to adopt provisions to allow for emergency waiver opportunities for individuals who require emergency waiver services, and to revise the reimbursement methodology for adult day health care services to implement a quarter hour reimbursement rate. This action is being taken to avoid a budget deficit in the medical assistance

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programs and to promote the health and welfare of EDA Waiver recipients.
Effective July 1, 2011, the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amend the provisions of the August 1, 2011 Emergency Rule governing the Elderly and Disabled Adult Waiver.
Title 50 PUBLIC HEALTHMEDICAL ASSISTANCE Part XXI. Home and Community Based Services
Waivers Subpart 7. Elderly and Disabled Adults Chapter 81. General Provisions §8105. Programmatic Allocation of Waiver Opportunities A. - B.1. … 2. individuals diagnosed with Amyotrophic Lateral Sclerosis (ALS), also known as Lou Gehrig’s disease; 3. individuals admitted to a nursing facility who are approved for a stay of more than 90 days; 4. - 5. … C. If an applicant is determined to be ineligible for any reason, the next individual on the registry is notified as stated above and the process continues until an individual is determined eligible. An EDA Waiver opportunity is assigned to an individual when eligibility is established and the individual is certified. D. Notwithstanding the priority group provisions, 75 EDA Waiver opportunities are reserved for qualifying individuals who have been diagnosed with Amyotrophic Lateral Sclerosis (ALS). Qualifying individuals who have been diagnosed with ALS shall be offered an opportunity on a first-come, first-serve basis. E. Notwithstanding the priority group provisions, up to 100 EDA Waiver opportunities may be granted to qualified individuals who require emergency waiver services. These individuals shall be offered an opportunity on a first-come, first-serve basis. 1. To be considered for an emergency waiver opportunity, the individual must currently receive the maximum amount of services allowable under the Long Term Personal Care Services Program and require institutional placement, unless offered an emergency waiver opportunity. 2. The following criteria shall be considered in determining whether or not to grant an emergency waiver opportunity: a. support through other programs is either unavailable or inadequate; b. the death or incapacitation of an informal caregiver leaves the person without other supports; c. the support from an informal caregiver is not available due to a family crisis; or d. the person lives alone and has no access to informal support. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 30:1699 (August 2004), amended by the Department of Health and Hospitals, Office of the Secretary, Division of Long Term Supports and Services, LR 32:1245 (July 2006), amended by the Department of Health and Hospitals, Office

of Aging and Adult Services, LR 34:1030 (June 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:2447 (November 2009), amended LR 37:900 (March 2011), LR 37: Chapter 91. Reimbursement Subchapter A. General Provisions §9101. Reimbursement Methodology
A. Reimbursement for EDA Waiver services, with the exception of ADHC services, shall be a prospective flat rate for each approved unit of service provided to the recipient. Adult day health care services shall be reimbursed according to the provisions of Subchapter B of this Chapter 91.
B. – C. … D. Effective for dates of service on or after August 1, 2010, the reimbursement rates for personal assistance services in the EDA Waiver shall be reduced by 2 percent of the rates on file as of July 31, 2010. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:251 (February 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:1893 (September 2009), amended LR 37: Subchapter B. Adult Day Health Care Services
Reimbursement §9107. General Provisions
A. Adult day health care services shall be reimbursed a per quarter hour rate for services provided under a prospective payment system (PPS). The system shall be designed in a manner that recognizes and reflects the cost of direct care services provided. The reimbursement methodology is designed to improve the quality of care for all EDA waiver recipients by ensuring that direct care services are provided at an acceptable level while fairly reimbursing the providers.
B. Reimbursement shall not be made for EDA Waiver services provided prior to the Department’s approval of the CPOC.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 37: §9109. Cost Reporting
A. Cost Centers Components 1. Direct Care Costs. This component reimburses for
in-house and contractual direct care staffing and fringe benefits and direct care supplies.
2. Care Related Costs. This component reimburses for in-house and contractual salaries and fringe benefits for activity and social services staff, raw food costs and care related supplies for activities and social services.
3. Administrative and Operating Costs. This component reimburses for in-house or contractual salaries and related benefits for administrative, dietary, housekeeping and maintenance staff. Also included are:
a. utilities; b. accounting; c. dietary; d. housekeeping and maintenance supplies; and e. all other administrative and operating type expenditures.

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Exhibit 21 Declaration of Mary Dunn
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DECLARATION OF MARY DUNN Mary Dunn subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is Mary Dunn. I am 81 years old, and I live alone in my home in Monroe, Louisiana.
2. I have osteoporosis, arthritis, heart problems and have had back surgery. I had back surgery, when I was about thirty years old, to correct a spinal problem that I had at birth. It does not seem that my back ever healed properly. Due to the combination of the osteoporosis, the arthritis and the back surgery, I am often in excruciating pain. I take medication to help with the pain. The effects of the medication, and the fact that I am getting older, makes it hard for me to remember things. The facts in this declaration are true to the best of my knowledge and recollection.
3. I am eligible for and receive Medicaid. I have also been found eligible for and receive Long-term Personal Care Services.
4. In September of 2010, I was receiving thirty-eight hours per week of Long-term Personal Care Services. I received notification sometime in May of 2011 that as of June 1, 2011, my hours would be reduced to twenty-nine hours per week.
5. At my request, the personal care worker I had at that time appealed for me. I do not know to whom she sent the appeal, and I do not know when she sent the appeal. I do not remember attending an appeal hearing.ecause of the medication I take and my problems remembering things, I was not able to deal with the appeal
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personally. I do not remember being notified that if I appealed and received 32 hours of LT-PCS, I would be able to apply for an emergency waiver slot. 6. On October 7, 2011, I met with someone, who I assumed worked for the state of Louisiana, about my need for more hours through Long-term Personal Care Services. After our discussion, I was awarded one more hour per week, and I am now approved for thirty hours per week. 7. I need thirty-eight to forty hours to continue to live in my home and remain independent. 8. I need assistance with transferring from and to my bed and my wheelchair. I need help transferring to and from the toilet and need help cleaning myself after toileting. My worker also helps me bathe, dress and perform all grooming tasks. I also need assistance with meal preparation, laundry, household chores and shopping. 9. In the morning my personal care worker comes to my home to help me. She begins her work by helping me to bathe, tend to personal hygiene tasks and get dressed. This takes an hour and thirty minutes to one hour and forty-five minutes. She then helps me get into my wheelchair and that takes about fifteen minutes. 10. As I said above, due to the combination of the osteoporosis, the arthritis and the back surgery, I am often in excruciating pain. During those times I return to bed to lie down in the late morning. Lying down is sometimes the only position that gives me some relief from the pain. This means that it takes another twenty to thirty minutes to help me transfer in and out of bed.
2 Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 46 of 202

11. I use a motorized wheelchair when I am not in bed. I can maneuver the chair myself once I am in it, but I cannot get in and out of the chair on my own. I do not remember when I started using the wheelchair. It seems that it was three to five years ago.
12. My personal care worker prepares my breakfast after helping me get into my wheelchair. Preparing my meal and cleaning the kitchen after I eat takes about thirty minutes.
13. I need help eating when I am too weak to hold the utensils. When this happens, my worker must spend an extra fifteen minutes or so feeding me.
14. She fixes my lunch before she leaves and also gets something for dinner prepared in a crock-pot or makes sure that a frozen meal bought from the grocery is readily available. Preparing the meals and cleaning the kitchen after preparation takes about forty-five minutes.
15. During the day, I will go to the toilet once or twice. My personal care worker helps me to get on and off the toilet, as well as helps me to clean myself. Each of these tasks takes approximately fifteen minutes.
16. I am incontinent, and my worker assists me with pads and to clean myself after accidents. If the worker is not around when I have an accident, I have to wait until she arrives the next day to be cleaned. I try to control my incontinence with medication and fluid intake, but the accidents still occur.
17. When I do have a bowel accident and my personal care worker is with me, she helps clean me and change my pad. This activity can take approximately thirty minutes.
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18. If you add the time that I need from my worker on a daily basis, you will see that I need approximately four hours and fifteen minutes each day. This means that if I am not feeling well and move slower, something doesn’t get done. What doesn’t get done can be a hygiene task, preparation of a meal, or assisting me back into and out of bed in the late morning.
19. It also means that when I have shopping, laundry or household chores that must be done, something else doesn’t get done during that day. If I have to go to a doctor, which seems to be about once each month, my personal care worker accompanies me. On those days, she has no time to prepare my meals and may not have time to do all of my personal care.
20. I live approximately 15 minutes from the closest grocery store, so grocery shopping takes approximately one and a half hours. It takes longer if I go with my worker because I must use my manual wheelchair since my worker cannot transport my motorized chair.
21. My personal care worker must do all of my household chores, including cleaning my home and doing my laundry. She also assists me with my mail and paying my bills. I seem to be forgetting things lately, so she helps to make sure I don’t forget anything important.
22. Assisting me with household chores, bill paying and laundry can take another two hours per week.
23. I have a bedside commode, which I attempt transfer to and from at night or whenever I am in bed, but I have fallen several times. Some of the falls have taken place during times of the day when if my hours had not been reduced, my
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personal are worker would have been with me. After my most recent fall, which was only about three weeks ago, I fractured my hip; however, the doctor does not recommend surgery because of the affects the anesthesia may have on my heart. 24. Since that fall, I find I have had great difficulty to transferring to the commode and have had accidents when my worker wasn’t with me, which means I wasn’t cleaned and changed for many hours. 25. With the reduction in hours, my worker does not have time to prepare proper meals for me. I often have to buy food that is already prepared, which, often times, does not follow the diet that has been suggested by my doctor as a result of my heart problems. 26. Presently, I only receive sponge baths because I have a wound on my foot that will not heal and the doctor things might be cancerous. My doctor has said that I cannot submerge my foot into water. Once I am able to have full baths again, I am not sure my worker will have time to fully bathe me on a daily basis because in the past each bath took forty-five minutes to an hour because my personal care worker had to undress me, transfer me to the bath, wash me, dry me, dress me and transfer me back to the wheelchair. 27. I have a home health nurse that provides wound care for the wound on my foot, and also checks my vital signs. 28. I had eight children. Two died as infants, One of my daughters died when she was an adult as a result of seizures, and my youngest son died in 2010 from cancer. I have four living children. Three of them do not provide me with any help: a son who lives in about 22 miles away in Rayville, and who has health
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problems similar to mine; a daughter who lives in Choudrant, LA and cannot

drive due to seizures; and a second daughter in Rayville that I only see one or two

times each year.

29. I have one son who lives in the same apartment complex as I do; however, he has

osteoporosis and rheumatoid arthritis. He can and does check in on me, but he

cannot lift me due to his own health issues, nor can he help with toileting or other

ADLs. When I am not feeling well, he sometimes stays with me at night;

however, he is often in the hospital attending to his own health problems.

30. When my son is able, he helps me by putting the dinner that was prepared earlier

by my personal care worker on a plate, and putting the plate of food on the table

for me.

31. My husband died approximately twenty years ago. I have no other family that

can assist me.

32. If I continue to receive only thirty hours per week, I believe my health will

deteriorate and I will be forced to go into a nursing home.

33. I also wish to continue to control my own life and do not want to move to a

nursing home where that opportunity will be taken from me.

34. I do not think I should be forced into a nursing home. I know from past

experience that I can remain healthy and safe in my own home, if I am provided

with adequate assistance. I want to stay in my own home.

/s/ Mary Dunn Mary Dunn

11-9-2011 Date

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Exhibit 22 Declaration of Bessie Foreman
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DECLARATION OF BESSIE FOREMAN Bessie Foreman subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is Bessie Foreman. I live alone in Iowa, Louisiana. I am 86 years old. 2. I am eligible for and receive Medicaid. Until May of 2011, I was receiving thirty-
eight hours per week of Long-Term Personal Care Services. I have been receiving Long-term Personal Care Services for approximately seven years. 3. In March, I was told that my hours would be reduced from thirty-five to twentysix hours per week. I appealed that decision, and on or around May 1, 2011, my hours were reduced to thirty-two hours per week pending my appeal hearing. 4. In May of 2011, my daughter participated in my hearing, which was held over the phone. Because the hearing was over the phone, I would not have been able to hear the proceedings, so my daughter represented me. My daughter participated from my home using my phone. After the hearing she told me that the Judge said that the state’s decision to reduce my hours would be upheld. 5. My hours were reduced to 26 hours per week in June of 2011. 6. Since May of 2011, my daughter has been doing what my worker does not have time to do; however, this is only temporary, while we try to find out if there is any way my services can be restored to 38 hours a week. If my hours of home care have to stay at 26 per week, I will have to enter a nursing home. 7. Right now, my daughter helps me to get dinner, she assists me to clean myself after incontinence episodes and redress. My daughter also helps to get me ready for bed in the evening. In addition, to save time, my daughter has been helping
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my personal care worker bathe me, so that there is time for the worker to complete other tasks such as meal preparation, household chores and assisting me with toileting. 8. My daughter and I have had discussions about me needing more assistance than the twenty-six hours per week that I am provided and the possibility of me entering a nursing home. If I do not have more help, I do not think I can avoid having to enter a nursing home. 9. My daughter cannot continue to provide the help I need to stay in my home. She lives approximately thirty miles from my home. She has two part-time jobs, and she has had to cut back on hours at one of these jobs. She needs to return to working the hours she was working before my hours were reduced. She has many friends and a boyfriend that she enjoys seeing in the evenings and on weekends and she has not been able to spend time with these friends because she assists me every morning and every night. 10. My daughter will continue to be there for me in an emergency, and will continue to see me a few times each week, but she has told me that she cannot and will not keep assisting me on a daily basis. If my hours of LT-PCS are not restored, I will have no choice but to enter a nursing home. 11. I have heart problems, diabetes, arthritis, asthma, cataracts in both eyes, and I am hard of hearing. I have had right knee replacement and three back surgeries. I had surgery on my right arm, which has left my right arm fairly immobile. I am also obese.
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12. With these impairments, I cannot do anything for myself, other than feed myself. If I am alone, I cannot walk to get a glass of water or get food, cannot get on and off the toilet, cannot dress or undress myself and cannot rise to a standing position. If I am in my wheelchair, I cannot propel the chair very far without becoming completely fatigued. In addition, I do not have the strength to prepare meals, even simple meals such as a sandwich, do my laundry or my other household chores.
13. Since my hours have been reduced, my personal care worker has not been able to attend to all of my care needs. She leaves at noon everyday, which means she only helps me to get one meal each day, rather than the three meals and snacks I should have because of my diabetes. She is not available to help me use the toilet in the afternoon or evening, undress me and dress me for bed, or help me into bed.
14. In the morning, my personal care worker helps me to get out of bed, bathe, brush my teeth, brush my hair, wash my face, prepare my breakfast, and while I am eating she attends to household chores. Since my hours have been reduced, I no longer get a bath daily. Typically, I bathe only three times each week. Because I am obese and have incontinent episodes, I need to bathe daily, and I think that it would be healthier for me to do so.
15. Because my hours have been reduced, my daughter has been assisting my personal care worker to bathe me. Bathing, even with my daughter assisting my personal care worker, takes approximately 45 minutes to one hour, because I need help getting into the shower then my worker and my daughter bathe me. Once I am bathed, my worker and my daughter then help me out of the shower, dry me
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and dress me. Without my daughter’s assistance this task would probably take approximately one hours and thirty minutes. 16. I am incontinent of bowel and bladder. When I have accidents, I need immediate assistance to clean myself. My personal care worker is not with me past noon, so she is not able to assist me. If my daughter is not with me when this happens, I have had to wait for her to return to my home or have had to wait until my personal care worker arrives in the morning until I can be cleaned. 17. I have two to three incontinent episodes each day and must be cleaned after each accident. Because of my size, it takes either my personal care worker or my daughter approximately thirty minutes to undress me, clean me, change my pad, redress me. 18. I believe that the surgeries and my arthritis are the major reasons that I can no longer physically care for myself. My doctor has told me that my left knee is in need of replacement, too, but this surgery is not yet scheduled. 19. I have great difficulty walking and must use a wheelchair, a cane or a walker around my home. When I leave my home, I always use a wheelchair. I do not walk unattended for fear of falling. It seems that I fall almost once a month, and as a result of a fall in March of 2010, I broke my ankle. I am fearful of what a fall could do to my physical condition, so I always try to have someone with me when I walk. 20. When I use the wheelchair, I have difficulty propelling my own, so whenever I want to move in the chair, someone usually pushes me.
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21. If there is a table or something to hang on to, I can move my wheelchair by pulling myself along the table or other object and moving by chair that way. I cannot even do this for long distances because I become fatigued.
22. When I stand, I become very dizzy and must wait for that feeling to subside before moving, again. This is another reason, I do not like to stand or attempt to transfer into my bed or any other surface when I am alone.
23. As a result of the back surgeries, I no longer walk completely erect. My body is always in a position of leaning forward when I am standing. I also walk very slowly.
24. I take 18 different medications, including insulin injections. Due to my diabetes and the number of medications that I take, it is important that I eat healthy meals and snacks on a regular schedule. Because my worker is only here until noon, she is only able to give me breakfast and sometimes a mid-morning snack. My worker prepares my lunch and dinner before leaving my home, but I must depend on my daughter to get my meals and place them on the table.
25. My husband died in 1998. When he was living we both worked hard to raise our children, and make sure we could provide for them. We owned a grocery store and were also rice farmers.
26. Only the daughter I have mentioned assists me with my care. None of my other children assist me with my care, and I have no other family that assists me.
27. If I do not get more assistance, I am afraid that a nursing home will be my only option.
28. I do not want to go into a nursing home.
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29. After raising a family and assisting my husband with the family businesses, I thought that I could live the remaining years of my life in my own home. I believe that I should have the opportunity to do just that. And, I believe I should be provided with the necessary assistance to do that.
30. I do not believe I would receive the assistance I need to get out of bed on a regular basis and believe that my health would decline as a result if I were in a nursing home.
31. I want to continue living in my own home, where I am relatively healthy and in control of my own life.

/s/ Bessie Foreman Bessie Foreman

11/9/11 Date

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Exhibit 23 Declaration of Estelle Curtain
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Exhibit 24 Declaration of Mitchell LaPlante
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1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA 2
________________________________________

3

HELEN PITS, KENNETH ROMAN,

)

4 DENISE HODGES, and RICKII AINEY, on

)

C.A. No.3:10-cv-00635-JJB-SCR

behalf of themselves and all others similarly

)

5 situated,

)

Judge James J. Brady

6 Plaintiffs,

)

)

Magistrate Judge

7 v.

)

Stephen C. Riedlilnger

)

8

)

BRUCE GREENSTEIN, in his official

)

9 capacity as Secretary of the Louisiana

)

Department of Health and Hospitals, and

)

10 LOUISIAN DPEARTMENT OF HEALTH

)

11 AND HOSPITALS,

)

)

12 Defendants.

)

) 13 ________________________________________ )

14

DECLARATION OF MITCHELL LAPLANTE

15 I, Mitchell LaPlante, hereby verify that the followings statements are true and correct, to
16 the best of my knowledge, information and belief. I understand that false statements herein are
17

18 made subject to the penalties of 28 U. S.C. § 1746 relating to unsworn falsification to authorities.

19

1. I am a Professor at the University of California San Francisco Department of Social and

20

Behavioral Sciences and the Institute for Health and Aging. A true and correct copy of

21

my curriculum vitae is attached hereto as Exhibit A.

22

2. My academic research has addressed the demography and epidemiology of health and

23 disability and long-term care, how the prevalence of disability varies by race and
24
ethnicity and by state; the relationship of disability with various chronic illness and 25

26

impairments; the relationship of disability to use of health care and health care

27

expenditures; the relationship of disability and insurance rates; employment of

1

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1

individuals with disabilities; the housing of individuals, families and children with

2

disabilities; the use of, and unmet need for, assistive technology; and the use of and

3 unmet need for personal assistance with activities of daily living and adverse
4 consequences associated with such unmet needs.
5
3. I have served, by invitation, on several high-ranking national and international expert 6

7

panels in the fields of disability research and policy, including the Institute of Medicine,

8

the National Academy of Social Insurance, the National Institutes on Health, the Social

9

Security Administration Disability Research Institute Advisory Panel, the United Nations

10

and the World Health Organization. I have advised Congress on the costs of the

11 Community Choice Act and similar legislation, testified before the United States Senate
12 Finance Committee, and advised the Congressional Budget Office and Centers for
13

14

Medicare and Medicaid Services on the costs and cost effectiveness of community long

15

term services and support. I have also served as a consultant to the State of California

16

Medicaid Infrastructure Grant and the California Governor’s Committee on Disability. I

17

was a member of the Institute of Medicine study panel that produced the book Disability

18

in America: Toward a National Agenda for Prevention and the National Academy of

19 Social Insurance Disability Policy Panel. In 2007, I received a Commendation Award
20
from the National Association of Rehabilitation Research and Training Centers 21

22

recognizing my career accomplishments in disability research, teaching, and policy. I am

23

recognized as one of the foremost researchers in the field of disability in the United

24

States and internationally. As Co-Principal Investigator of the Center on Personal

25

Assistance Services, a Rehabilitation Research and Training Center funded primarily by

26 the National Institute on Disability and Rehabilitation Research, and Co-Director of the
27

2

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1

UCSF Disability Statistics Center, I have been consulted widely as an authority on

2

disability statistics, epidemiology, and disability policy.

3 4. I am a member of many professional organizations; have given numerous juried and
4 invited presentations at professional society conferences; am a popular reviewer for
5
several professional journals, currently on the Editorial Board of the Disability and 6

7

Health Journal and the Journals of Gerontology: Social Sciences and previously on the

8

Editorial Board of the Disability Studies Quarterly.

9

5. I am the current recipient of research grants from the National Institute on Disability and

10

Rehabilitation Research, establishing the Personal Assistance Services Rehabilitation

11 Research and Training Center, and the San Diego State University Research Foundation.
12 I have previously received research grants from the National Institute on Aging, the
13

14

Social Science Research Council, the United States Departments of Health and Human

15

Services and Education, and the California Department of Health Care Services Office of

16

Disability and Health.

17

6. I am the author or co-author of numerous peer reviewed publications on disability and

18

personal assistance needs including Estimating paid and unpaid hours of personal

19 assistance services in activities of daily living provided to adults living at home, 37
20
Health Services Research 397-415 (2002); Unmet need for personal assistance services: 21

22

estimating the shortfall in hours of help and adverse consequences, 59(2) J Gerontol B

23

Psychol Sci Soc Sci S98-S108 (2004); Living quarters and unmet need for personal care

24

assistance among adults with disabilities, 60(4) J Gerontol B Psychol Sci Soc Sci. S205-

25

213 (2005); Estimating the expense of a mandatory home- and community-based

26 personal assistance services benefit under Medicaid, 19(3) Journal of Aging & Social
27

3

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1

Policy 47-64 (2007); Do non-institutional long-term care services reduce Medicaid

2

expenditures? 28(1) Health Affairs 262-272 (2009); and Long term care in the United

3 States: Who gets it, who provides it, who pays, and how much does it cost?, 29(1) Health
4 Affairs 11-21 (2010).
5
7. I recently published, with co-authors, the results of a study of unmet need for personal 6

7

assistance services, which relied on data from the National Health Interview Survey, a

8

large, nationally representative survey of individuals living in households conducted by

9

the Census Bureau for the United States National Center for Health Statistics (LaPlante,

10

Kaye, Kang, & Harrington, 2004). For some individuals, unmet need occurred when they

11 needed help with activities of daily living but did not receive any help at all. However,
12 that was rare. Most people with unmet needs for personal assistance got some help, but
13

14

they lacked help with certain activities (such as getting help with personal care like

15

bathing and dressing, but not getting any help with meal preparation), or they did not get

16

sufficient help in one or more activities (such as only getting help with preparing

17

breakfast but not other meals). We found that, when elderly and disabled individuals who

18

were in need of personal assistance services with activities of daily living did not have

19 adequate levels of help, they had higher rates of adverse consequences in 48 of 53
20
measures tested than those whose needs were met, including experiencing discomfort 21

22

(such as going hungry), wasting (losing weight unintentionally and dehydration), injuries

23

due to falls, burns, bedsores, contractures (limbs that cannot be straightened out) and

24

dissatisfaction with help (such as not being satisfied with scheduled hours or availability

25

of help when it is actually needed).

26

27

4

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1

8. These problems are particularly acute for disabled individuals who live alone rather than

2

with family members. Individuals who live alone report higher unmet needs than those

3 living with others (31 percent versus 19 percent) (LaPlante, et al., 2004) and experience
4 higher rates of adverse consequences. Such individuals are highly vulnerable and their
5
more detached informal networks do not compensate for lack of access to or reductions in 6

7

public services.

8

9. Having inadequate levels of help compromises the safety, comfort, and hygiene of

9

individuals requiring help with ADLs and IADLs, reducing their ability to live

10

independently and increasing their risk of institutionalization and death.

11 10. Unmet needs are especially serious for persons needing help with activities of daily living
12 (“ADLs”) such as when individuals go unbathed, remain in the same clothing for an
13

14

extended period, are left in a bed or chair longer than is acceptable, or are unassisted

15

when they need to go to the bathroom or eat. These activities involve satisfying primary

16

biological functions that, if not fulfilled, cannot be tolerated for long and have immediate

17

and serious consequences leading to death, institutionalization, injury, or worsening

18

health (Allen & Mor, 1997; Gaugler, Kane, Kane, & Newcomer, 2005; LaPlante, et al.,

19 2004).
20
11. A link between unmet need in ADLs and increased risk of death has been established in a 21

22

longitudinal study of older persons with dementia (Gaugler, et al., 2005). Persons with

23

two or more unmet ADL needs (measured as not getting any or enough help as assessed

24

by caregivers) were 1.4 times as likely to die within 18 months, controlling for age,

25

gender, and other demographics, severity of disability, and cognitive and behavioral

26 functioning. The study did not assess unmet needs in instrumental activities of daily
27

5

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1

living (“IADLs”). While the study is limited to persons with dementia, it is important in

2

demonstrating that many persons with severe disabilities are at higher risk of death when

3 their needs go unmet.
4 12. Gaugler and colleagues (2005) also established a link between unmet need in ADLs and
5
being admitted within 18 months to a nursing home. Individuals with unmet needs in two 6

7

or more ADLs (measured as not getting any or enough help) were 1.8 times as likely to

8

enter a nursing home than those whose needs were met, controlling for age, gender, and

9

other demographics, severity of disability, and cognitive and behavioral functioning.

10

13. A retrospective mortality study of older persons who needed home care before their death

11 (Nanda, Bourbonniere, Wetle, & Teno, 2010) investigated the perceptions of the
12 decedents’ survivors, and found that 23 percent experienced unmet needs for home care
13

14

before their death, and that after adjusting for age, gender, insurance, education, race,

15

cause of death, functional status, and place of residence, decedents who were reported as

16

not receiving enough care were 1.8 times as likely to die in a nursing home than those

17

who had adequate care.

18

14. One study has found that the rate of hospital admission was 1.5 times as high for frail

19 older persons with unmet needs (measured as not getting any or enough help) prior to
20
their enrollment in a formal services program and 1.3 times as high 6 months after 21

22

enrollment (Sands, et al., 2006). However, after 6 months, the provision of adequate

23

services eliminated the higher risk of hospitalization for those who had entered the study

24

with unmet needs. In this study, unmet need was measured as the absence of any help in

25

one or more ADLs rather than insufficient help. The study suggests that having adequate

26 help with ADLs is protective against hospitalization.
27

6

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1

15. Higher rates of depression have been found among older persons with unmet needs in

2

IADLs and ADLs compared to those whose needs are met (Choi & McDougall, 2009). In

3 this study, unmet need was measured as not having enough help with formal services in
4 IADLs or ADLs, as well as lacking other formal supportive and enabling services.
5
16. While most studies have focused on unmet needs in ADLs, unmet needs in IADLs also 6

7

create adverse consequences that impact individuals’ paying their bills, keeping their

8

home clean and managed, communicating, managing their medications, and getting

9

around and participating in their communities. As a group, these may appear to be less

10

serious than unmet needs in ADLs, but in fact, some can be quite serious. Lack of help

11 managing medications can lead to dire health results if medications are not taken
12 appropriately, and lack of help to participate in social and community activities can lead
13

14

to isolation and depression. Lack of help shopping for groceries and preparing meals

15

elevates the risk of poor nutrition, which can lead to unintentional weight loss and

16

dehydration.

17

17. In summary, unmet need in IADLs and ADLs, are associated with numerous life

18

threatening adverse events, reduced mental and physical health, discomfort, and

19 diminished quality of life, all of which threaten the ability of individuals to live safely
20
and independently in their own homes. This is the case even if the unmet need in ADLs 21

22

or IADLs is temporary, but especially so if those unmet needs last over time. The

23

correlations with negative consequences are especially strong among persons with severe

24

levels of disability and those who live alone and lack familial support.

25

18. My colleagues and I have analyzed historical Medicaid spending patterns on institutional

26 services versus what are called home- and community-based services (HCBS) under
27

7

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1

Medicaid, including the Louisiana Medicaid program (Kaye, LaPlante, & Harrington,

2

2009). The Medicaid program is the primary financier of long term care for persons with

3 low incomes and assets. Medicaid requires all participating states to provide institutional
4 long term care services. Medicaid also allows states to provide home and community
5
based services as an option, one that is designed to allow states to provide long term care 6

7

more cost-effectively while allowing greater choice to individuals to live more

8

independently and in the least restrictive setting. Some states do not fully utilize the

9

options that are available to them, which results in the underfunding of community based

10

services and the overfunding of institutional services, a situation that is not cost-effective.

11 Research has shown that states that provide less home and community based services
12 have higher risks of institutionalization (Muramatsu et al., 2007). My colleagues and I
13

14

have also found that states that provide less home and community based services overpay

15

for institutional services, which is not cost effective (Kaye, LaPlante, & Harrington,

16

2009).

17

19. The state of Louisiana has, in the past decade, utilized several options to serve thousands

18

more individuals under the Medicaid personal care services program and under several

19 Medicaid waivers. In 2004, 10.6 % of the state of Louisiana’s Medicaid expenditures for
20
Aged and Disabled Adult long term services and supports went to community services 21

22

with the rest to institutions. By 2009, 32.5% of the state of Louisiana’s Medicaid

23

expenditures for Aged and Disabled Adults on long term services and supports went to

24

community services with the rest to institutions. Among all the states, Louisiana now

25

ranks in the middle in the amount of total Medicaid long term services and supports

26 expenditures that go to community based services. While Louisiana has shown much
27

8

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1

progress, the state still has more progress to make, as is suggested by the states of Oregon

2

and Washington which spent two-thirds or more of their total long term services and

3 supports budget for Aged and Disabled Adults on community services.
4 20. Based on an analysis of a decade of Medicaid spending data from several states, my
5
colleagues and I have observed that several states that have expanded home and 6

7

community-based services, as Louisiana has done over the past decade, have achieved

8

reductions in institutional spending and long-term cost savings (Kaye, LaPlante, &

9

Harrington, 2009). This is mainly attributable to the greater cost of institutional care as

10

compared to home and community-based care. A national study (Kitchener et al.: 2006)

11 showed that the average total public expenditure on a recipient of Medicaid home and
12 community-based services was substantially less per year than a person receiving
13

14

institutional services. However, cost savings have been offset in some states, including

15

Louisiana, when they have also increased institutional reimbursement rates (see separate

16

testimony of Dr. H. Stephen Kaye).

17

21. Providing more personal assistance services is not only cost-effective, it also reduces

18

unmet needs in the community and adverse consequences leading to hospitalization and

19 institutionalization. The reverse is also true. A state like Louisiana that has recently
20
developed and expanded its community-based long term care programs and that then 21

22

substantially reduces spending on home and community-based services, by limiting

23

hours, as Louisiana proposes to implement, is likely to experience an overall increase in

24

long-term care costs resulting from increased utilization of institutions and other costs

25

associated with increased levels of unmet needs (Mollica, Kassner, & Houser, 2009).

26

27

9

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1

22. Louisiana state has proposed to cap the number of hours in its Medicaid personal care

2

option program (“LT-PCS”) to 32 hours a week, where it had previously had a cap of 42

3 hours a week. Given the extremely restrictive eligibility limits for the LT-PCS program,
4 1 such a reduction in hours would result in actual care hours falling well below the level
5
that many people eligible for the program, particularly those with the most serious care 6

7

needs, require to avoid the adverse consequences detailed above, including discomfort

8

(such as going hungry), wasting (losing weight unintentionally and dehydration), injuries

9

due to falls, burns, bedsores, contractures (limbs that cannot be straightened out), risk of

10

institutionalization, and death.

11 23. The proposed reduction is of sufficient magnitude that it is likely to create unmet needs
12 and an increase in the many adverse consequences that are documented in the several
13

14

studies discussed in this declaration. The creation of unmet need is likely to increase

15

institutionalization and other health care costs, including hospitalization costs, resulting

16

from treating these unmet needs. While the average amount of hours cut may be as low as

17

3 hours a week, the reductions will be on the order of 7 to 10 hours a week for persons

18

who have already demonstrated the most acute needs for services. Thus, the reductions in

19 hours will have a disproportionate negative impact on individuals who have the most
20

21

22

23

24

25 1

Unlike many states, Louisiana requires that persons meet a nursing facility level of care

and demonstrate, according to objective criteria, that they face a substantial possibility of

26 deterioration in mental or physical condition or functioning if either home and community-based

services or nursing home services are not provided in less than 120 days. People who meet these

27 criteria are likely to need a substantial amount of assistance with ADLs, especially if they live

alone or otherwise lack unpaid care givers.

10

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 75 of 202

1

severe disabilities and individuals who live alone.

2

Executed this _2___ day of March, 2011 at San Francisco, California.

3

4

5

6

Mitchell LaPlante

7 References

8 Allen, S. M., & Mor, V. (1997). The prevalence and consequences of unmet need. Contrasts

9

between older and younger adults with disability. Medical Care, 35(11), 1132-1148.

10 Archer, K. R., Castillo, R. C., MacKenzie, E. J., & Bosse, M. J. (2010). Perceived need and
11 unmet need for vocational, mental health, and other support services after severe lower-
12
extremity trauma. Arch Phys Med Rehabil, 91(5), 774-780. 13

14 Choi, N. G., & McDougall, G. (2009). Unmet needs and depressive symptoms among low--

15

income older adults. J Gerontol Soc Work, 52(6), 567-583.

16 Gaugler, J. E., Kane, R. L., Kane, R. A., & Newcomer, R. (2005). Unmet care needs and key

17

outcomes in dementia. J Am Geriatr Soc, 53(12), 2098-2105.

18 Gibson, M., & Verma, S. (2006). Just Getting By: Unmet Need for Personal Assistance Services
19 Among Persons 50 or Older with Disabilities. Washington, DC: AARP Public Policy
20

21

Institute.

22 Gillespie, J., & Mollica, R. (2005). Streamlining Access To Home And Community-Based Services:

23

Lessons From Washington. New Brunswick, NJ: Rutgers Center for State Health Policy.

24 Grossman, B. R., Kitchener, M., Mullan, J. T., & Harrington, C. (2007). Paid personal assistance
25 services:an exploratory study of working-age consumers' perspectives. J Aging Soc
26 Policy, 19(3), 27-45.
27

11

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 76 of 202

1 Kaye, H. S., Chapman, S., Newcomer, R. J., & Harrington, C. (2006). The personal assistance

2

workforce: trends in supply and demand. Health Aff (Millwood), 25(4), 1113-1120.

3 Kaye, H. S., Harrington, C., & LaPlante, M. P. (2010). Long-Term Care in the United States:
4 Who gets it, who provides it, who pays, and how much does it cost? . Health Aff
5
(Millwood), 29(1), 1-11. 6

7 Kaye, H. S., LaPlante, M. P., & Harrington, C. (2009). Do Non-Institutional Long-Term Care

8

Services Reduce Medicaid Expenditures? Health Affairs, 28(1), 262-272.

9 Kitchener, M., Ng, T., Miller, N., & Harrington, C. (2006). Institutional and community-based long-

10

term care: a comparative estimate of public costs. J Health Soc Policy, 22(2), 31-50.

11 LaPlante, M. P. (2010). The Classic Measure of Disability in Activities of Daily Living Is Biased

12

by Age but an Expanded IADL/ADL Measure Is Not. J Gerontol B Psychol Sci Soc Sci,

13

(published ahead of print January 25, 2010, doi:10.1093/geronb/gbp129).

14 LaPlante, M. P., Harrington, C., & Kang, T. (2002). Estimating paid and unpaid hours of
15 personal assistance services in activities of daily living provided to adults living at home.
16 Health Services Research, 37(2), 397-415.
17
18 LaPlante, M. P., Kaye, H. S., Kang, T., & Harrington, C. (2004). Unmet need for personal

19

assistance services: estimating the shortfall in hours of help and adverse consequences.

20

Journal of Gerontology: Social Sciences, 59(2), S98-S108.

21 Lawton, M. P., & Brody, E. M. (1969). Assessment of older people: self-maintaining and

22

instrumental activities of daily living. The Gerontologist, 9(3), 179-186.

23 Lima, J. C., & Allen, S. M. (2001). Targeting risk for unmet need: not enough help versus no
24
help at all. Journal of Gerontology: Social Sciences, 56(5), S302-310. 25

26 Manton, K. G. (1989). Epidemiological, Demographic, and Social Correlates of Disability

27

among the Elderly. The Milbank Quarterly, 67, 13-58.

12

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 77 of 202

1 Mollica, R. L., Kassner, L. W., & Houser, A. (2009). Taking the Long View: Investing in Medicaid

2

Home and Community-Based Services Is Cost-Effective Washington, DC: American Association

3

of Retired Persons.

Mullan, J. T., Grossman, B. R., Hernandez, M., Wong, A., Eversley, R., & Harrington, C. 4

5

(2009). Focus group study of ethnically diverse low-income users of paid personal

6

assistance services. Home Health Care Serv Q, 28(1), 24-44.

7 Muramatsu, N., Yin, H., Campbell, R. T., Hoyem, R. L., Jacob, M. A., & Ross, C. O. (2007). Risk of

8

nursing home admission among older americans: does states' spending on home- and

9

community-based services matter? J Gerontol B Psychol Sci Soc Sci, 62(3), S169-178.

10 Nanda, A., Bourbonniere, M., Wetle, T., & Teno, J. (2010). Home care in the last year of life:

11

family member perceptions of unmet need associated with last place of care. J Am Med

12

Dir Assoc, 11(1), 21-25.

13 Sands, L. P., Wang, Y., McCabe, G. P., Jennings, K., Eng, C., & Covinsky, K. E. (2006). Rates

14

of acute care admissions for frail older people living with met versus unmet activity of

15 daily living needs. J Am Geriatr Soc, 54(2), 339-344.
16 Stone, R., & Harahan, M. F. (2010). Improving the long-term care workforce serving older
17

18

adults. Health Aff (Millwood), 29(1), 109-115.

19 Tennstedt, S., McKinlay, J., & Kasten, L. (1994). Unmet need among disabled elders: a problem

20

in access to community long term care? Soc Sci Med, 38(7), 915-924.

21 Williams, J., Lyons, B., & Rowland, D. (1997). Unmet long-term care needs of elderly people in
22 the community: a review of the literature. Home Health Care Serv Q, 16(1-2), 93-119.
23

24

25

26

27

13

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Exhibit 25 Declaration of C.M.
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 79 of 202

DECLARATION OF C.M. C.M. subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. My name is C.M. I am 55 years old and I live in Baton Rouge, Louisiana with my
wife and my daughter, R.M. 2. R.M. is my only daughter. She is twenty-six years old. At the age of eighteen, when
she was a student at LSU, she was in an automobile accident. She suffered a traumatic brain injury. After a lengthy period of hospitalization and rehabilitation, she returned home to live with us. 3. Our only other child, our son, died in 2007. 4. As a result of her injuries, R.M. has been diagnosed with dementia, peripheral vascular disease and depression. She has hemiparesis (paralysis) on her left side, and ataxia (gross lack of coordination) on her right side. R.M. has no fine motor control and her gross motor control is very limited. She has double vision. 5. R.M. has little functional use of her hands. She cannot walk without assistance and has little coordination. She cannot propel herself in a wheelchair. She has no fine motor control and her gross motor control is very limited. She has a history of decubitis. She needs assistance with all of her activities of daily living, including walking, eating, transferring, toileting, bathing, dressing, and attending to personal hygiene. She cannot prepare a meal for herself, manage her medication or dial the phone without difficulty. The only task she can even participate in is eating, and she can barely bring a fork or spoon to her mouth. She needs to be spoon-fed much of the time.
1 Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 80 of 202

6. She can operate a remote control for the television, but if she drops or misplaces it, someone must fetch it for her.
7. The most challenging effect of R.M.’s injury is her lack of short-term memory, lack of inhibition, and poor judgment. She frequently has outbursts of anger and frustration because of her situation, and takes her frustration out on either her family or her paid supports. She is combative and disruptive. She also wakes up at least once every night and needs help with toileting.
8. R.M.’s lack of judgment makes caring for her very challenging. Although she cannot walk, and she will try to get up and walk if left unattended. When she tries to walk on her own, she falls.
9. If her mother is home, R.M. insists on being cared for by her. She calls out to every 15 to 20 minutes, to do little things that often do not really need to be done. For example, R.M. decided recently that she was not getting enough to eat, and she cried out for food and snacks virtually constantly. We would give her a snack, and twenty minutes later, she would forget having eaten and call out for us to feed her again. Despite our efforts to resist, she gained weight. If we do not respond to her when she wants something, she will scream and scream until we do respond.
10. I am the sole support for my family. I work full time as an accountant for an insurance company. I also run my own CPA business at home, which requires me to work approximately 40 hours a week between January and April every year. Other times, I devote 10-20 hours per week to the business. My wife attends school and spends hours per day studying, and she also volunteers at her church. During tax time, she puts in about 20 hours a week working in my tax business.
2 Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 81 of 202

11. Since her accident, my wife and I have cared for R.M. in our home. She has received LT-PCS from the State of Louisiana since approximately 2006. This assistance is critical to enabling us to continue to keep her at home with us. The LT-PCS worker is there from 8:00 a.m. to 4:00 p.m. on Mondays, Tuesdays, Thursdays, and Fridays and from 8:00 a.m. to 12:30 p.m. on Wednesdays, while both my wife and I are out of the home.
12. For the last two years, until June of 2011, R.M. had been receiving 36.5 hours through the LT-PCS program. Before that, she was receiving 38 hours of care. She needs at least that amount of care.
13. R.M.’s needs have not decreased over the last two years—in fact, her condition has gotten worse in a number of ways—in her cognitive ability, her mental state, her vision, her ability to communicate, and her behavioral symptoms. She needs more assistance now than she did when she was approved for 36.5 hours of care in ADL’s of transferring, dressing, personal hygiene, bathing, and locomotion. She is becoming more difficult to care for because of her behavioral issues.
14. In June of 2011, I received the attached notice (Attachment A) that stated that R.M.’s hours would be reduced to 29 a week, based on a new method for determining service hours. I filed an appeal of this action. While the appeal was pending, R.M. was able to get 32 hours a week of LT-PCS. I was able to pay $50 a week out of pocket to cover the hours of care that had been taken away while the appeal was pending.
15. I filed R.M.’s appeal the last week of June, 2011. I did not request any postponement of the hearing, but I did request an in-person hearing so the judge could see R.M.. The hearing was postponed once because the judge did not realize it was supposed to
3 Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 82 of 202

be in person, and once the State asked for a continuance so they could have their lawyer present. The hearing did not take place until October 5, 2011, and the decision denying the appeal was dated October 25, 2011. 16. I understood that the Advocacy Center requested an emergency waiver slot for R.M. in July of 2011, while her appeal was pending. I understand that the waiver program would provide her with at least 36.5 hours a week of personal care. I received a denial of that request, on the ground that she had to be approved to receive the maximum amount of LT-PCS, 32 hours a week, in order to apply for an emergency waiver slot. 17. I was able to obtain a statement from R.M.’s physician, Dr. Mario Moreno, to submit at the administrative hearing. It is attached as Attachment B. Dr. Moreno also testified by telephone at the hearing. 18. The decision on R.M.’s administrative appeal to get the maximum number of hours is attached as Attachment C. As I understand it, the decision said that R.M. couldn’t be awarded the maximum number of hours of LT-PCS, 32 a week, because she needs more than that to avoid going to a nursing home. 19. If R.M.’s hours of LT-PCS are not restored, a 24-hour nursing home is the solution for R.M. to obtain the assistance she needs. My wife and I are already providing 136 hours of week of care and cannot assume the additional home-based care hours that R.M. needs. The 24-hour care that my wife and I provide for R.M. on weekends, and the 16 to 20 hours a day every weekday, are all that we can do. We love R.M., but we are simply exhausted both physically and emotionally from the demands of her care. We have not been one night away from R.M. since her accident in 2003.
4 Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 83 of 202

20. I have taken the first steps toward placing R.M. in a nursing home, by contacting the

State’s Options in Long-term Care program and completing the preliminary

application. I was told that she was eligible and that the next step is to choose a

nursing home to complete the registration process. I will not take this step until I

exhaust all avenues of appeal. As any parent would, I want to avoid institutional care

for my daughter because, as with most disability cases, home-based care is better for

Regan.

Date: November 9, 2011

/s/C.M. C.M.

5 Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 84 of 202

Attachment A
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 85 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 86 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 87 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 88 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 89 of 202

Attachment B
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 90 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 91 of 202

Attachment C
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 92 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 93 of 202

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Exhibit 26 30 La. Reg. 2831-32 (December 20, 2004)
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 99 of 202

RULE
Department of Health and Hospitals Office of the Secretary
Bureau of Health Services Financing
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Case 3:10-cv-00635-JJB -SCR Doc!u"m#$ent 85 1Lo1u/is1ia5n/a1R1egisPteragVeol.1300,0Noo. 1f220D2ecember 20, 2004

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Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 108 of 202

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Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 110 of 202

Exhibit 28 36 La. Reg. 1749 (August 20, 2010)
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 111 of 202

responding to inquiries regarding this Emergency Rule. A copy of this Emergency Rule is available for review by interested parties at parish Medicaid offices.

1008#029

Alan Levine Secretary

DECLARATION OF EMERGENCY
Department of Health and Hospitals Bureau of Health Services Financing
and Office of Aging and Adult Services

Personal Care Services!Long-Term Policy Clarifications and Service Limit Reduction
(LAC 50:XV.12901-12909 and 12911-12915)

The Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amend LAC 50:XV.12901-12909 and §§1291112915 in the Medical Assistance Program as authorized by R.S. 36:254 and pursuant to Title XIX of the Social Security Act. This Emergency Rule is promulgated in accordance with the provisions of the Administrative Procedure Act, R.S. 49:953.B(1) et seq., and shall be in effect for the maximum period allowed under the Act or until adoption of the final Rule, whichever occurs first.
Senate Resolution 180 and House Resolution 190 of the 2008 Regular Session of the Louisiana Legislature directed the department to develop and implement cost control mechanisms to provide the most cost-effective means of financing the Long-Term Personal Care Services (LT-PCS) Program. In compliance with these legislative directives, the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amended the provisions governing the LT-PCS Program to: 1) implement uniform needs-based assessments for authorizing service units; 2) reduce the limit on LT-PCS service hours; 3) mandate that providers must show cause for refusing to serve clients; and 4) incorporate provisions governing an allocation of weekly service hours (Louisiana Register, Volume 35, Number 11).
The department now proposes to amend the provisions governing long-term personal care services to: 1) establish provisions that address requests for services; 2) revise the eligibility criteria for LT-PCS; 3) clarify the provisions governing restrictions for paid direct care staff and the place of service; and 4) reduce the maximum allowed service hours. This action is being taken to avoid a budget deficit in the medical assistance programs. It is estimated that implementation of this Emergency Rule will reduce expenditures in the Medicaid Program by approximately $5,193,352 for state fiscal year 2010-2011.
Effective September 5, 2010, the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amend the provisions governing long-term personal care services.

Title 50 PUBLIC HEALTH—MEDICAL ASSISTANCE
Part XV. Services for Special Populations Subpart 9. Personal Care Services
Chapter 129. Long Term Care §12901. General Provisions
A. The purpose of personal care services is to assist individuals with functional impairments with their daily living activities. Personal care services must be provided in accordance with an approved service plan and supporting documentation. In addition, personal care services must be coordinated with the other Medicaid and non-Medicaid services being provided to the recipient and will be considered in conjunction with those other services.
B. Each recipient requesting or receiving long-term personal care services (LT-PCS) shall undergo a functional eligibility screening utilizing an eligibility screening tool called the Level of Care Eligibility Tool (LOCET), or a subsequent eligibility tool designated by the Office of Aging and Adult Services (OAAS).
C. Each LT-PCS applicant/recipient shall be assessed using a uniform assessment tool called the Minimum Data Set-Home Care (MDS-HC) or a subsequent assessment tool designated by OAAS. The MDS-HC is designed to verify that an individual meets eligibility qualifications and to determine resource allocation while identifying his/her need for support in performance of activities of daily living (ADLs) and instrumental activities of daily living (IADLs). The MDS-HC assessment generates a score which measures the recipient’s degree of self-performance of late-loss activities of daily living during the period just before the assessment.
1. The late-loss ADLs are eating, toileting, transferring and bed mobility. An individual’s assessment will generate a score from 4 through 15 which is representative of the individual’s degree of self-performance on these four late-loss ADLs.
2. - 7. Repealed. D. Based on the applicant/recipient’s uniform assessment score, he/she is assigned to a level of support category and is eligible for a set allocation of weekly service hours associated with that level.
1. If the applicant/recipient is allocated less than 32 hours per week and believes that he/she is entitled to more hours, the applicant/recipient or his/her responsible representative may request a fair hearing to appeal the decision.
2. The applicant/recipient may only obtain additional hours upon showing that the:
a. assessment was inaccurate and the resulting allocation methodology was incorrectly applied; and
b. correct application of the methodology would result in additional hours.
E. Requests for personal care services shall be accepted from the following individuals:
1. a Medicaid recipient who wants to receive personal care services;
2. an individual who is legally responsible for a recipient who may be in need of personal care services; or

Case 3:10-cv-00635-JJB -SCR Doc1u7m49ent 85 11/1Lo5u/is1ia1na RPegaisgteer 1V1ol2. 36o,fN2o.082August 20, 2010

3. a responsible representative designated by the recipient to act on his/her behalf in requesting personal care services.
F. Each recipient who requests PCS has the option to designate a responsible representative. For purposes of these provisions, a responsible representative shall be defined as the person designated by the recipient to act on his/her behalf in the process of accessing and/or maintaining personal care services.
1. The appropriate form authorized by OAAS shall be used to designate a responsible representative.
a. The written designation of a responsible representative does not give legal authority for that individual to independently handle the recipient’s business without his/her involvement.
b. The written designation is valid until revoked by the recipient. To revoke the written designation, the revocation must be submitted in writing to OAAS or its designee.
2. The functions of a responsible representative are to: a. assist and represent the recipient in the
assessment, care plan development and service delivery processes; and
b. to aid the recipient in obtaining all necessary documentation for these processes.
3. The paid PCS worker providing services to a recipient may not act as the recipient’s responsible representative.
4. An owner or employee of a personal care attendant services agency may not be designated as a responsible representative for any recipient who receives personal care services from an agency he/she owns or is employed by.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:911 (June 2003), amended LR 30:2831 (December 2004), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 32:2082 (November 2006), LR 34:2577 (December 2008), , amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:2450 (November 2009), LR 36: §12902. Participant Direction Option
A. The Office of Aging and Adult Services implements a pilot program, the Louisiana Personal Options Program (La POP), which will allow recipients who receive long term personal care services (LT-PCS) to have the option of utilizing an alternative method to receive and manage their services. Recipients may direct and manage their own services by electing to participate in La POP, rather than accessing their services through a traditional personal care agency.
1. La POP shall be implemented through a phase-in process in Department of Health and Hospitals administrative regions designated by OAAS.
A.2. – B.1.... 2. With the assistance of a services consultant,
participants develop a personal support plan based on their approved plan of care and choose the individuals they wish to hire to provide the services.
C. - E.1. ...

2. Change in Condition. The participant’s ability to direct his/her own care diminishes to a point where he/she can no longer do so and there is no responsible representative available to direct the care.
3. Misuse of Monthly Allocation of Funds. The LA POP participant or his/her responsible representative uses the monthly budgeted funds to purchase items unrelated to personal care needs or otherwise misappropriate the funds.
4. Failure to Provide Required Documentation. The participant or his/her responsible representative fails to complete and submit employee time sheets in a timely and accurate manner, or provide required documentation of expenditures and related items as prescribed in the Louisiana Personal Options Program’s Roles and Responsibility agreement.
5. ... AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2578 (December 2008) amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36: §12903. Covered Services A. Personal care services are defined as those services that provide assistance with the distinct tasks associated with the performance of the activities of daily living (ADLs) and the instrumental activities of daily living (IADLs). Assistance may be either the actual performance of the personal care task for the individual or supervision and prompting so the individual performs the task by him/herself. ADLs are those personal, functional activities required by the recipient. ADLs include tasks such as:
1. - 7. ... B. IADLs are those activities that are considered essential, but may not require performance on a daily basis. IADLs cannot be performed in the recipient’s home when he/she is absent from the home. IADLs include tasks such as:
1. light housekeeping; 2. food preparation and storage; 3. shopping; 4. laundry; 5. assisting with scheduling medical appointments when necessary; 6. accompanying the recipient to medical appointments when necessary; 7. assisting the recipient to access transportation; and 8. reminding the recipient to take his/her medication as prescribed by the physician. C. Emergency and nonemergency medical transportation is a covered Medicaid service and is available to all recipients. Non-medical transportation is not a required component of personal care services. However, providers may choose to furnish transportation for recipients during the course of providing personal care services. If transportation is furnished, the provider agency must accept any liability for their employee transporting a recipient. It is the responsibility of the provider agency to ensure that the employee has a current, valid driver’s license and automobile liability insurance.

Louisiana RegistCer aVsoel. 336:,1N0o.-8cvA-u0g0us6t3205,-2J0J10B -SCR Doc1u7m50ent 85 11/15/11 Page 113 of 202

1. La POP participants may choose to use some of their monthly budget to purchase non-medical transportation.
a. If transportation is furnished, the participant must accept all liability for their employee transporting them. It is the responsibility of the participant to ensure that the employee has a current, valid driver’s license and automobile liability insurance.
D. - F. ... AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:912 (June 2003), amended LR 30:2831 (December 2004), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2578 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36: §12905. Eligibility Criteria A. … B. Recipients must meet the eligibility criteria established by OAAS or its designee. Personal care services are medically necessary if the recipient: B.1. - D. … AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:912 (June 2003), amended LR 30:2831 (December 2004), amended by the Department of Health and Hospitals, Office of the Secretary, Office of Aging and Adult Services, LR 32:2082 (November 2006), LR 34:2579 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36: §12907. Recipient Rights and Responsibilities A. - A.2. …
3. training the individual personal care worker in the specific skills necessary to maintain the recipient’s independent functioning while maintaining him/her in the home;
4. developing an emergency component in the plan of care that includes a list of personal care staff who can serve as back-up when unforeseen circumstances prevent the regularly scheduled worker from providing services;
5. – 9. … B. Changing Providers. Recipients may request to change PCS agencies without cause once after each three month interval during the service authorization period. Recipients may request to change PCS providers with good cause at any time during the service authorization period. Good cause is defined as the failure of the provider to furnish services in compliance with the plan of care. Good cause shall be determined by OAAS or its designee. C. In addition to these rights, a La POP participant has certain responsibilities, including:
1. ... 2. notifying the services consultant at the earliest reasonable time of admission to a hospital, nursing facility, rehabilitation facility or any other institution;

2.a. - 8.… 9. training the direct service worker in the specific skills necessary to maintain the participant’s independent functioning to remain in the home; 10. - 13. … AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:912 (June 2003), amended LR 30:2832 (December 2004), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2579 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36: §12909. Standards for Participation A. - A.1.c. ...
d. the policy and procedures contained in the Personal Care Services provider manual or memorandums;
A.2. - B.12.c. ... C. An LT-PCS provider shall not refuse to serve any individual who chooses his agency unless there is documentation to support an inability to meet the individual’s needs, or all previous efforts to provide service and supports have failed and there is no option but to refuse services. C.1. - D.2. … AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:912 (June 2003), amended LR 30:2832 (December 2004), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2579 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:2451 (November 2009), amended LR 36: §12911. Staffing Requirements A. - B.3. ... C. Restrictions. The following persons are prohibited from serving as the paid direct service worker for a recipient:
1. the recipient’s spouse; 2. the recipient’s curator; 3. the recipient’s tutor; 4. the recipient’s legal guardian; 5. the recipient’s responsible representative; or 6. the person to whom the recipient has given Representative and Mandate authority (also known as Power of Attorney). D. - E.1.b. ... AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 30:2832 (December 2004), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2580 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36:

Case 3:10-cv-00635-JJB -SCR Doc1u7m51ent 85 11/1Lo5u/is1ia1na RPegaisgteer 1V1ol4. 36o,fN2o.082August 20, 2010

§12912. Training A. - C.6. ... D. New direct care staff must also receive training in
cardiopulmonary resuscitation (CPR) and basic first aid within one week of employment. A current, valid certification for CPR and first aid may be accepted as verification of training. This CPR and first aid certification must be maintained and kept current as long as the direct service worker is employed with the PCS agency.
E. - E.7. ... 8. maintenance of a clean environment; and
E.9. - G.3.c. … 4. New La POP direct service workers must also
receive training in cardiopulmonary resuscitation (CPR) and basic first aid within one week of employment. A current, valid certification for CPR and first aid may be accepted as verification of training. This CPR and first aid certification must be maintained and kept current throughout the worker’s employment period as a La POP personal care service worker.
G.5. - H. ... AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2580 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36:

provides in-home assistance with IADLs or ADLs or while the recipient is admitted to or attending a program or setting where such assistance is available to the recipient.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:913 (June 2003), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2581 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:2451 (November 2009), amended LR 36:
Implementation of the provisions of this Rule may be contingent upon the approval of the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), if it is determined that submission to CMS for review and approval is required.
Interested persons may submit written comments to Don Gregory, Bureau of Health Services Financing, P.O. Box 91030, Baton Rouge, LA 70821-9030. He is responsible for responding to inquiries regarding this Emergency Rule. A copy of this Emergency Rule is available for review by interested parties at parish Medicaid offices.

1008#102

Anthony Keck Secretary

§12913. Service Delivery A. Personal care services shall be provided in the
recipient’s home or in another location outside of the recipient’s home if the provision of these services allows the recipient to participate in normal life activities pertaining to the IADLs cited in the plan of care. The recipient’s home is defined as the place where he/she resides such as a house, an apartment, a boarding house, or the house or apartment of a

DECLARATION OF EMERGENCY
Department of Health and Hospitals Bureau of Health Services Financing
Personal Care Services—Long-Term Reimbursement Rate Reduction (LAC 50:XV.12917)

family member or unpaid primary care-giver. IADLs cannot be performed in the recipient’s home when the recipient is absent from the home.
1. - 4. Repealed. B. ... C. Participants are not permitted to receive LT-PCS while living in a home or property owned, operated, or controlled by a provider of services who is not related by blood or marriage to the participant. C.1. - E. ... AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:913 (June 2003), amended LR 30:2833 (December 2004), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:2581 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Financing and the Office of Aging and Adult Services, LR 36:

The Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amend LAC 50:XV.12917 in the Medical Assistance Program as authorized by R.S. 36:254 and pursuant to Title XIX of the Social Security Act and as directed by Act 11 of the 2010 Regular Session of the Louisiana Legislature which states: “The secretary is directed to utilize various cost containment measures to ensure expenditures in the Medicaid Program do not exceed the level appropriated in this Schedule, including but not limited to precertification, preadmission screening, diversion, fraud control, utilization review and management, prior authorization, service limitations, drug therapy management, disease management, cost sharing, and other measures as permitted under federal law.” This Emergency Rule is promulgated in accordance with the provisions of the Administrative Procedure Act, R.S. 49:953(B)(1) et seq., and shall be in effect for the maximum period allowed under the

§12915. Service Limitations

Act or until adoption of the final Rule, whichever occurs

A. Personal care services shall be limited to up to 32 hours per week. Authorization of service hours shall be

first. As a result of a budgetary shortfall in state fiscal year 2010, the Department of Health and Hospitals, Bureau of

considered on a case-by-case basis as substantiated by the recipient’s plan of care and supporting documentation.
B. There shall be no duplication of services.

Health Services Financing and the Office of Aging and Adult Services amended the provisions governing the reimbursement methodology for long-term personal care

1. Personal care services may not be provided while the recipient is admitted to or attending a program which

services (LT-PCS) to reduce the reimbursement rates (Louisiana Register, Volume 36, Number 6).

Louisiana RegistCer aVsoel. 336:,1N0o.-8cvA-u0g0us6t3205,-2J0J10B -SCR Doc1u7m52ent 85 11/15/11 Page 115 of 202

Exhibit 29 Eley Deposition Excerpts
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 116 of 202

Hugh Eley February 23, 2011
1

1

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

2

3

HELEN PITTS, et al. * C.A. No. 3:10-cv-00635-JJB-SCR

*

4

PLAINTIFFS

*

* JUDGE JAMES J. BRADY

5

*

V.

*

6

*

BRUCE GREENSTEIN,

* MAGISTRATE JUDGE STEPHEN

7

et al.

* C. RIEDLINGER

*

8

* CLASS ACTION

*

9

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

10 THE TRANSCRIPT OF THE DEPOSITION OF
11 HUGH ELEY
12 TAKEN ON BEHALF OF THE PLAINTIFFS, REPORTED IN THE
13 ABOVE-ENTITLED AND NUMBERED CAUSE, BEFORE A. FAYE
14 HUFFMAN, RPR, AND A CERTIFIED COURT REPORTER FOR THE
15 STATE OF LOUISIANA
16 * * * * * * * * * * * * * * * * * * * * * * * * * * * *
17

18

REPORTED AT THE OFFICES OF:

19

LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS

20

628 NORTH 4TH STREET, ROOM 474

21

BATON ROUGE, LOUISIANA 70802

22

COMMENCING AT 9:00 A.M. ON FEBRUARY 23, 2011

23

24

25

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Hugh Eley February 23, 2011
2

1

INDEX

2

Page

3

INDEX................................... 2

4

APPEARANCES............................. 3

5

STIPULATION............................. 4

6

REPORTER'S CERTIFICATE.................. 229

7

READ AND SIGN LETTER SENT TO WITNESS.... 230

8

ERRATA SHEET............................ 231

9

WITNESS'S CERTIFICATE................... 232

10

11

EXAMINATION BY MS. HAHN................. 5

12

EXHIBITS
13

NUMBER 1................................ 133

14

(Minimum Data Set - Home Care)

15

NUMBER 2................................ 134

(Level of Care Eligibility Tool)

16

NUMBER 3................................ 139

17

(RAI-Home Care (RAI-HC) 8 Assessment

Manual for Version 2.0)

18

NUMBER 4................................ 164

19

(InterRAI scales printed 12-15-2008)

20

NUMBER 5................................ 165

(Detailed Explanation of Scoring Method)

21

NUMBER 6................................ 227

22

(6-9-2010 Fiscal Note on HB 766)

23

24

25

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1

THE WITNESS: Okay. All right.

2

BY MS. HAHN:

3

Q. So I'm just going to sort of explain to you my

4

understanding of how it works and I want you to correct

5

me if I get it wrong.

6

It's to identify people who are at high risk

7

of institutionalization in the coming months, and in

8

order to determine if a person meets that risk there's

9

a specific set of things that they're required to have,

10

and there's a list of eight different things, and this

11

protocol says that at least four of these have to be

12

present for institutional risks to be found; is that

13

right?

14

A. That's right.

15

Q. And I believe you said that we negotiated

16

about that during the Barthelemy case and changed

17

that. Was the change that we made that you would only

18

have to have at least three of those factors?

19

A. That's right.

20

Q. And the other change that we made during the

21

negotiations over the Barthelemy case was that we also

22

said that if they did not meet these they could provide

23

medical documentation that they were at risk of either

24

institutionalization, or I think it was substantial

25

deterioration and mental or physical condition if they

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1

didn't get care within 120 days?

2

A. Yeah, that's the process we just described.

3

Q. Okay. Under prior nursing home placement, I

4

just want to relate this if I can. I'm looking over on

5

this same page that says institutionalization risk on

6

the Exhibit 3 --

7

A. Uh-huh (affirmative response)

8

Q. -- these numbers and letters off to the

9

right. It says under prior nursing home placement, it

10

says CC-7 equals 1 in brackets. Can you relate that to

11

Exhibit 1, the MDS-HC? Is that referring to questions

12

that are asked on Exhibit 1?

13

A. I honestly don't know.

14

Q. Can you look, for example, under Section CC?

15

A. You're consulting your MDS expert and I don't

16

have mine in the room, but I'll look and see.

17

Q. Section CC is on the first page.

18

A. Okay.

19

Q. So under CC-7, what does CC-7 say?

20

A. It says, "Prior nursing home placement.

21

Resided in a nursing home during five years prior to

22

the case opening."

23

Q. Doesn't it actually say "resided in a nursing

24

home at any time during five years prior to case

25

opening"?

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1

A. Yes.

2

Q. Has it ever been higher than that?

3

A. I don't believe it's ever been higher than 14

4

dollars, no.

5

Q. And since then would the reductions in the

6

LT-PCS rate be reflected in the rules in the Louisiana

7

Register?

8

A. Yes.

9

Q. Would that be the best source of information

10

for that?

11

A. Yes.

12

Q. If you'll look at page 2 of Document 1949, is

13

that the document shows the maximum number of hours per

14

week that can be awarded to different groupings of

15

people on the LT-PCS Program?

16

A. Yes.

17

Q. So that's your current -- that's the guide

18

that's being used in the current program?

19

A. Yes, I believe so.

20

Q. Okay. Now if you'll turn to pages 13 and 14

21

of Document 1949, there's a document that explains how

22

Louisiana determines Long-Term Personal Care Services

23

hours. Is that a document that describes how -- that

24

partially describes how a person's ADL index in the

25

guide on page 2 is determined?

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1

A. Yes, I think that's what that does. It's an

2

explanation of how that ADL index number is derived

3

based on your answers to the MDS-HC.

4

Q. And the MDS-HC is the document that was Eley

5

Exhibit 1; is that correct?

6

A. Yes.

7

Q. So if I understand it correctly, to get the

8

ADL index you look at only four activities of daily

9

living: getting in or out of bed or a chair, also

10

known as transferring, that's one; going from a lying

11

to a sitting position in bed, bed mobility, using the

12

toilet, and eating; is that correct?

13

A. That's what it says.

14

Q. Now when you talk about eating, a minute ago

15

we went over the questions on the MDS-HC dealing with

16

meal preparation. Eating is different from meal

17

preparation; is it not?

18

A. That's my understanding, yes. I'm not an

19

expert in this assessment tool, but that's my

20

understanding.

21

Q. Eating means actually getting food into your

22

mouth or into your stomach if you don't eat by mouth;

23

is that right?

24

A. I believe so, yes.

25

Q. So that the types of activities you're talking

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1

about here are pretty basic; would you agree with me?

2

A. Yes.

3

Q. The people that score in the highest group

4

that would get the 32 hours of the LT-PCS have to score

5

a 14 or 15 or their ADL index, right?

6

A. That's correct.

7

Q. How do you get to the score of 14 or 15; do

8

you know? Do you know what you have to be able to do

9

or not be able to do in order to get to that point?

10

A. No, I don't. I mean it's a cumulative

11

number. It's based on your answers to these questions

12

about these ADLs, but exactly what -- that's as much as

13

I know.

14

Q. Okay. So you don't actually know how the

15

scores are assigned to the ADL index except for through

16

an algorithm of some kind?

17

A. It's based on the answers to the ADL questions

18

and how you answer those questions. I don't think it's

19

an algorithm. I think it's just additive, but I may be

20

wrong.

21

Q. I'm showing you what's been marked Eley

22

Exhibit 4. Could you identify that document?

23

(ELEY EXHIBIT NO. 4 FOR IDENTIFICATION WAS

24

MARKED FOR THE RECORD.)

25

A. It appears to be the questions on the MDS and

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1

how they relate to the calculation of the index. I

2

don't think I've ever seen this particular document

3

before.

4

Q. It says at the bottom, "prepared by Mandi

5

Jones." Is that somebody that works for you?

6

A. Yes.

7

Q. I'm showing you a document that's been marked

8

Exhibit 5. Can you identify that document?

9

(ELEY EXHIBIT NO. 5 FOR IDENTIFICATION WAS

10

MARKED FOR THE RECORD.)

11

A. Again, I don't know that I've seen it before,

12

but it says, "Detailed Explanation of Scoring Method."

13

Q. Does it appear to be an explanation of the

14

construction of the ADL index?

15

A. I wouldn't say that. It looks more like it's

16

some sort of instructions about how to score the

17

specific responses on the assessment tool.

18

Q. Are you aware of any other document that shows

19

actually how the ADL index is constructed?

20

A. I would assume it's in the MDS-HC manuals, the

21

training manuals and the user manuals for those things

22

that are put out by the people who developed the tool,

23

but I don't know that for sure.

24

Q. Does your Department have a copy of something

25

that would show how the ADL index is constructed?

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1

A. I think this document right here shows how

2

it's constructed; the first document you handed me,

3

Exhibit 4.

4

Q. You think Exhibit 4 explains how the ADL index

5

is constructed?

6

MS. BROWN: Well, he said he's not familiar

7

with either document.

8

THE WITNESS: But that's what it appears to

9

do.

10

BY MS. HAHN:

11

Q. Are you aware of any other document within

12

your department that shows how the ADL index is

13

constructed?

14

A. As I said, it may be in the manual. I don't

15

know for sure if it is or not.

16

MS. HAHN: Was the manual supplied to us as

17

part of discovery; do you know?

18

MS. BROWN: I don't know.

19

BY MS. HAHN:

20

Q. Well, if you have any other document that

21

shows how the ADL index is constructed, would you

22

supply that to us?

23

A. Sure.

24

MS. BROWN: By that you mean how it's scored?

25

MS. HAHN: How it's scored, how you get from

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1

the answers to questions on the MDS-HC or the LOCET to

2

the index.

3

BY MS. HAHN:

4

Q. But looking at the MDS-HC and looking, for

5

example, under eating, let me just take you to page 3

6

of Exhibit 1, the MDS-HC.

7

A. Okay.

8

Q. And looking at mobility in bed, it's defined

9

as "moving to and from a lying position, turning side

10

to side, and positioning body while in bed"; is that

11

correct?

12

A. Yes.

13

Q. Okay. Now just comparing that to the

14

explanation which was on page 13 of Document 1949, it

15

described bed mobility as "going from a lying to a

16

sitting position in bed."

17

Which definition is actually used in

18

constructing the ADL index: the one on the MDS-HC,

19

Exhibit 1, or the one in this explanation, how

20

Louisiana determines Long-Term Personal Care Service

21

hours?

22

MS. BROWN: If you know the answer.

23

THE WITNESS: Ask me the question again.

24

BY MS. HAHN:

25

Q. Okay. Which definition of mobility in bed is

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1

actually used in constructing a person's ADL index to

2

determine how many hours of personal care service

3

they're going to get? Is it the definition on the

4

MDS-HC which says "moving to and from a lying position,

5

turning side to side, and positioning body while in

6

bed," or is it the shorter definition on 1949, page 13,

7

which says "going from a lying to a sitting position in

8

bed"?

9

Which one of these is the actual definition to

10

use?

11

A. The one on the MDS-HC.

12

Q. The one on Exhibit 1?

13

A. Yes.

14

Q. And in terms of the -- if you'll look on the

15

previous page on the MDS-HC, you look at what is meant

16

by the different values that can be assigned from

17

independence to activity did not occur, that's down in

18

the lower right-hand corner of the page.

19

A. Yes.

20

Q. So there are eight possible -- no, there are

21

seven possible --

22

MS. BROWN: Eight.

23

BY MS. HAHN:

24

Q. -- eight possible values that could be shown

25

under mobility in bed; is that right?

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1

A. Yes.

2

Q. And it shows on this guide, Exhibit 4, how

3

many points you would get depending on what answer was

4

given for mobility in bed; is that correct?

5

A. It appears to.

6

Q. And so what this guide appears to be saying --

7

first of all --

8

MS. BROWN: He's already said he's not

9

familiar with this.

10

MS. HAHN: I know he did, but can I get you to

11

check and let us know if this, indeed, is the way you

12

compute the ADL index?

13

MR. BERNS: He already agreed to that.

14

MS. HAHN: He did?

15

MS. BROWN: Yes.

16

MS. HAHN: Okay. Thank you. I just wanted to

17

make sure.

18

BY MS. HAHN:

19

Q. Let's just go on the assumption that this is

20

the way you compute it.

21

MS. BROWN: All right. Although he's already

22

said he's not familiar with it and we're not certain of

23

it and we have a long list of questions and limited

24

time. I'm not sure it's productive. It's your

25

deposition.

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MS. HAHN: It's my deposition.

2

MS. BROWN: I know. I know.

3

MS. HAHN: But I just kind of want to know --

4

let me just do this one, and then I won't go through

5

the whole thing -- how's that -- and then could we

6

stipulate if it works this way we can apply it to the

7

rest of the things. Okay?

8

MS. BROWN: Yes.

9

BY MS. HAHN:

10

Q. So just taking bed mobility, if you score a

11

zero, 1 or a 2 in bed mobility, that would be

12

independent, set-up help only, or supervision under ADL

13

self-performance, Section H-2, right?

14

A. I'm sorry. Where are you?

15

Q. That's okay. I've been over it before. All

16

right. You take MDS question H-2-A.

17

A. Which is?

18

Q. It's in Section H, physical function.

19

A. ADL self-performance. All right.

20

Q. And that's A, mobility in bed?

21

MS. BROWN: Next page.

22

THE WITNESS: Okay. There's a lot of A's on

23

here. Okay.

24

BY MS. HAHN:

25

Q. And you're going to fill in a value in the

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1

little square next to mobility in bed. Okay?

2

A. Okay.

3

Q. It's going to be a number from zero to 8.

4

A. Okay.

5

Q. All right. And if you score a zero, a 1 or a

6

2, and those are all defined on the previous page --

7

independent, set-up help only, or supervision -- you'd

8

get one point toward your ADL index, right?

9

A. H-2-A, zero, 1 or 2, you'd get one point.

10

That's what this document says, yes.

11

Q. And to get a 3, you would have to score a 3 in

12

bed mobility, and that would be limited assistance,

13

right?

14

A. Right.

15

Q. And then it defines limited assistance as

16

"received physical help in guided maneuvering of limbs

17

or other non-weight bearing assistance 3 or more times

18

or a combination of non-weight bearing help with more

19

help provided only 1 or 2 times during the period, for

20

a total of 3 or more episodes of physical help."

21

That's what limited assistance is defined as,

22

right?

23

A. That's what it says, yes.

24

Q. Okay. Now to score a 4 in that category, you

25

would have to get extensive assistance, maximal

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1

assistance, or total dependence, or the activity did

2

not occur?

3

A. That's what it says.

4

Q. That's what it says. And it would be during

5

the last three days?

6

A. Yes, that's what -- well, I believe that's

7

correct.

8

Q. I guess 8 would be you haven't moved in bed in

9

three days. So that's how that would work, right, if

10

this is a correct document?

11

A. Yes.

12

Q. Does the state have to report to the CMS on

13

some documents called 372 and 64, some forms?

14

A. Yes.

15

Q. And these forms will list the number of

16

participants and the Medicaid expenditures in various

17

programs?

18

A. Yes.

19

Q. You have an attachment to your declaration,

20

Attachment F. You testified about it in Paragraph 43

21

of your declaration. Attachment F is talking about 15

22

states that have been reported in the -- let me just

23

look at it again.

24

You talk about 15 states that provide less

25

than 32 hours a week of personal care assistance?

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1

BY MS. HAHN:

2

Q. Maybe I better go back. Tell me how this came

3

about if you can starting when you learned you were

4

going to make -- that you were going to need to make a

5

cut in the LT-PCS Program.

6

A. There was a 61 million dollar line item

7

reduction in LT-PCS.

8

Q. Specifically in that program?

9

A. Specifically in that program.

10

Q. And who suggested that line item cut?

11

A. I have no idea.

12

Q. Did you suggest it?

13

A. No, absolutely not.

14

Q. If it had been your decision to make, would

15

you have suggested it?

16

A. Well, let me answer your question this way.

17

When we submitted our budget documents in 2000 in the

18

budget preparation we actually submitted to add money

19

to LT-PCS, and if you look at the actual budget

20

documents there is some money added to account for

21

projected utilization, you know, increase, but then

22

that's added and then the 61 million dollars is taken

23

away.

24

Q. When you start preparing the budget for the

25

next fiscal year, is each department head asked to

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submit a proposed budget or how does that work?

2

A. Yes, each department, each office, submits a

3

proposed budget. Medicaid submits a proposed budget.

4

Q. When you submit the budget for your office, do

5

you include things like LT-PCS and the waiver programs?

6

A. Those funds are not in the OAAS budget.

7

They're in the Medicaid budget. But we're involved in

8

preparing those sections of the Medicaid budget that

9

cover those programs that we manage.

10

Q. And when you put in your budget, you put in

11

for an increase in the LT-PCS Program for fiscal 2011?

12

A. A utilization increase, yes.

13

Q. And a utilization increase means more people

14

are using the service so you need more money; is that

15

right?

16

A. Correct.

17

Q. How did you learn that there was a line item

18

cut to the LT-PCS Program?

19

A. I'm honestly not sure. I was either told by

20

someone or I saw it when the budget documents came out,

21

but I really don't remember.

22

Q. We got a couple of e-mails in the documents

23

that we got recently. Let me see if I can find them.

24

I want you to look at Document 3142, please.

25

A. Okay.

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1

Q. If you look at these, it's an e-mail chain,

2

and to look at them you've got to start at the bottom.

3

A. Yeah.

4

Q. Was this the e-mail in which you learned about

5

the proposed sixty -- well, in this one it says a 62

6

million cut or a 61 million cut.

7

A. This is dated February -- the first e-mail is

8

dated February 19th. This is probably not the first

9

information I had, but I don't know what exact date the

10

executive budget was released that year. But I would

11

certainly have known about it by then.

12

Q. When do you usually learn?

13

A. I don't think there is a usually. We have

14

budget meetings and we talk about what's in or what's

15

not in the budget, but there's nothing official until

16

the Governor releases the executive budget.

17

Q. When does that happen?

18

A. Forty-five days before the start of the

19

legislative session. So this year it's March 11th.

20

Last year the session started earlier, so it would have

21

been sometime in February.

22

Q. This set of e-mails, you've got an e-mail from

23

Randy Davidson. Who is Randy Davidson?

24

A. He is a Medicaid waiver assistant in the

25

compliance unit in Medicaid.

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Hugh Eley February 23, 2011
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1

Q. And he sent you an e-mail on February 19th

2

saying, "Jerry asked me to do a one-pager about a 62

3

million decrease for LT-PCS in next year's budget. Is

4

this number familiar to you?" And Jerry, who is the

5

Jerry that he refers to?

6

A. Jerry Phillips.

7

Q. And who is Jerry Phillips?

8

A. He was at that time I believe still the

9

Medicaid director. He's currently the Under Secretary

10

of DHH.

11

Q. And your reply to the question was that you

12

were not familiar with the number 62 million. You

13

said, "The best I can piece together, this number

14

was -- it should be agreed to -- in meetings between

15

the 9th floor and the Division or Governor's Office."

16

What did you mean when you referred to the

17

ninth floor?

18

A. The Secretary's office.

19

Q. The Secretary of DHH?

20

A. Yes.

21

Q. And what is the Division?

22

A. The Division of Administration.

23

Q. And what does the Division of Administration

24

have to do with it?

25

A. Well, the Division of Administration is the

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1

ones who make the budget.

2

Q. They draw up the budget of all the agencies?

3

A. They take what the agencies have submitted to

4

them as a budget request, they determine what the size

5

of the pie is, and then they divvy up the pie amongst

6

all those agencies and either give you more or less

7

than what you ask for. Usually less.

8

Q. And then they -- and of course the Governor's

9

Office. So you say it was somewhere between the

10

Secretary of DHH, the Division of Administration, and

11

the Governor were the ones that told you to make the 62

12

million dollar cut in the LT-PCS Program?

13

A. It came out in the executive budget. So it's

14

part of that process that goes on within the Division

15

of Administration. That's where that got put in.

16

Q. And it wasn't cut 62 million dollars from the

17

Medicaid budget or the Long-Term Care budget; it was

18

cut 62 million dollars from the LT-PCS Program?

19

A. That's correct.

20

Q. And you really didn't have an option of

21

cutting it somewhere else?

22

A. No, although at the end of the day we didn't

23

cut at 61 million dollars.

24

Q. Well, you didn't feel like you could cut at 61

25

million dollars, did you?

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Exhibit 30

Doc. 1949

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 137 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 138 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 139 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 140 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 141 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 142 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 143 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 144 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 145 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 146 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 147 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 148 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 149 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 150 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 151 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 152 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 153 of 202

Exhibit 31 MDS-HC (Eley deposition Exh. 1)
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 154 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 155 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 156 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 157 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 158 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 159 of 202

Exhibit 31 Eley Deposition Exhibit 4-scoring sheet
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 160 of 202

InterRAI scales ADL index: points are assigned for each task as described below and then summed. The scores range from 4 to 15, with a 4 being the most independent and 15 the most dependent. The algorithm is provided by InterRAI.
Late loss Activities of Daily Living • Eating (h2g) o Enteral tube feeding (l2d) • Toileting (h2h) • Transfer (h2b) • Bed Mobility (h2a)

Eating
MDSHC QUESTION If l2d = 1 Else If h2g in (.,0,1,2) Else If h2g = 3 Else If g2g in (4,5,6,8)
Transfer
MDSHC QUESTION If h2b in (.,0,1,2) Else If h2b = 3 Else If h2b in (4,5,6,8)

POINTS 3 1 2 3
POINTS 1 3 4

Toileting
MDSHC QUESTION If h2h in (.,0,1,2) Else If h2h = 3 Else If h2h in (4,5,6,8)

POINTS 1
3
4

Bed Mobility
MDSHC QUESTION If h2a in (.,0,1,2) Else If h2a = 3 Else If h2a in (4,5,6,8)

POINTS 1
3
4

IADL index: points are assigned for each of the late loss IADLs and then summed. The scores range from 0 to 3.

Late loss IADLs • Meal Preparation (h1aa) • Managing Medication (h1da) • Phone Use (h1ea)

MDSHC QUESTION Meal Prep (h1aa) If h1aa in (.,0,1) Else If h1aa in (2,3,8)

MDSHC QUESTION Medication (h1da) If h1da in (.,0,1) Else If h1da in (2,3,8)

MDSHC QUESTION Phone Use (h1ea) If h1ea in (.,0,1) Else If h1ea in (2,3,8)

POINTS 0 1

Prepared by: Mandi Jones

Page 1

12.15.2008

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 161 of 202

Exhibit 33 Eley Deposition Exhibit 5 Detailed Explanation of Scoring
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 162 of 202

DETAILED EXPLANATION OF SCORING METHOD

The following address the client's physical functioning in routine personal activities of daily life, for example, dressing, eating, etc. during the LAST 3 DAYS considering all episodes of these activities. For clients who performed an activity independently. be sure to determine and record whether others encouraged the activity or were present to supervise or oversee the activity. ( NOTE - For bathing, code for most dependent single episode in LAST 7 DAYS ) 0. INDEPENDENT -- No help, setup, or oversight -- OR -- Help, setup, oversight provided only 1 or 2 times ( with any task or subtask ) 1. SETUP HELP ONLY -- Article or device provided within reach of client 3 or more times 2. SUPERVISION -- Oversight, encouragement or cueing provided 3 or more times during last 3 days -ORSupervision (1 or more times) plus physical assistance provided only 1 or 2 times (for a total of 3 or more episodes of help or supervision) 3. LIMITED ASSISTANCE -- Client highly involved in activity; received physical help in guided maneuvering of limbs or other non-weight bearing assistance 3 or more times -ORCombination of non-weight bearing help with more help provided only 1 or 2 times during period ( for a total of 3 or more episodes of physical help ) 4. EXTENSIVE ASSISTANC -E- Client performed part of activity on own ( 50% or more of subtasks ), but help of following type(s) were provided 3 or more times:

-- Weight-bearing support -- OR --- Full performance of the full task or a discrete sub-task by another during part (but not all) of last 3 days 5. MAXIMAL ASSISTANCE -- Client involved and completed less than 50% of subtasks on own ( includes 2+ person assist ), received weight bearing help or full performance of certain subtasks 3 or more times 6. TOTAL DEPENDENCE -- Full performance of activity by another 8. ACTIVITY DID NOT OCCUR (regardless of ability )

EATING

POINTS

Tube fed

3

If not tube fed:

Independent or needs

1

setup help or supervision

only

Limited assistance

2

More than limited

3

assistance (extensive or

maximal assistance, total

dependence, or did not

eat

TOILETING. TRANSFERS, AND BED MOBILITY

POINTS

Independent or needs

1

setup help or supervision

only

Limited assistance

3

More than limited

4

assistance (extensive or

maximal assistance, total

dependence, or activity

did not occur

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 163 of 202

Exhibit 34 Letter dated March 4, 2011 from Caroline Brown to Nell Hahn
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 164 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 165 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 166 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 167 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 168 of 202

Exhibit 35 Declaration of Emile A. Barrow, Jr., M.D.
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 169 of 202

DECLARATION OF EMILE A. BARROW, JR., MD Emile A. Barrow, Jr., MD subscribes under penalty of perjury, pursuant to 28 U>S>C § 1746, as follows:
1. My name is Emile A. Barrow, Jr. I am a physician practicing in Monroe, Louisiana. I specialize in internal medicine, cardiovascular disease and nuclear cardiology. I am Board Certified by the Board of Cardiovascular Disease.
2. I am affiliated with St. Francis Medical Center in Monroe, Louisiana. 3. I have been treating Mary Dunn for approximately twenty-four years. 4. Ms. Dunn has a history of cardiovascular disease and has had a stroke. She has
arthritis and lower lumbar disk disease, which combined with a back surgery she had many years ago, causes her to have chronic back pain. 5. Ms. Dunn also has osteoporosis. After a recent fall, which I understand was the result of her attempting to transfer to her bedside commode unattended, she has a fracture in her hip. However, due to other cardiovascular complications, surgery is not recommended at this time. 6. Ms. Dunn uses a wheelchair and needs complete assistance with moving from one surface to another, toileting, bathing, grooming, and dressing. In addition, due to the severity of her pain and her lack of movement someone else must prepare her meals, do her shopping, and take care of her laundry and other household chores. 7. It is my understanding that the maximum number of hours offered by the Longterm Personal Care Services program is thirty-two hours per week, and Ms. Dunn is receiving only thirty hours per week of assistance. I believe that it is medically necessary for Ms. Dunn to receive more than thirty-two hours per week to live safely in her home.
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 170 of 202

8. I believe that if Ms. Dunn had adequate assistance and had not had her service hours reduced, it is possible that she would have had adequate assistance to transfer to her commode and she would not have fallen.
9. It is my professional medical opinion that if Ms. Dunn’s hours are not increased her condition will deteriorate quickly and she will be forced to consider nursing home services.
10. I do not think Ms. Dunn wants to live in a nursing home, and I do not think that she should have her independence taken from her when she has shown that with adequate assistance she can safely stay in her own home.

/s/ Emile Barrow, Jr. Emile Barrow, Jr., MD

11/7/11 Date

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 171 of 202

Exhibit 36 Fourth Declaration of Jeanne Abadie
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 172 of 202

FOURTH DECLARATION OF JEANNE ABADIE Jeanne Abadie subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows:
1. My name is Jeanne Abadie. I work at the Advocacy Center and my title is Compliance Specialist.
2. I have reviewed some of the discovery documents provided to the Plaintiffs’ counsel by the Defendants.
3. Defendants have provided, in response to discovery in this case, a spreadsheet listing 366 LT-PCS recipients who were receiving over 32 hours of LT-PC on September 5, 2010, and who had appealed an adverse action regarding their LTPCS between that date and approximately September 30, 2011. I have checked this list against Advocacy Center intake records, and only 26 of the people on that list have contacted the Advocacy Center. Not all of these contacts appeared to relate to the appeals.
4. The spreadsheet referred to in ¶3 above included the dates and dispositions of the individuals’ appeals of reductions in LT-PCS between September 5, 2010 and September 30, 2011. I have performed calculations on these records, and offer the following summary of my calculations: 300 appeals have been decided, and the agency took an average of 68 days to decide them. The maximum number of days a decided appeal pended was 183. Forty appeals had not been decided as of the date of the spreadsheet, and they had pended an average of 57 days. The longest an open appeal had pended was 314 days.
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 173 of 202

5. Also in response to discovery in this case, Defendants provided a spreadsheet showing the individuals who have requested emergency waiver slots under the process that was begun July 2011, and the status of those requests as of October 11, 2011. I am attaching a copy of that spreadsheet, after removing the columns for name and date of birth. As of October 11, 2011, only three emergency waiver offers had been made. Two were made within two weeks of their request dates, but one (for V.U.S., a class member discussed in Plaintiffs’ Memorandum in Support of their Motion for Preliminary Injunction) was made on September 7, 2011, 43 days after it was requested.
6. Two of the three emergency waiver slot offers shown on the spreadsheet were to individuals for whom the Advocacy Center had requested the slot. In neither of their cases were waiver services started within six weeks of the request. V.U.S.’s waiver slot was requested on July 26, 2011. Her services started on October 18, 2011. E.B. requested an emergency waiver slot on August 24, 2011. His waiver services started October 22, 2011.
7. Rickii Ainey was also referred for an emergency waiver by the Advocacy Center. The referral was made on July 26, 2011. An offer for an emergency waiver slot was made to Ms. Ainey on October 27, 2011, so it is not on the spreadsheet. As of November 14, 2011, her Waiver services have not started.

/s/Jeanne Abadie Name

11/14/11 Date

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 174 of 202

Date of Region of

Request Residence

7/26/11

2

7/26/11

1

7/26/11

6

7/24/11

8

7/26/11

1

7/26/11

4

7/26/11

8

LTPCS Yes Yes Yes Yes Yes Yes Yes

7/26/11

6

Yes

7/26/11

2

Yes

Is the person approved for the maximum number of weekly
No Yes No No No Yes No

Date RO

Called to

If Yes to E Schedule

and F, Date Home

sent to R.O. Visit

N.A.

N.A.

8/25/11

N.A.

N.A.

N.A.

N.A.

10/4/11

10/4/11

N.A.

N.A.

Date of Home Visit
N.A. 8/30/11
N.A. N.A. 10/10/11
N.A.

No

N.A.

N.A.

N.A.

No

N.A.

N.A.

N.A.

Date R.O. sent to Service Review Panel N.A. 9/1/11 N.A. N.A.

Decision of Date

Service Response

Review

Letter

Panel

Sent

N.A.

10/5/11

Denied

N.A.

10/5/11

N.A.

10/5/11

N.A.
N.A. N.A.

N.A.
N.A. N.A.

10/5/11

Date of Service Review Decision
N.A. 9/7/11
N.A. N.A.

Notes

N.A.
N.A. N.A.

accepted normal waiver slot 9/19/11

7/26/11

1

8/3/11

1

8/3/11

1

8/5/11

1

8/11/11

9

8/12/11

6

8/16/11

8

8/17/11

8

8/17/11

2

8/24/11

4

8/24/11

2

8/25/11

6

8/25/11

1

8/25/11

9

9/1/11

9

9/2/11

2

accepted emerg

Yes

Yes

8/25/11

8/29/11 8/30/11 Approved

9/7/11 waiver offer 10/4/11

Yes

Yes

8/25/11

accepted normal

Yes

Yes

N.A.

N.A.

N.A.

N.A. N.A.

N.A. waiver slot 9/14/11

Yes

Yes

8/25/11 8/26/11 8/29/11 8/31/11 Denied

9/7/11

No

N/A

N.A.

N.A.

N.A.

N.A. N.A.

10/5/11 N.A.

Yes

Yes

8/25/11

8/29/11 Denied

9/7/11 accepted NF priority

Yes

Yes

8/25/11

N.A.

N.A.

N.A. N.A.

N.A. offer 9/16/11

Yes

No

N.A.

N.A.

N.A.

N.A. N.A.

10/5/11 N.A.

No

N/A

N.A.

N.A.

N.A.

N.A. N.A.

10/5/11 N.A.

Yes

Yes

8/25/11

8/31/11 Denied

9/7/11

Yes

Yes

8/25/11 8/26/11 8/30/11 8/31/11 Approved

9/7/11

Yes

No

N.A.

N.A.

N.A.

N.A. N.A.

10/5/11 N.A.

Yes

No

N.A.

N.A.

N.A.

N.A. N.A.

N.A.

Yes

Yes

8/29/11

9/2/11 Approved

9/7/11

Yes

Yes

9/6/11

referred to OCDD

No

N/A

N.A.

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 175 of 202

Date of Request

Region of Residence LTPCS

Is the person approved for the maximum number of weekly

If Yes to E and F, Date sent to R.O.

Date RO Called to Schedule
Home Visit

Date of Home Visit

Date R.O. sent to Service Review Panel

Decision of Date

Service Response

Review

Letter

Panel

Sent

9/9/11

9

9/12/11

2

9/15/11

1

10/3/20111 8

10/4/11

2

10/5/11

8

10/11/11

9

Yes

No

N/A

N.A.

Yes

Yes

10/4/11

Yes

Yes

10/4/11

Yes

Yes

Yes

No

Yes

No

Date of Service Review Decision

Notes NF admit 8/5; now in
hospital

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 176 of 202

Exhibit 37 Declaration of Kendra Whitney, M.D.
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Exhibit 38 Declaration of Christopher Lege, M.D.
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Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 182 of 202

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Exhibit 39 Declaration of Robert Ancira, M.D.
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Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 185 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 186 of 202

DECLARATION OF MARK OPERARIO, MD Mark Operario, MD subscribes under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. My name is Mark Operario. I am a physician practicing Internal Medicine and Family Medicine in Columbia, Louisiana. I received by medical degree in 1985 from the Cebu Doctors College of Medicine Philippines. I have been in practice in Columbia since 1995. I am Board Certified in Internal Medicine. 2. I have been treating Eddie M. Shaw for approximately three years. Ms. Shaw is 70 years old and has a history of arthritis and diabetes. 3. Her overall medical condition is not expected to improve. Ms. Shaw seems to be getting weaker, and due to her inactivity it is unlikely that she will lose weight, which also contributes to her lack of mobility. 4. Ms. Shaw has difficulty performing self-care tasks due to her arthritis and her weight. Her hands are significantly affected, so she cannot grip items, such as a knife, fork, hairbrush or soap, which means she needs assistance eating, bathing and performing all hygiene tasks. 5. Ms. Shaw requires assistance with transferring and toileting. She must put her weight on someone or something to go from a seating position to a standing position and vice versa. She cannot walk without holding on to something. When visiting my office, she uses a wheelchair.
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 187 of 202

6. It is my opinion that she cannot safely prepare her own meals or perform household chores, such as housekeeping and laundry. 7. Ms. Shaw has bladder incontinence episodes daily, and should be cleaned thoroughly after each episode to prevent skin breakdowns. 8. I have been monitoring Ms. Shaw’s condition closely, and have been seeing her approximately once every three to four months. 9. To my knowledge, Eddie Shaw is currently receiving 38 hours per week of personal care services at home for her activities of daily living and light housekeeping tasks. The 38 hours a week of personal care service that Ms. Shaw receives in her home are medically necessary for her to continue to live in her home and the minimum amount of help that she requires to remain healthy and stable in the community. 10. If Ms. Shaw’s service hours were reduced, I would expect her health to deteriorate, which would lead to institutionalization in a nursing facility. In my opinion, reducing her current in-home personal care services would jeopardize her health, safety and welfare. 11. Ms. Shaw can live in her home with the appropriate number of hours, and should be given the opportunity to do so. It is my opinion, that she can be better cared while living in her own home than if she were living in a nursing home.

9-29-11 Date

/s/ Mark Operario, M.D. Mark Operario, MD

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 188 of 202

Exhibit 41 36 La Reg 2217-20
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 189 of 202

C. The federal share of expenditures for payments to GNOCHC providers shall be calculated based upon the applicable federal medical assistance percentage rate for the year in which the expenditures were incurred.
D. The department may make an urgent sustainability payment to any eligible GNOCHC clinic that meets the criteria of this Chapter 67 and requires financial support to maintain clinical operations while the department seeks CMS approval for the funding and reimbursement protocol for this waiver program.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 36:
§6903. Reimbursement Methodology A. Urgent Sustainability Payments 1. For each clinic requiring an urgent sustainability
payment, the department shall determine the average payment based upon the clinic’s three-year historical grant award received under the PCASG program.
2. The sustainability payment shall be no more than 25 percent of the average annual payment determined for that clinic during the PCASG period. Prior approval from CMS shall be required for sustainability payments in excess of 25 percent of the clinic’s average PCASG payment. The department may disburse the payment in the first quarter of demonstration year one.
3. Upon CMS approval of the payment methodology, the department shall reconcile the amount of sustainability payments made to clinics during the period of October 1, 2010 through December 31, 2010 against the actual payments that would have been made to the clinics under the approved payment methodology.
a. Any overpayments made to a clinic shall be recouped from the clinic’s payments due in the quarter following the reconciliation.
b. Any underpayments made to a clinic shall be made in the quarter following the reconciliation.
4. The total of all sustainability payments made during the first quarter in demonstration year one shall not exceed $7.5 million. Any sustainability payments made shall be applied to the $30 million total computable annual allotment for demonstration year one.
B. Reimbursement for services rendered during phase one and phase two of the demonstration shall be made according to the rate methodology established by the department and approved by CMS in the funding and reimbursement protocol for this waiver program.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 36:
Implementation of the provisions of this Rule may be contingent upon the approval of the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), if it is determined that submission to CMS for review and approval is required.
Interested persons may submit written comments to Don Gregory, Bureau of Health Services Financing, P.O. Box 91030, Baton Rouge, LA 70821-9030. He is responsible for responding to inquiries regarding this Emergency Rule. A

copy of this Emergency Rule is available for review by interested parties at parish Medicaid offices.

1010#002

Bruce Greenstein Secretary

DECLARATION OF EMERGENCY
Department of Health and Hospitals Bureau of Health Services Financing and
Office of Aging and Adult Services

Home and Community-Based Services Waivers Elderly and Disabled Adults Personal Assistance Services
(LAC 50:XXI.8101, 8105, 8107, 8301, and 8503)

The Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amends LAC 50:XXI.8101, §8105, §8107, §8301 and §8503 in the Medical Assistance Program as authorized by R.S. 36:254 and pursuant to Title XIX of the Social Security Act. This Emergency Rule is promulgated in accordance with the provisions of the Administrative Procedure Act, R.S. 49:953(B)(1) et seq., and shall be in effect for the maximum period allowed under the Act or until adoption of the final Rule, whichever occurs first.
To assure compliance with federal requirements regarding the cost-effectiveness of the Elderly and Disabled Adults (EDA) Waiver Program, the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amended the provisions governing the EDA Waiver to: 1) change the allocation priority of waiver opportunities; 2) implement uniform needs-based assessments to determine the level of support needs and establish an individual cost cap based on need; 3) clarify the service cap for environmental accessibility adaptation services; 4) add shared supports to companion services; and 5) mandate that personal representatives cannot be the paid companion care worker (Louisiana Register, Volume 35, Number 11). The department promulgated an Emergency Rule which amended the provisions governing the EDA Waiver to implement a new service that incorporated the current functions of companion services and further clarified the provisions governing responsible representatives and discharge criteria (Louisiana Register, Volume 36, Number 6). The July 4, 2010 Emergency Rule also reorganized the provisions governing covered services in a more clear and concise manner in the Louisiana Administrative Code.
The department now proposes to amend the provisions of the July 4, 2010 Emergency Rule to: 1) adopt provisions that address requests for services; 2) revise the provisions governing the allocation of waiver opportunities and the resource assessment process; 3) clarify the provisions governing restrictions for paid direct care staff and the place of service; and 4) revise the provisions governing provider responsibilities. This action is being taken to avoid federal sanctions for noncompliance with waiver cost-effectiveness requirements and to ensure long-term financial viability for the Elderly and Disabled Adults Waiver.

Case 3:10-cv-00635-JJB -SCR Doc2u2m17ent 85 11L/o1ui5si/a1na1RegPisategr eVo1l.9306, Noof.21002October 20, 2010

Effective October 20, 2010, the Department of Health and Hospitals, Office of Aging and Adult Services amends the provisions of the July 4, 2010 Emergency Rule governing the Elderly and Disabled Adults Waiver.
Title 50 PUBLIC HEALTH—MEDICAL ASSISTANCE Part XXI. Home and Community-Based Services
Waivers Subpart 7. Elderly and Disabled Adults Waiver Chapter 81. General Provisions §8101. Introduction A. - B. … C. Requests for EDA waiver services shall be accepted from the following individuals: 1. an individual who wants to receive EDA Waiver services; 2. an individual who is legally responsible for a participant who may be in need of EDA Waiver services; or 3. a responsible representative designated by the participant to act on his/her behalf in requesting EDA Waiver services. D. Each participant who requests EDA Waiver services has the option to designate a responsible representative. For purposes of these provisions, a responsible representative shall be defined as the person designated by the participant to act on his/her behalf in the process of accessing and/or maintaining EDA Waiver services. 1. The appropriate form authorized by OAAS shall be used to designate a responsible representative.
a. The written designation of a responsible representative does not give legal authority for that individual to independently handle the participant’s business without his/her involvement.
b. The written designation is valid until revoked by the participant. To revoke the written designation, the revocation must be submitted in writing to OAAS or its designee.
2. The functions of a responsible representative are to: a. assist and represent the participant in the
assessment, care plan development and service delivery processes; and
b. to aid the participant in obtaining all necessary documentation for these processes.
3. The participant’s responsible representative shall not be reimbursed for providing services to the participant.
4. An owner or employee of a EDA Waiver services agency may not be designated as a responsible representative for any recipient who receives services from an agency he/she owns or is employed by.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 30:1698 (August 2004), amended by the Department of Health and Hospitals, Office of the Secretary, Division of Long Term Supports and Services, LR 32:1245 (July 2006), amended by the Department Of Health and Hospitals, Office of Aging and Adult Services, LR 34:1029 (June 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:2447 (November 2009), amended LR 36:

§8105. Programmatic Allocation of Waiver

Opportunities

A. …

B. EDA Waiver opportunities shall be offered to

individuals on the registry according to the following needs-

based priority groups. The following groups shall have

priority for EDA Waiver opportunities, in the order listed:

1. individuals with substantiated cases of abuse or

neglect with Adult Protective Services or Elderly Protective

Services who, absent EDA Waiver services, would require

institutional placement to prevent further abuse and neglect;

2. individuals diagnosed with Amyotrophic Lateral

Sclerosis (ALS);

3. individuals presently residing in nursing facilities

for 90 or more continuous days;

a. - e.NOTE.

Repealed.

4. individuals who are not presently receiving home

and community-based services under another approved

waiver program including, but not limited to the:

a. Adult Day Health Care Waiver;

b. New Opportunities Waiver;

c. Supports Waiver; and

d. Residential Options Waiver;

5. all other eligible individuals on the Request for

Services Registry (RFSR), by date of first request for

services.

C. - D. …

AUTHORITY NOTE: Promulgated in accordance with R.S.

36:254 and Title XIX of the Social Security Act.

HISTORICAL NOTE: Promulgated by the Department of

Health and Hospitals, Office of the Secretary, Bureau of Health

Services Financing, LR 30:1699 (August 2004), amended by the

Department of Health and Hospitals, Office of the Secretary,

Division of Long Term Supports and Services, LR 32:1245 (July

2006), amended by the Department of Health and Hospitals, Office

of Aging and Adult Services, LR 34:1030 (June 2008), amended by

the Department of Health and Hospitals, Bureau of Health Services

Financing and the Office of Aging and Adult Services, LR 35:2447

(November 2009), amended LR 36:

§8107. Resource Assessment Process

A. - C.1. …

2. The applicant/recipient may qualify for an increase

in the annual services budget amount upon showing that:

a. one or more answers are incorrect as recorded on

the MDS-HC (with the exception of the answers in Sections

AA, BB, A, and R of the MDS-HC); or

C.2.b. - D. …

AUTHORITY NOTE: Promulgated in accordance with R.S.

36:254 and Title XIX of the Social Security Act.

HISTORICAL NOTE: Promulgated by the Department of

Health and Hospitals, Bureau of Health Services Financing and the

Office of Aging and Adult Services, LR 35:2447 (November 2009),

amended LR 36:

Chapter 83. Covered Services

§8301. Service Descriptions

A. Support Coordination is services that will assist

recipients in gaining access to necessary waiver and State

Plan services, as well as needed social, educational and other

services, regardless of the funding source for these services.

Support coordinators shall be responsible for ongoing

monitoring of the provision of services included in the

recipient’s approved CPOC.

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B. Transition Intensive Support Coordination is services that will assist recipients who are currently residing in nursing facilities in gaining access to necessary waiver and State Plan services, as well as needed social, educational and other services, regardless of the funding source for these services. Support coordinators will initiate and oversee the process for assessment and reassessment, as well as be responsible for ongoing monitoring of the provision of services included in the recipient’s approved CPOC.
C. Environmental Accessibility Adaptation is necessary physical adaptations made to the home to ensure the health, safety, and welfare of the recipient, or enable the recipient to function with greater independence in the home. Without these necessary adaptations, the recipient would require institutionalization. These services must be provided in accordance with state and local laws governing licensure and/or certification.
1. There is a lifetime cap of $3,000 per recipient for this service.
D. Personal Emergency Response System (PERS). This is an electronic device which enables the recipient to secure help in an emergency. PERS services are limited to specific recipients.
5. - 5.e.Repealed. E. Personal Assistance Services (PAS) provides assistance to participants in performing the activities of daily living and household chores necessary to maintain the home in a clean, sanitary and safe environment, based on their CPOC.
1. PAS may also include the following services based on the CPOC:
a. protective supervision provided solely to assure the health and welfare of a participant with cognitive/memory impairment and/or physical weakness;
b. supervising or assisting, as approved in the CPOC, a participant with functional impairments with health related tasks (any health related procedures governed under the Nurse Practice Act) if he/she is unable to do so without supports according to applicable delegation/medication administration;
c. supervising or assisting the participant, who has no supports and is unable to do so without supports or has no available natural supports, to socialize in his/her community according to the desired outcomes included in the CPOC;
d. escort services, which are used to accompany the individual outside of the home during the performance of tasks related to instrumental activities of daily living and health maintenance, and to provide the same assistance as would be rendered in the home; and
e. extension of therapy services. i. For purposes of these provisions, extension of
therapy services may include instances where licensed practitioners may provide instruction to the worker so he/she is able to better assist the participant.
ii. Licensed therapists may choose to instruct the workers on the proper way to assist the participant in followup therapy sessions. This assistance and support provides reinforcement of instruction and aids in the rehabilitative process.
iii. A registered nurse may instruct a worker to perform basic interventions with participants that would increase and optimize functional abilities for maximum

independence in performing activities of daily living, such as range of motion exercises.
2. PAS is provided in the participant’s home unless the participant requests to receive PAS outside of the home.
a. PAS shall not duplicate the services provided to a participant who resides in an assisted living facility.
b. The participant must be present while PAS services are being provided in the home.
3. Service Restrictions a. PAS shall not be provided during the same
designated hours or time period that a participant receives Adult Day Health Care services.
b. Participants who receive PAS cannot receive Long-Term Personal Care Services.
4. PAS services may be provided by one worker for up to three waiver participants who live together and who have a common direct service provider.
a. Waiver participants may share PAS service staff when it is agreed to by the participants and health, safety and welfare can be assured for each individual.
b. Shared PAS services will be reflected on the plan of care of each participant.
5. The following individuals are prohibited from being reimbursed for providing services to a participant:
a. the participant’s spouse; b. the participant’s curator; c. the participant’s tutor; d. the participant’s legal guardian; e. the participant’s responsible representative; or f. the person to whom the participant has given Representative and Mandate authority (also known as power of attorney). 6. Participants are not permitted to receive PAS while living in a home or property owned, operated, or controlled by a provider of services who is not related by blood or marriage to the participant. F. Transition Services. These services assist an individual, who has been approved for an EDA Waiver opportunity, to leave a nursing facility and return to live in the community. 1. Service Limit. Funds are available one time per lifetime for specific items as approved in the recipient’s CPOC. G. Adult Day Health Care (ADHC). ADHC services are a planned, diverse daily program of individual services and group activities structured to enhance the recipient’s physical functioning and to provide mental stimulation. Services are furnished for five or more hours per day (exclusive of transportation time to and from the ADHC facility) on a regularly scheduled basis for one or more days per week, or as specified in the plan of care. An adult day health care facility shall, at a minimum, furnish the following services: 1. individualized training or assistance with the activities of daily living (toileting, grooming, eating, ambulation, etc.); 2. health and nutrition counseling; 3. an individualized, daily exercise program; 4. an individualized, goal directed recreation program; 5. daily health education; 6. medical care management; 7. one nutritionally balanced hot meal and two snacks served each day;

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8. nursing services that include the following individualized health services:
a. monitoring vital signs appropriate to the diagnosis and medication regimen of each recipient no less frequently than monthly;
b. administering medications and treatments in accordance with physicians’ orders;
c. monitoring self-administration of medications while the recipient is at the ADHC facility; and
NOTE: All nursing services shall be provided in accordance with acceptable professional practice standards.
d. transportation to and from the facility.
NOTE: If transportation services that are prescribed in any participant’s approved CPOC are not provided by the ADHC facility, the facility’s reimbursement rate shall be reduced accordingly.
H. Providers of EDA Waiver services must have a valid, current license for their respective service program, if applicable, and furnish services in accordance with the applicable licensing and/or certification requirements.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 30:1699 (August 2004), amended by the Department of Health and Hospitals, Office of the Secretary, Division of Long Term Supports and Services, LR 32:1245 (July 2006), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:2448 (November 2009), amended LR 36: Chapter 85. Admission and Discharge Criteria
§8503. Admission Denial or Discharge Criteria A. Admission shall be denied or the participant shall be
discharged from the EDA Waiver Program if any of the following conditions are determined.
1. - 7. … 8. It is not cost effective or appropriate to serve the individual in the EDA Waiver. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 30:1699 (August 2004), amended by the Department of Health and Hospitals, Office of the Secretary, Division of Long Term Supports and Services, LR 32:1246 (July 2006), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 34:1030 (June 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36: Chapter 89. Provider Responsibilities
§8901. General Provisions A. Any provider of services under the EDA Waiver shall
abide by and adhere to any federal or state laws, rules, policy, procedures, or manuals issued by the department. Failure to do so may result in sanctions.
B. The provider agrees to not request payment unless the participant for whom payment is requested is receiving services in accordance with the EDA Waiver Program provisions.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 30:1700 (August 2004), amended by the Department of Health and Hospitals, Office of the Secretary, Division of Long Term Supports and Services, LR 32:1247 (July

2006), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36: §8903. Reporting Requirements
A. Support coordination and direct service providers are obligated to report changes to the department that could affect the waiver participant's eligibility including, but not limited to, those changes cited in the denial or discharge criteria.
B. Support coordination and direct service providers are responsible for documenting the occurrence of incidents or accidents that affect the health, safety and welfare of the recipient and completing an incident report. The incident report shall be submitted to the department with the specified requirements.
AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act.
HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 36:
Implementation of the provisions of this Rule may be contingent upon the approval of the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), if it is determined that submission to CMS for review and approval is required.
Interested persons may submit written comments to Don Gregory, Bureau of Health Services Financing, P.O. Box 91030, Baton Rouge, LA 70821-9030. He is responsible for responding to inquiries regarding this Emergency Rule. A copy of this Emergency Rule is available for review by interested parties at parish Medicaid offices.

1010#023

Bruce D. Greenstein Secretary

DECLARATION OF EMERGENCY
Department of Health and Hospitals Bureau of Health Services Financing

Inpatient Hospital ServicesMajor Teaching Hospitals Qualifying Criteria
(LAC 50:V.1301-1309)

The Department of Health and Hospitals, Bureau of Health Services Financing proposes to adopt LAC 50:V.1301-1309 in the Medical Assistance Program as authorized by R.S. 36:254 and pursuant to Title XIX of the Social Security Act. This Emergency Rule is promulgated in accordance with the provisions of the Administrative Procedure Act, R.S. 49:953(B)(1) et seq., and shall be in effect for the maximum period allowed under the Act or until adoption of the final Rule, whichever occurs first.
The Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing adopted a rule that established the reimbursement of major and minor teaching hospitals as peer groups under the prospective reimbursement methodology for hospitals (Louisiana Register, Volume 20, Number 6). The department amended the June 20, 1994 Rule to adopt new criteria for the reimbursement of graduate medical education (GME) pursuant to Section 15 Schedule 09 of Act 19 of the 1998

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Exhibit 42 Doc. 2482 Email from Steven Buco to Rick Henley
Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 194 of 202

Pitts_0002482.htm

11/13/11 6:12 AM

From: Sent: To: Cc:
Subject:

Steven Buco <sbuco@statres.com> Wednesday, January 12, 2011 9:31 AM Rick Henley <Rick.Henley@LA.GOV> Candace Ricard <Candace.Ricard@LA.GOV>; Randy Davidson <Randy.DAVIDSON@LA.GOV> Pitts et al. vs Greenstein - Request for Production of Documents Item 24

The number of individuals on the EDA registry as of 1/11/11 is 19,156. The number of individuals on the ADHC registry as of 1/11/11 is 666.
Steve 225.767.0501 President Statistical Resources, Inc.
225.767.0501
PRIVACY AND CONFIDENTIALITY WARNING This e-mail may contain Protected Health Information, Individually Identifiable Health Information and other information which is protected by law. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any review, disclosure/re-disclosure, copying, storing, distributing or the taking of action in reliance on the content of this e-mail and any attachments thereto, is strictly prohibited. If you have received this E-mail in error, please notify the sender immediately and destroy the contents of this E-mail and its attachments by deleting any and all electronic copies and any and all hard copies regardless of where they are maintained or stored.

file:///Users/nhahn/Dropbox/pitts%20v.%20dhh/Drafts/Exhibits%20for%20reply%20to%20PI/Pitts_0002482.htm
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Page 1 of 1

Exhibit 43 Declaration of Gregory Ward, M.D.
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Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 197 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 198 of 202

Case 3:10-cv-00635-JJB -SCR Document 85 11/15/11 Page 199 of 202

Exhibit 44 37 La Reg 1113 (April 20, 2011)
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outpatient hospital services rendered by non-rural, non-state hospitals designated as major teaching hospitals.
Title 50 PUBLIC HEALTHʊMEDICAL ASSISTANCE
Part V. Hospital Services Subpart 5. Outpatient Hospitals Chapter 65. Teaching Hospitals Subchapter B. Reimbursement Methodology §6533. Major Teaching Hospitals A. Effective for dates of service on or after October 1, 2009, a quarterly supplemental payment shall be issued to qualifying non-rural, non-state acute care hospitals for outpatient services rendered during the quarter. These payments shall be used to facilitate the development of public-private collaborations to preserve access to medically necessary services for Medicaid recipients. Aggregate payments to qualifying hospitals shall not exceed the maximum allowable cap for the state fiscal year. 1. Qualifying Criteria. In order to qualify for the supplemental payment, the non-rural, non-state acute care hospital must: a. be designated as a major teaching hospital by the department in state fiscal year 2009; b. have provided at least 25,000 Medicaid acute care paid days for state fiscal year 2008 dates of service; c. have provided at least 4,000 Medicaid distinct part psychiatric unit paid days for state fiscal year 2008 dates of service; and d. provided at least 20,000 Medicaid outpatient paid visits for state fiscal year 2008 dates of service. 2. Payments shall be distributed quarterly based on Medicaid paid claims data from service dates in state fiscal year 2009. 3. Payments are applicable to Medicaid service dates provided during each quarter and shall be discontinued for the remainder of the state fiscal year in the event that the maximum payment cap is reached or by June 30, 2011, whichever occurs first. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 37: Interested persons may submit written comments to Don Gregory, Bureau of Health Services Financing, P.O. Box 91030, Baton Rouge, LA 70821-9030. He is responsible for responding to all inquiries regarding this Emergency Rule. A copy of this Emergency Rule is available for review by interested parties at parish Medicaid offices.

1104#059

Bruce D. Greenstein Secretary

DECLARATION OF EMERGENCY
Department of Health and Hospitals Bureau of Health Services Financing
and Office of Aging and Adult Services
Personal Care ServicesʊLong-Term Policy Clarifications and Service Limit Reduction
(LAC 50:XV.12901-12909 and 12911-12915)
The Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amend LAC 50:XV.12901-12909 and §§1291112915 in the Medical Assistance Program as authorized by R.S. 36:254 and pursuant to Title XIX of the Social Security Act. This Emergency Rule is promulgated in accordance with the provisions of the Administrative Procedure Act, R.S. 49:953(B)(1) et seq., and shall be in effect for the maximum period allowed under the Act or until adoption of the final Rule, whichever occurs first.
Senate Resolution 180 and House Resolution 190 of the 2008 Regular Session of the Louisiana Legislature directed the department to develop and implement cost control mechanisms to provide the most cost-effective means of financing the Long-Term Personal Care Services (LT-PCS) Program. In compliance with these legislative directives, the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services amended the provisions governing the LT-PCS Program to: 1) implement uniform needs-based assessments for authorizing service units; 2) reduce the limit on LT-PCS service hours; 3) mandate that providers must show cause for refusing to serve clients; and 4) incorporate provisions governing an allocation of weekly service hours (Louisiana Register, Volume 35, Number 11).
The department promulgated an Emergency Rule which amended the provisions governing long-term personal care services to: 1) establish provisions that address requests for services; 2) revise the eligibility criteria for LT-PCS; 3) clarify the provisions governing restrictions for paid direct care staff and the place of service; and 4) reduce the maximum allowed service hours (Louisiana Register, Volume 36, Number 8). The department promulgated an Emergency Rule which amended the provisions of the September 5, 2010 Emergency Rule to clarify the provisions of the Rule (Louisiana Register, Volume 36, Number 12). The department now proposes to amend the provisions of the December 20, 2010 Emergency Rule to further clarify the provisions of the Rule. This action is being taken to ensure that these provisions are promulgated in a clear and concise manner.
Effective April 20, 2011, the Department of Health and Hospitals, Bureau of Health Services Financing and the

Louisiana RegistCer aVsoel. 337:,1N0o.-0c4v-A0p0ril6230,52-0J1J1 B -SCR Doc1u1m12ent 85 11/15/11 Page 201 of 202

Office of Aging and Adult Services amend the provisions of the December 20, 2010 Emergency Rule governing longterm personal care services.
Title 50 PUBLIC HEALTH—MEDICAL ASSISTANCE
Part XV. Services for Special Populations Subpart 9. Personal Care Services
Chapter 129. Long Term Care §12901. General Provisions
A. The purpose of personal care services is to assist individuals with functional impairments with their daily living activities. Personal care services must be provided in accordance with an approved service plan and supporting documentation. In addition, personal care services must be coordinated with the other Medicaid and non-Medicaid services being provided to the recipient and will be considered in conjunction with those other services.
B. Each recipient requesting or receiving long-term personal care services (LT-PCS) shall undergo a functional eligibility screening utilizing an eligibility screening tool called the Level of Care Eligibility Tool (LOCET), or a subsequent eligibility tool designated by the Office of Aging and Adult Services (OAAS).
C. Each LT-PCS applicant/recipient shall be assessed using a uniform assessment tool called the Minimum Data Set-Home Care (MDS-HC) or a subsequent assessment tool designated by OAAS. The MDS-HC is designed to verify that an individual meets eligibility qualifications and to determine resource allocation while identifying his/her need for support in performance of activities of daily living (ADLs) and instrumental activities of daily living (IADLs). The MDS-HC assessment generates a score which measures the recipient’s degree of self-performance of late-loss activities of daily living during the period just before the assessment.
1. The late-loss ADLs are eating, toileting, transferring and bed mobility. An individual’s assessment will generate a score which is representative of the individual’s degree of self-performance on these four lateloss ADLs.
C.2. - C.7. Repealed. D. Based on the applicant/recipient’s uniform assessment score, he/she is assigned to a level of support category and is eligible for a set allocation of weekly service hours associated with that level.
1. If the applicant/recipient disagrees with his/her allocation of weekly service hours, the applicant/recipient or his/her responsible representative may request a fair hearing to appeal the decision.
2. The applicant/recipient may qualify for more hours if it can be demonstrated that:
a. one or more answers to the questions involving late-loss ADLs are incorrect as recorded on the assessment; or
b. he/she needs additional hours to avoid entering into a nursing facility.
E. Requests for personal care services shall be accepted from the following individuals:
1. a Medicaid recipient who wants to receive personal care services;
2. an individual who is legally responsible for a recipient who may be in need of personal care services; or

3. a responsible representative designated by the recipient to act on his/her behalf in requesting personal care services.
F. Each recipient who requests PCS has the option to designate a responsible representative. For purposes of these provisions, a responsible representative shall be defined as the person designated by the recipient to act on his/her behalf in the process of accessing and/or maintaining personal care services.
1. The appropriate form authorized by OAAS shall be used to designate a responsible representative.
a. The written designation of a responsible representative does not give legal authority for that individual to independently handle the recipient’s business without his/her involvement.
b. The written designation is valid until revoked by the recipient. To revoke the written designation, the revocation must be submitted in writing to OAAS or its designee.
2. The functions of a responsible representative are to: a. assist and represent the recipient in the
assessment, care plan development and service delivery processes; and
b. to aid the recipient in obtaining all necessary documentation for these processes.
F.3 - F.4. Repealed. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 29:911 (June 2003), amended LR 30:2831 (December 2004), amended by the Department of Health and Hospitals, Office of Aging and Adult Services, LR 32:2082 (November 2006), LR 34:2577 (December 2008), amended by the Department of Health and Hospitals, Bureau of Health Services Financing and the Office of Aging and Adult Services, LR 35:2450 (November 2009), LR 37: §12902. Participant Direction Option A. The Office of Aging and Adult Services implements a pilot program, the Louisiana Personal Options Program (La POP), which will allow recipients who receive long term personal care services (LT-PCS) to have the option of utilizing an alternative method to receive and manage their services. Recipients may direct and manage their own services by electing to participate in La POP, rather than accessing their services through a traditional personal care agency.
1. La POP shall be implemented through a phase-in process in Department of Health and Hospitals administrative regions designated by OAAS.
A.2. - B.1. ... 2. With the assistance of a services consultant,
participants develop a personal support plan based on their approved plan of care and choose the individuals they wish to hire to provide the services.
C. - E.1. ... 2. Change in Condition. The participant’s ability to
direct his/her own care diminishes to a point where he/she can no longer do so and there is no responsible representative available to direct the care.
3. Misuse of Monthly Allocation of Funds. The LA POP participant or his/her responsible representative uses

Case 3:10-cv-00635-JJB -SCR Doc1u1m13ent 85 11/1L5o/u1is1ianaPReaggiseter2V0o2l. 3o7f, N2o0. 204 April 20, 2011

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al. PLAINTIFFS
V. BRUCE GREENSTEIN, et al.

* C.A. No. 3:10-cv-00635-JJB-SCR

*

*

* JUDGE JAMES J. BRADY

*

*

* MAGISTRATE JUDGE STEPHEN

*

C. RIEDLINGER

*

* CLASS ACTION

JOINT MOTION FOR ORDER APPROVING CLASS ACTION SETTLEMENT AND ORDERING COMPLIANCE

The parties seek approval of the Settlement Agreement attached hereto as Exhibit

1, pursuant to Rule 23(e), Fed. R. Civ. Pro. and an order that the parties comply with its

terms. In support of this motion, the parties would show the Court:

1. For the reasons set forth in the attached Memorandum, the parties assert that

the proposed Settlement Agreement is fair, reasonable, and adequate.

2. The Settlement Agreement is expressly conditioned on this Court’s entering an

order requiring the parties to comply with the terms of the Agreement.

3. The class has been given notice of the Settlement Agreement through

publication of notice in eight Louisiana newspapers prior to January 30, 2012.

4. The Settlement Agreement further provides for the acceptance by Plaintiffs’

counsel of the sum of $250,000 for attorneys’ fees and costs for work done through the

date of final approval of the Settlement Agreement, provided that the Court enters an

order requiring Defendants to pay this amount to Plaintiffs’ counsel within ten days of the

Court’s final approval of the Settlement Agreement. Plaintiffs’ counsel will provide

appropriate W-9 forms to Defendants’ counsel to facilitate payment.

1 Case 3:10-cv-00635-JJB -SCR Document 100 02/15/12 Page 1 of 4

5. The class was been given notice of this provision of the Settlement Agreement

in the publication notice described above.

6. The attached declarations and exhibits show that the lodestar sought by

Plaintiffs’ counsel was $374,000, made up of the following amounts for the work of the

attorneys and paralegals for the Plaintiff class:

Hours

Hourly rate

Lodestar

Nell Hahn

621.45

$300

$186,435

Jeanne Abadie

518.60

$75

(paralegal)

$ 38,895

Ken Zeller

39.30

$450

$17,640

Stephen F. Gold

217.26

$585

$128,760

7. This lodestar understates the number of hours actually spent by Plaintiffs’ counsel, because it includes no work done after December 22, 2011, even though considerable additional work was performed by class counsel after that date.
8. The attached declarations and exhibits also show the qualifications and experience of Plaintiffs’ counsel. They show that the amount of fees for plaintiffs’ counsel established by the agreement was arrived at after substantially reducing the number of hours compensated. After exercising billing judgment to eliminate hours that were duplicative, excessive, or otherwise not compensable, plaintiffs’ counsel calculated a lodestar amount. The lump sum counsel eventually agreed to represents less than 70% of this substantially-reduced amount.
WHEREFORE the parties request that this Court enter an Order approving the Settlement Agreement, ordering the parties to comply with its terms.
2 Case 3:10-cv-00635-JJB -SCR Document 100 02/15/12 Page 2 of 4

DATED: February 15, 2012

Respectfully submitted,
/s/ Nell Hahn Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 311 Facsimile (337) 237-0486 nhahn@advocacyla.org
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
Ken Zeller D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Facsimile: (202) 434-6424 Counsel for the Plaintiffs
/s/ Kimberly Humbles Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov Michael J. Coleman La. Bar No. 22756 Michael.Coleman@la.gov Charles E. Daspit La. Bar No. 4559 Charles.Daspit@la.gov Neal R. Elliott La. Bar No. 24084

3 Case 3:10-cv-00635-JJB -SCR Document 100 02/15/12 Page 3 of 4

Neal.Elliott@la.gov Stephen R. Russo La. Bar No. 23284 Stephen.Russo@la.gov LOUISIANA DEPARTMENT OF
HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232 Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 Matthew Berns mberns@cov.com N.J. Bar No. 037232009 Philip Peisch ppeisch@cov.com Mass. Bar No. 675412 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291 Counsel for Defendants
4 Case 3:10-cv-00635-JJB -SCR Document 100 02/15/12 Page 4 of 4

 
 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al. VERSUS BRUCE GREENSTEIN, et al.

* * * * *
ORDER

C.A. No. 3:10-cv-00635-JJB-SCR JUDGE JAMES J. BRADY CLASS ACTION

In accordance with the oral reasons assigned:

Notice of the proposed settlement of this action having been given the class as

directed by the Court, in accordance with Fed. R. Civ. P. 23(e), the Court hereby

approves the Settlement Agreement.

The Comt finds that the provisions of the Settlement Agreement, including the

award of fees and costs to class counsel, are fair and reasonable.

It is hereby ORDERED that the parties to this action shall comply with the terms of

the Settlement Agreement, which is incorporated herein, and that this Court will retain

jurisdiction of this action for the purpose of ensuring that the agreement is enforced.

It is further ORDERED that the Defendants, Bruce Greenstein in his official

capacity as Secretary of the Louisiana Department of Health and Hospitals, and the

Louisiana Department of Health and Hospitals, shall pay the sum of two hundred and

fifty thousand dollars ($250,000), for attorneys' fees and costs for work done through this date, to the Advocacy Center, on or before the 2i11 day of February, 2012.
· ·fA Signed in Baton Rouge, Louisiana, on Febru 1 , 2012.

JAMES J. BRAD STRICT JUDGE - L-EDISTRICT OF LOUISIANA

Case 3:10-cv-00635-JJB -SCR Document 101 02/17/12 Page 1 of 1

 
 EXHIBIT 1
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, et al.

*

*

PLAINTIFFS

*

*

v.

*

*

BRUCE GREENSTEIN, et al. *

*

DEFENDANTS

*

C.A. No. 3:10-cv-00635-JJB-SCR JUDGE JAMES J. BRADY MAGISTRATE JUDGE STEPHEN C. RIEDLINGER CLASS ACTION

SETTLEMENT AGREEMENT This Settlement Agreement (“Settlement Agreement” or “Agreement”) is entered into

between Plaintiffs Rickii Ainey, Kenneth Roman, and Elizabeth Foster, by her next friend Donna

Zeno (“Plaintiffs”), on behalf of themselves and a class of other similarly situated persons, and

Defendants Louisiana Department of Health and Hospitals (“DHH”) and its Secretary, Bruce

Greenstein (“Defendants”). Plaintiffs and Defendants are referred to herein as “the Parties.”

On September 22, 2010, Plaintiffs filed this action in the United States District Court for

the Middle District of Louisiana (the “District Court”). On June 1, 2011, Plaintiffs filed a

Complaint in Intervention. The Complaint in Intervention alleges that the reduction in maximum

hours of Long-Term Personal Care Services imposed pursuant to its Emergency Rule

promulgated in 36 La. Reg. 1752 (August 20, 2010), La. Admin. Code tit. 50, § 12915(A),

deprives Plaintiffs of critical services that are necessary to permit them to remain safely in their

homes, and that this violates the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”)

and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”), and the

federal regulations implementing these statutes, by placing them at risk of unnecessary

institutionalization in nursing homes. Defendants deny these claims.

Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 2 of 27

The Parties mutually desire to resolve the claims asserted by Plaintiffs in this action without the need for further litigation, and without any admission of liability by any party. Accordingly, the Parties hereby agree to compromise, settle and resolve all of the claims asserted by Plaintiffs in this action on the following terms and conditions: 1. Definitions (a) Class: All persons who were approved to receive more than 32 hours of services through
Louisiana’s Long-Term Personal Case Services (LT-PCS) program as of September 5, 2010, and who are still approved to receive LT-PCS or who have a request for prior authorization pending or in process. (b) Long-Term Personal Care Services (LT-PCS): the personal care services funded by Louisiana Medicaid and provided to eligible individuals in their homes pursuant to Louisiana’s Medicaid State plan and regulations at La. Admin. Code tit. 50, Part XV, Subpart 9. (c) Community Choice Waiver (CC Waiver): a program of home- and community-based services administered by DHH’s Office of Aging and Adult Services pursuant to § 1915(c) of the Social Security Act, the terms of the waiver documents filed with the Centers for Medicare and Medicaid Services, and regulations at La. Admin. Code tit. 50, Part XXI. (d) Centers for Medicare and Medicaid Services (CMS): the agency within the United States Department of Health and Human Services that administers the federal Medicaid program. (e) Expedited Waiver Offer: an offer of an opportunity to receive services under the CC Waiver on an expedited basis, ahead of others on the Request for Services Registry.
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2. Notice to class members of opportunity to obtain expedited waiver slots (a) DHH has sent one of the notices attached hereto as Attachment A to each individual who
was approved for more than 32 hours of LT-PCS on September 5, 2010, and has since been approved for exactly 32 hours of LT-PCS, informing them that they may request an expedited waiver offer. (b) DHH will send the notice attached hereto as Attachment B to all other class members. In order to facilitate timely processing of requests for expedited waiver services, DHH will stagger the notices into three equally-sized groups. DHH will send notice to one-third of these other class members by January 16, 2012 or seven days after the Court preliminarily approves the Settlement Agreement, whichever is later. It will send notices to the second group of other class members by February 13, 2012; and to the third group of other class members by March 9, 2012. DHH will use its best efforts to prioritize the groups based on the order in which class members’ LT-PCS were reduced after September 5, 2010. For example, class members whose LT-PCS were first reduced will receive the notice first. 3. Provision of expedited waiver slots (a) The class members described in ¶ 2(a) above may request an expedited waiver offer at any time, so long as they are approved to receive 32 hours of LT-PCS. If their hours of LT-PCS are reduced to below 32 prior to June 30, 2012, they will be permitted to apply for an expedited waiver slot until June 30, 2012, and will be provided Attachment B. (b) The class members described in ¶ 2(b) above may request an expedited waiver opportunity by June 30, 2012. If they are allocated 32 hours of LT-PCS, either through reassessment or through appeal, they may request an expedited waiver offer at any time following such allocation.
3 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 4 of 27

(c) Subject to the provisions of Section 4 below, DHH will accept and evaluate the requests received before June 30, 2012 of all class members described in Section 2 above who contact DHH seeking an expedited waiver offer (including phone requests), and will grant a request if the class member shows that, considering the totality of the circumstances, he or she will have a decline in mental or physical health and is at serious risk of nursing facility placement in the absence of an expedited waiver offer. Consistent with DHH’s rules and practices, the following criteria shall be considered in determining whether the individual will require nursing facility placement in the absence of an expedited waiver offer: i. support through other programs is either unavailable or inadequate to prevent nursing facility placement; ii. the death or incapacitation of an informal caregiver leaves the person without other supports; iii. the support of an informal caregiver is not available due to a family crisis; iv. the person lives alone and has no access to informal support; v. or, for other reasons, the person lacks access to adequate informal support to prevent nursing facility placement.
(d) Applicants who are offered an expedited waiver opportunity must still satisfy all criteria for certification into the CC Waiver, including the medical, financial, and health and welfare requirements set forth in the applicable state and federal regulations and in the waiver documents filed with CMS. See 42 C.F.R. § 435.217; 42 C.F.R. § 441.302; La. Admin. Code tit. 50, Part XXI, §§ 8901, 8903.
4 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 5 of 27

(e) DHH will continue apply the criteria set forth in ¶ 3(c) to all class members receiving 32 hours of LT-PCS who request an expedited waiver slot after June 30, 2012 but before the end date of the Agreement.
4. Appeals (a) This agreement neither establishes a right to appeal the denial of a request for an
expedited waiver opportunity nor precludes any claim that such a right exists. (b) Solely for the purpose of this agreement, DHH agrees that class members described in
Section 2 above will be permitted to appeal any denial of a request for an expedited waiver slot if DHH receives the request for the expedited waiver slot by June 30, 2012. (c) DHH will notify all class members described in Section 2 whose pre-June 30, 2012 requests are not granted that they may appeal this determination, by sending the notice attached hereto as Attachment C. 5. Interim services (a) For the purposes of this agreement, DHH may in its discretion provide temporary, informal accommodations to class members who have been granted an expedited waiver slot for the period before waiver services begin. Such accommodations may include, but are not limited to, providing the class member with additional hours of LT-PCS until waiver services commence. (b) For the purposes of this agreement, DHH may in its discretion provide temporary, informal accommodations to class members who have requested an expedited waiver slot. Such accommodations may include, but are not limited to, providing the class member with additional hours of LT-PCS until DHH acts on the request. 6. Additional CC Waiver slots
5 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 6 of 27

(a) Within one week of preliminary approval of this Agreement, DHH will submit a waiver amendment to CMS to increase the number of CC Waiver slots by 200, to a total of 4,803. Upon CMS’s approval of the amendment, DHH will reserve these 200 slots exclusively for class members eligible for expedited waiver slots through December 31, 2012, unless DHH determines, based on the number of class members applying for such slots, that fewer than 200 slots will be needed for class members. After December 31, 2012, or at such time as DHH determines that fewer than 200 slots will be needed for class members, DHH shall include any remaining slots in the general pool of CC Waiver slots to be offered to other individuals on the Request for Services Registry.
(b) If the 100 slots reserved for individuals eligible for expedited waiver slots under DHH’s existing regulations and the 200 slots reserved for class members pursuant to ¶ 6(a) are insufficient to accommodate the number of class members granted expedited waiver slots, DHH will ensure that additional services are provided to class members who would qualify for an expedited waiver offer, either by (1) using other available slots in the CC Waiver; (2) adding additional expedited slots to the CC Waiver; or (3) providing additional LT-PCS hours, up to a maximum of 42 hours per week, until such time as an expedited slot becomes available.
(c) DHH will use its best efforts to have its request for 500 additional CC Waiver slots included in the Division of Administration budget request for state fiscal year 2013. The Advocacy Center and AARP will use their best efforts to support the inclusion of the additional CC Waiver slots in the state budget for state fiscal year 2013.
7. Attorneys’ fees and expenses Plaintiffs and Plaintiffs’ Counsel agree to accept $250,000 as the full and final amount of
all attorneys’ fees and costs for work done through the date of the final approval of this
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Settlement Agreement, provided that the Court enters an order requiring Defendants to pay this amount to Plaintiffs’ counsel within ten days of the date of the Court’s final approval of the Settlement Agreement. Plaintiffs’ counsel agrees that any attorneys’ fees and costs for work related to this settlement done after final approval of the Settlement Agreement are limited to fees and costs for work performed in successfully obtaining judicial enforcement of the Settlement Agreement. The Court will not award fees and costs associated with any administrative appeal of the denial of an expedited waiver slot. 8. Reports
DHH will report the following to Plaintiffs’ counsel, in both a Microsoft Excel document and in a .pdf document, within the time frames set forth below: (a) By February 1, 2012, the names of all class members who have already been sent notices
attached as Attachment A, the dates that the notices were sent, and the addresses to which the notices were sent. (b) Within ten days of DHH sending Attachment B to other class members (those approved for less than 32 hours), the names and addresses (to which notices were sent) of these class members. (c) At the end of each month, the names of the class members for whom notices were returned as undeliverable. (d) By the 15th of every month, beginning March 15, 2012, and ending at the settlement ending date, the following data from the previous calendar month: the number of class members who requested expedited waiver slots, the number of class members granted interim services, the number of requests for expedited waiver slots from class members that were granted, the number of requests for expedited waiver slots from class members that were denied, the number of requests for expedited waiver slots from class members
7 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 8 of 27

pending as of the last day of the previous calendar month, the number of appeals from class members of denials of requests for expedited waiver slots, and the number of those appeals that were granted, the number that were denied, and the number that were otherwise resolved. These monthly reports will also include the names of all class members whose requests for expedited waiver slots were granted or denied during the previous calendar month. (e) By February 29, 2012, the most recent information available as to the telephone numbers of class members and their other contacts, as an update to information that was provided to Plaintiffs’ counsel in the document entitled “Master Spreadsheet-Interrogatory 2 (CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER).xls” on or about July 11, 2011. 9. Relief for specific individuals (a) C.D. will be allowed to apply and be considered for an expedited waiver offer under the terms and conditions set forth in Sections 3 to 6 above. (b) Class members Elizabeth Foster, E.M.S., P.M., R.M., B.F., E.C., and M.D. will each be offered a CC Waiver opportunity. (c) Defendants agree to provide this specific relief to the above individuals as a settlement of disputed claims only. Defendants do not necessarily agree that any of these individuals meet the standards set forth in ¶ 3(c) for granting an expedited waiver offer. 10. Enforcement: (a) The enforceability of this Settlement Agreement ends on December 31, 2012, unless (i) any of the class members’ requests for an expedited waiver slot received prior to June 30, 2012 have yet to be acted upon by DHH; (ii) the Division of Administrative Law (“DAL”) has not yet issued a final decision on an appeal of the denial of such a request;
8 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 9 of 27

or (iii) CC Waiver services have not begun for any class member who has been granted an expedited slot through a pre-June 30, 2012 request under this Agreement and who has accepted the waiver slot and meets the criteria set forth in ¶ 3(d). (b) If the enforceability of the agreement does not end on December 31, 2012 because of the existence of any of the conditions set forth in ¶ 10(a), this settlement agreement will remain enforceable until such conditions have been met. (c) This Agreement shall be enforceable only by motion filed at any time after February 1, 2012, and before the end date, as defined in ¶¶ 10(a)-(b), subject to the following procedures: i. No less than ten (10) days prior to filing such a motion plaintiffs shall notify
defendants of any alleged noncompliance with the Agreement and request a meeting for the purpose of attempting to resolve the problems identified by the plaintiffs regarding the defendants’ alleged noncompliance; ii. Should the Parties fail to resolve the problems raised in the initial request for a meeting, either party may file a motion with the Court seeking a judicial determination regarding defendants’ compliance with the Agreement. (d) The parties shall voluntarily dismiss Civil Action No. 10-cv-635 on the end date of the Agreement, as defined in ¶¶ 10(a)-(b). In the event that any party declines at that time to join in a voluntary dismissal request, any of the other parties shall be free to move for dismissal and the other parties agree not to oppose the motion, provided that the Court need not act on the motion until it disposes any pending motion submitted under paragraph ¶ 10(c).
9 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 10 of 27

11. Release/Bar of Claims (a) The claims compromised, settled and resolved by this Agreement include all claims that
were raised in the Complaint in Intervention ﬁled in this action on June 1, 2011, as well as all claims precluded by governing law, on behalf of the class as defined in Section 1 above. This agreement does not compromise, settle, or resolve, and shall in no way impair, any claims that may arise after the end date of this Agreement pursuant to Section 10. (b) In consideration of the commitments contained herein, and the beneﬁts provided or to be provided hereunder, this Settlement Agreement shall fully resolve, extinguish, and ﬁnally and forever bar, and the Representative Plaintiffs and other Class Members hereby release, all claims described in ¶ 11(a) above. Upon ﬁnal approval by the Court, this Settlement Agreement shall be fully binding on, and fully extinguish and release the claims of, all Class Members and the Representative Plaintiffs, and may be pled as a full and complete defense to any subsequent action or other proceeding that arises out of the claims released and discharged by this Settlement Agreement. (c) Nothing in this Agreement is intended to affect any rights of any party or non-party other than to the extent specifically addressed by the terms of the Agreement. 12. Redefinition of the class: (a) When the parties move for preliminary approval of this Settlement Agreement, they will also jointly move the Court to revise the definition of the class adopted by the Court on June 6, 2011, by adopting the definition provided in ¶ 1(a). 13. Miscellaneous provisions: (a) All public statements concerning the settlement by the parties or counsel are to be made by way of a joint press release.
10 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 11 of 27

(b) The Parties acknowledge that this settlement agreement may prolong or otherwise affect
the wait for CC Waiver slots for individuals outside the class.
(c) The commitments of the Parties hereunder are expressly conditioned upon the Court’s
approval of this agreement pursuant to Federal Rule of Civil Procedure 23(e) and its
entering an order requiring the parties to comply with the terms of this agreement. The
Court shall retain jurisdiction of this action for the purpose of enforcing this agreement.
Agreed this __1__1_t_h__ day of January, 2012. __/_s__/__K_i_m__b_e_r_l_y___H_u_m_b__l_es Kimberly Humbles La. Bar No. 24465 Kimberly.Humbles@la.gov LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: 225-342-1128 Facsimile: 225-342-2232
__/_s__/__C_a_r__o_l_i_n_e___M_.__B__r_own Caroline M. Brown cbrown@cov.com D.C. Bar. No. 438342 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Telephone: 202-662-6000 Facsimile: 202-662-6291
Counsel for Defendants
11 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 12 of 27

___/__s_/__N_e__l_l__H_a__h_n______ Nell Hahn, T.A. LA Bar No. 22406 Advocacy Center 600 Jefferson St., Suite 812 Lafayette, LA 70501 (337) 237-7380, ext. 311 Facsimile (337) 237-0486 nhahn@advocacyla.org
__/__s_/__S_t__e_p_h_e_n___F_.__G__o_l_d Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
___/_s_/__K__e_n__Z_e__l_l_e_r______ Ken Zeller D.C. Bar No. 986787 kzeller@aarp.org Bruce Vignery D.C. Bar No. 297911 bvignery@aarp.org AARP Foundation Litigation 601 E Street N.W. Washington, D.C. 20049 (202) 434-2138 Facsimile: (202) 434-6424
Counsel for the Plaintiffs
12 Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 13 of 27

Attachment A
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 14 of 27

DEPARTMENT OF HEALTH & HOSPITALS Long Term-Personal Care Services Program
Date:
Dear __________________________:
You have been approved to receive 32 hours per week of Long-Term Personal Care Services (LT-PCS). B ecause this is the most assistance that anyone can receive through the LT-PCS program, the Department of Health & Hospitals wants to make sure that you know about programs other than LT-PCS and about ways to make the most of your LT-PCS services.
Among the options that may be available to you are:
• Using services provided at an Adult Day Health Care center together with your LT-PCS services
• Considering a shared living arrangement with another person who uses LT-PCS • Seeking additional assistance from family, friends, neighbors, or community
organizations or programs • Applying for emergency services through the Elderly and Disabled Adults Waiver
If you are considering going into a nursing home unless you receive additional assistance beyond your 32 hours per week of LT-PCS, the Department of Health & Hospitals may be able to help. You may request assistance by contacting the Office of Aging and Adult Services Help Line at 1-866-758-5035. The Department will work with you to try to find a way for you to receive additional services and supports.

August 1, 2011

OAAS-11-003

Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 15 of 27

DEPARTMENT OF HEALTH & HOSPITALS Long Term-Personal Care Services Program
Date:
Dear __________________________:
You have been approved to receive 32 hours per week of Long-Term Personal Care Services (LT-PCS). B ecause this is the most assistance that anyone can receive through the LT-PCS program, the Department of Health & Hospitals wants to make sure that you know about programs other than LT-PCS and about ways to make the most of your LT-PCS services.
Among the options that may be available to you are:
• Using services provided at an Adult Day Health Care center together with your LT-PCS services
• Considering a shared living arrangement with another person who uses LT-PCS • Seeking additional assistance from family, friends, neighbors, or community
organizations or programs • Applying for emergency services through the Community Choices Waiver
If you are considering going into a nursing home unless you receive additional assistance beyond your 32 hours per week of LT-PCS, the Department of Health & Hospitals may be able to help. You may request assistance by contacting the Office of Aging and Adult Services Help Line at 1-866-758-5035. The Department will work with you to try to find a way for you to receive additional services and supports.

Reissued October 18, 2011 Replacing August 1, 2011 Issuance

OAAS-R-11-003

Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 16 of 27

DEPARTMENT OF HEALTH & HOSPITALS Long Term-Personal Care Services Program
Dear Participant:
You previously were approved to receive 32 hours per week of Long-Term Personal Care Services (LT-PCS). Because this is the most assistance that anyone can receive through the LTPCS program, the Department of Health & Hospitals wants to make sure that you know about programs other than LT-PCS and about ways to make the most of your LT-PCS services.
Among the options that may be available to you are: • Using services provided at an Adult Day Health Care center together with your LT-PCS services • Considering a shared living arrangement with another person who uses LT-PCS • Seeking additional assistance from family, friends, neighbors, or community organizations or programs • Applying for emergency services through the Community Choices Waiver
If you are considering going into a nursing home unless you receive additional assistance beyond your 32 hours per week of LT-PCS, the Department of Health & Hospitals may be able to help. You may request assistance by contacting the Office of Aging and Adult Services Help Line at 1-866-758-5035. The Department will work with you to try to find a way for you to receive additional services and supports.

Issued October 18, 2011

OAAS-R-11-004

Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 17 of 27

Attachment B
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 18 of 27

Attachment B
[INSERT Date]
[INSERT Recipient Name] [INSERT Street Address] [INSERT City, State & Zip Code]
Dear Participant:
The Department of Health and Hospitals (“DHH”) wants to make sure that you know about services other than Long Term Personal Care Services (“LTPCS”), that may be of help to you and about ways to make the most of your LT-PCS.
Among the options that may be available to you are:
 Applying for an expedited slot in the Community Choices Waiver (see attached description—formerly the Elderly and Disabled Adults Waiver).
 Using services provided at an Adult Day Health Care center (see attached description) or through another community organization or program, together with your LT-PCS;
 Asking for a reassessment for additional hours of LT-PCS (up to 32 hours per week) if your condition has changed since your last assessment;
 Considering a shared living arrangement with another person who uses LTPCS.
You may apply for an expedited Community Choices Waiver slot any time before June 30, 2012. You are eligible to apply during this time period because you were receiving more than 32 hours of LT-PCS per week in the past, and have had your hours reduced. To get an expedited offer, you must show that without the additional services the waiver provides, you cannot maintain your mental or physical health and are at serious risk of having to go into a nursing home.
After June 30, 2012, you may still apply for an expedited slot if you are approved for 32 hours per week of LT-PCS. To qualify for an expedited slot, you must meet the standards described in DHH’s rules, La. Admin. Code tit. 50, Part XXI, § 8105, which can be found on the internet at:
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 19 of 27

http://new.dhh.louisiana.gov/index.cfm/page/723 You may request help by contacting the Office of Aging and Adult Services Help Line at 1-866-758-5035, or by sending your request in writing to OAAS.Inquiries@la.gov. If you are unable to call or e-mail, you may send a letter or fax to: Department of Health & Hospitals Office of Aging and Adult Services P.O. Box 2031 Baton Rouge, LA 70821-2031 Fax: 225-219-0202 DHH will work with you to try to find a way for you to get additional services and supports and can give you information about how to obtain legal assistance.
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 20 of 27

Attachment C
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 21 of 27

Attachment C
NOTICE OF DENIAL
Your request for an expedited Community Choice Waiver slot has been DENIED.
You did not demonstrate that without the additional services the waiver provides you cannot maintain your mental or physical health and are at serious risk of being admitted to a nursing facility because: [Give specific reason(s). For example, you did not demonstrate that 32 hours of LT-PCS are inadequate to maintain your mental and physical health and prevent nursing facility placement; you were referred to other programs to address the concerns you identified; you did not demonstrate that you lack access to adequate informal supports to maintain your mental and physical health and prevent nursing facility placement.].
You may appeal this decision. If you want to appeal, you must do so by [date 30 days from the date of the notice].
If you appeal the denial of the expedited waiver slot, you will be given a fair hearing.
At the hearing, you will have to prove that you will experience a decline in mental or physical health and are at serious risk of nursing facility placement in the absence of an expedited waiver offer.
Some of the factors that will be considered are:
a. Whether support through other programs is available and adequate to prevent nursing facility placement;
b. Whether adequate support is available through unpaid caregivers; c. Whether you live alone and do not have access to enough unpaid
support.
The regulations that support the decision to deny your request are La. Admin. Code tit. 50, Part XXI, § 8105, which can be found on the internet at: http://new.dhh.louisiana.gov/index.cfm/page/723
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 22 of 27

To appeal, fill in and sign the bottom of this letter and mail or fax it to: Division of Administrative Law Health and Hospitals Section P.O. Box 4189 Baton Rouge, Louisiana 70821-4189 (225) 342-0443 phone (225) 219-9823 (fax) You can also file an appeal by phone at (225) 342-5800. You will be notified by the Appeals Section of the date of your hearing. If you need to put it off for any reason, you will need to send in a written request. You may represent yourself at this h earing, or you may have a lawyer, a relative, friend or other spokesman. A list of agencies t hat provide no-co st legal services and that m ay be available to help with appeals is attached.
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 23 of 27

Request for Appeals Hearing Denial of Expedited Community Choice Waiver Slot ________ I disagree with the decision to deny me an Expedited Community Choice Waiver Slot. I am requesting a fair hearing. Recipient’s Name:________________________ Recipient’s Address:____________________________________________ City: _____________________________, LA Zip: ___________________ Social Security Number: _____________________________________ Signature: ______________________________ Date: _________________ Person Assisting to Send in Appeal:__________________________________
(Keep a copy for yourself.)
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 24 of 27

SOURCES OF LEGAL REPRESENTATION
Statewide:
Advocacy Center (statewide assistance) 8325 Oak Street, New Orleans, LA 70118 (800) 960-7705 www.advocacyla.org
Health Law Advocates of Louisiana, Inc. (statewide assistance) 4640 S. Carrollton Ave., Suite 250 New Orleans, LA 70119 svpic@hlalouisiana.org 888-890-7989 504-267-9156 Fax: 504-267-9157
AIDSLAW 3801 Canal Street, Suite 331 New Orleans, LA 70119 (800) 375-5035 (504) 568-1631 info@aidslaw.org
AIDSLAW 4560 North Boulevard, Suite 118 Baton Rouge, LA 70806 (800) 375-5035 (225) 302-5968 info@aidslaw.org
Local:
Acadiana Legal Service Corporation 1020 Surrey Street, Lafayette, LA 70501 337-237-4320 www.la-law.org
Acadiana Legal Service Corporation (Alexandria Office) 1808 Jackson Street , Alexandria, LA 71309
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 25 of 27

318-443-7281 www.la-law.org
Acadiana Legal Service Corporation (Lake Charles) 1 Lakeside Plaza, Suite 710, 127 W. Broad Street, Lake Charles, LA 70601 337-439-0377 www.la-law.org
Legal Services of North Louisiana, Inc. (Monroe Office) 3016 Cameron Street, Monroe, LA 71201 318-699-0889 www.lsnl.org
Legal Services of North Louisiana, Inc. (Natchitoches Office) 134 St. Denis Street, Natchitoches, LA 71458 318-352-7220 www.cp-tel.net/klsc, www.lsnl.org
Legal Services of North Louisiana, Inc. (Shreveport Office) 720 Travis Street, Shreveport, LA 71101 318-222-7186 www.lsnl.org
Southeast Louisiana Legal Services 1200 Derek Drive, Suite 100, Hammond, LA 70403 985-345-2130 www.slls.org
Southeast Louisiana Legal Services (Baton Rouge Office) 715 St. Ferdinand St. , Baton Rouge, LA 70802 225-448-0080 www.slls.org
Southeast Louisiana Legal Services (Houma Office) 521 Roussell Street , Houma, LA 70360
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 26 of 27

985-851-5687 www.slls.org Southeast Louisiana Legal Services (New Orleans office) 1010 Common St., Suite 1400A, New Orleans, LA 70112 (504) 529-1000 or 1008 www.slls.org Southeast Louisiana Legal Services (West Bank Office) 4051 Westbank Expressway, Marrero, LA 70072 (504) 340-1381 www.slls.org Southwest Louisiana Legal Services 1011 Lakeshore Drive, 4th Floor, Lake Charles, LA 70601 337-436-3308
Notice issued pursuant to the settlement agreement in Pitts v. Greenstein, 10-cv-635. Not a standard notice.
Case 3:10-cv-00635-JJB -SCR Document 100-1 02/15/12 Page 27 of 27

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

HELEN PITTS, ET AL
VERSUS
BRUCE GREENSTEIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ET AL

CIVIL ACTION NO.10-635-JJB-SR

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT This matter is before the Court on Defendants' Motion (doc. 11) for Summary Judgment. Plaintiffs have filed an opposition (doc. 36) to which Defendants have filed a reply (doc. 39). On April 20, 2011, this Court heard oral arguments from the parties. This Court's jurisdiction exists pursuant to 28 U.S.C. § 1331. For the reasons stated herein the Court DENIES Defendants' motion (doc. 11).
Background I. Facts
The following facts are undisputed. Since 2003, the state of Louisiana, as part of its Medicaid plan, has offered home-and-community-based services ("HCBS") to disabled individuals through its long-term personal care services ("LT-PCS") program (doc. 36, ex. 1, pp. 10-11). The LT-PCS program provides disabled individuals with a personal care worker to assist the individual in performing basic tasks, such as personal care or household chores, that the

1

individual would otherwise be unable to perform (doc. 36, ex. 1, pp. 5-8).1
Those who do not qualify for LT-PCS, or seek additional or alternative
services, may enter one of the State's waiver programs,2 however, each program
suffers from limited slots, geographical or age limits, and/or waiting lists. For
those programs that have waiting lists, an individual may be moved to the top of
the priority list and immediately offered a waiver, but to do so, the individual must
have had a hospital stay in excess of 30 days or been treated in a nursing facility
for 120 consecutive days (doc. 39-2, ~ 13).
In March 2009, in order to address budgetary concerns, the State lowered
the maximum weekly LT-PCS service hours that an individual could receive from
1 To qualify for LT-PCS, an individual must be so physically disabled that he or she would qualify to receive care in a nursing facility and must demonstrate that he or she "faces a substantial possibility of deterioration in mental or physical condition or functioning if either home or community-based services are not provided in less than 120 days." 34 LAC 50 XV § 12905, Louisiana Register, v. 30 no. 12 December 2004, p. 2831.
Plaintiffs Helen Pitts, Kenneth Roman, Denise Hodges, Rickii Ainey and Cleo Lancaster each receive an average of 39 hours per week of care through LT-PCS (doc. 36, ex. 3, 1l22; ex. 4, 1l20; ex. 5, 1l16; ex. 6, 1l28). Each Plaintiff's primary physician has stated that if his or her hours of in-home care are reduced to 32 hours per week, each will suffer a deterioration in condition and will be forced to enter a nursing home for care (doc. 36, ex. 8, 1l1l9, 11-15; ex. 9, 1l1l11, 13; ex. 10; ex. 11, 1l1l8-12; ex 121l1l1718). 2 Louisiana maintains the following waiver services:
Elderly and Disabled Adults ("EDA"): The EDA program, which an individual may not participate in simultaneously with LT-PCS, provides an annual budget which is typically substantial enough to pay for 65 hours of in-home care (doc. 36, ex. 1, pp. 73-74). However, an individual must wait approximately 30 months before receiving the applied-for care (Id. p. 52). As of October 10, 2010, 46% of the 12,021 people who received LT-PCS were also on the EDA waiting list (Id. p. 69). Moreover, in 2009 the State capped the program at 4,603 slots (Id. p. 41). Adult Day Health Care ("ADHC"): The ADHC program provides essential services in an adult day care center. All ADHC licensed facilities must operate for a minimum of five hours per day and must provide transportation to and from the facility (doc. 11-2, 1l 22). However, it has only 825 slots, a waiting list over five months long and is not available in many parts of the state. Program of All-Inclusive Care for the Elderly ("PACE"): The PACE program has only 400 slots and is only available to individuals 55 and older and only in certain parts of Baton Rouge and New Orleans (Id. p. 43-44). Money Follows the Person ("MFP"): The MFP program offers assistance to individuals transitioning from nursing facilities, but does not provide services to individuals seeking to avoid entering a nursing facility (Id. at 89-91).
2

56 to 42 (doc. 36, ex. 1, pp. 11, 66-67). In September 2010, the State again
lowered the maximum weekly service hours, from 42 to 32, and changed the
assessment criteria (doc. 36, ex. 1, pp. 11, 66-67).3 These provisions apply not
only to new LT-PCS recipients but to individuals currently receiving assistance
when they undergo their annual eligibility assessments.
The Louisiana Department of Health and Hospitals ("LADHH") has
determined this change will save the state $5 million in 2011 and $24 million in
2012 (doc. 36, ex. 1, p. 206). However, Plaintiffs suggest that the average cost
of services for an individual in the LT-PCS program is less than the cost of
maintaining the same individual in a nursing home (doc. 36, Pitts_0001 041, p. 2).
Plaintiffs also suggest that the cost of servicing individuals in nursing homes has
steadily increased in recent years (doc. 36, Pitts_000044, Pitts_0001188).
II. Procedu ral History
On September 22, 2010, Plaintiffs filed suit against the LADHH and its
Secretary, Bruce Greenstein, seeking declaratory and injunctive relief (doc. 1).
Plaintiffs assert that the reduction in LT-PCS hours unlawfully discriminates
against disabled individuals by depriving them of at-home assistance necessary
3 As of March 1, 2009, the State determined the level of an individual's disability by the individual's ability to perform (1) seven different "activities of daily living" (ADLs): bed mobility, transferring, locomotion, dressing, eating, toileting, personal hygiene and bathing; (2) eight different "instrumental activities of daily living" (IADLs): meal preparation, housework, managing finances or medication, using the phone, shopping and transportation. In August 2010, the State changed its method of determining the level of an individual's disability to require the individual, in order to receive the maximum amount of assistance, need assistance in four ADLs: eating, bathing, transferring, and moving in bed (doc. 36, ex. 1, 164-172).
Nationally, an individual needing assistance in three ADLs receives an average of 59.6 hours per week of personal assistance in order to remain in the community; an individual needing assistance in four ADLs receives 85.9 (doc. 36).
3

to remain "integrated" into the community in violation of the Title II of the American's with Disabilities Act ("ADA"), 42 U.S.C. § 12132 (2010), and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794(a) (2010).
On October 21, 2010, Defendants filed their Motion (doc. 11) to Dismiss Plaintiffs' claims, which the Court later converted (doc. 25) into a Motion for Summary Judgment. Defendants assert that they have not discriminated against Plaintiffs under the ADA or Section 504 because they have a comprehensive and effective plan in place to provide disabled individuals with HCBS. Defendants also assert that even if they have discriminated against Plaintiffs, Plaintiffs' ADA and Section 504 claims must fail because they have failed to meet their burden of providing a reasonable modification to the proposed plan (doc. 11).
On November 10, 2010, Plaintiffs filed their opposition (doc. 17). Plaintiffs assert that Defendants (1) have discriminated against them under the ADA and Section 504 by increasing the likelihood that they will be institutionalized; (2) they have proposed a reasonable modification in suggesting the state maintain its 42hour maximum; and (3) Defendants have additionally discriminated against Plaintiffs by basing the level of care they receive on the severity of their disability (doc. 17).
Standard of Review Under Federal Rule of Civil Procedure 12(b)(6) a federal district court should dismiss a plaintiff's complaint if it "fails to state a claim upon which relief can be granted." However, [i]f, on a motion under Rule 12(b)(6) ... , matters
4

outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment." Fed. R. Civ. P. 12(d). A court may grant a motion for summary judgment if the evidence establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. If the movant carries its burden, the nonmovant must then demonstrate the existence of a genuine issue of material fact in order to survive the motion for summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Discussion Defendants assert that they have not discriminated under the ADA or Section 504 by reducing the weekly maximum of LT-PCS service hours (doc. 11). Defendants assert that the combination of LT-PCS and waiver programs ensure that disabled individuals are not forced into nursing facilities. Defendants assert that Plaintiffs have failed to show that returning to a 42-hour weekly maximum is a reasonable modification to the current plan. Plaintiffs assert that the State's plan increases their risk of institutionalization because the State's waiver programs are either unavailable in many parts of the state or have lengthy waiting periods. Plaintiffs also assert that returning to a 42-hour weekly maximum is a reasonable modification because the State will end up spending more money if LT-PCS recipients are forced to receive care in nursing facilities as a result of the reduction. Therefore, Plaintiffs assert, Defendants now bear the burden of establishing that returning to the 42-
5

hour weekly maximum would constitute an undue burden or a fundamental alteration of its program.
The ADA prohibits state agencies from discriminating against individuals with disabilities in the provision of public services. 42 U.S.C. §§ 12131 (A)-(8) & 12132. In drafting the ADA, Congress stated that "historically, society has tended to isolate and segregate individuals with disabilities" 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." 42 U.S.C. §§ 12101 (a)(2), (5). To effectuate the goal of integrating disabled individuals into their communities, public entities are required to "administer services . . . in the most integrated setting appropriate to the needs of qualified individuals with disabilities" and to make "reasonable modifications" in furtherance of that goal. 28 CFR § 35.130(b)(7), (d) (1998).
The party challenging a State's program bears the initial burden of demonstrating that the program violates the ADA's integration mandate and that
the requested relief would be a reasonable modification. Henrietta D. v.
Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003). A State's program violates the ADA's integration mandate if it creates the risk of segregation; neither present nor inevitable segregation is required. 4 In determining whether a proposed
4 For example, in Fisher v. Oklahoma, 335 F.3d 1175 (10th Cir. 2003), Oklahoma adopted a policy under which it provided unlimited prescription medicine to individuals in institutions, but not to individuals receiving community-based services. Fisher, 335 F.3d at 1181. The Tenth Circuit Court of Appeals
6

modification is reasonable, courts consider the resources available to the State and the State's responsibility to equitably apportion those resources to all disabled individuals. Olmstead v. L.e. ex reI Zimring, 527 U.S. 581, 597, 604, 607 (1999). That is, courts must consider the cost-effectiveness of communitybased services globally and not solely in relation to the particular litigants. Olmstead, 527 U.S. at 604 (stating that although community-based services may be cheaper than institutional services when judged on a purely individual basis, a "[s]tate .. , may experience increased overall expenses by funding community placements without being able to take advantage of the savings associated with closure of institutions"). As such, a State must be given some leeway in complying with the ADA and can satisfy its obligations by "demonstrat[ing] that it [has] a comprehensive, effectively working plan for placing qualified persons with [] disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace." Id. at 605-06.
The Court finds that Defendants' Motion for Summary Judgment should be denied. Plaintiffs require, on average, 39 hours of HCSS per week (doc. 36, ex. 3, ~ 22; ex. 4, ~ 20; ex. 5, ~16; ex. 6, ~ 28). Therefore, Louisiana's current plan would require Plaintiffs to receive, on average, 7 hours of additional assistance per week. Though the State has waiver programs through which Plaintiffs can
found that this violated Title" because the plaintiffs' health might deteriorate, leading to increased need for prescription medication and, therefore, an increased risk of institutionalization. Id; see also Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1170 (N.D. Cal. 2009) (stating that the risk of institutionalization is sufficient for a violation of the ADA); M.A. C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (same); Makin v. Hawaii, 144 F. Supp. 2d 1017,1034 (D. Haw. 1999) (same).
7

receive the necessary supplemental assistance, each of the programs has limited slots, geographical or age limits, and/or waiting lists of up to two-and-ahalf years. See supra note 2. Defendants assert that Plaintiffs can be moved to the top of the priority list by submitting to a 120-day stay in a nursing facility, however, this would subject Plaintiffs to the very institutionalization which the ADA seeks to avoid. Therefore, the State's current plan plainly violates the ADA by creating a greater risk for institutionalization for those individuals who require more than 32 hours per week of assistance. See Fisher, 335 F.3d at 1181.
In addition, there are genuine issues of material fact as to whether maintaining the 42-hour weekly maximum is a "reasonable modification" or a "fundamental alteration" for purposes of Plaintiffs' ADA claim. Plaintiffs assert that the proposed plan will save the state $5 million in 2011 and $24 million in 2012 (doc. 36, ex. 1, p. 206). However, Defendants assert that the cost of servicing individuals in nursing homes has steadily increased in recent years (doc. 36, Pitts_000044, Pitts_0001188), and that the average cost of serving an individual in the LT-PCS program is less than the cost of maintaining the same individual in a nursing facility (doc. 36, Pitts_0001 041, p. 2). Therefore, the Court finds that summary judgment is not appropriate.
8

Conclusion

Accordingly, the Court hereby DENIES Defendants' Motion (doc. 11) for

Summary Judgment.

,

bt~lay Signed in Baton Rouge, Louisiana this /

of ..!...ih----1H--I--, 2011.

JUDGEJA, E . J. BRADY UNITED STATES DISTRICT CO MIDDLE DISTRICT OF LOUISIA

9

 
 Case: 3:10-cv-00635-JJB-SCR As of: 10/29/2014 03:10 PM CDT 1 of 13
U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:10−cv−00635−JJB−SCR

CLOSED

Pitts et al v. Louisiana Department of Health and Hospitals et al Assigned to: Judge James J. Brady Referred to: Magistrate Judge Stephen C. Riedlinger Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/22/2010 Date Terminated: 02/17/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Helen Pitts TERMINATED: 06/07/2011

represented by Ellen Hahn Advocacy Center − LAF 600 Jefferson Street Suite 812 Lafayette, LA 70501 337−237−7380, Ext. 311 Fax: 337−237−0486 Email: nhahn@advocacyla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery AARP Foundation Litigation 601 E Street N.W. Washington, DC 20049 Email: bvignery@aarp.org PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth Zeller AARP Foundation Litigation 601 E Street N.W. Washington, DC 20049 Email: kzeller@aarp.org PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 215−627−7100 ext 227 Email: stevegoldada1@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Kenneth Roman

represented by Ellen Hahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth Zeller (See above for address) PRO HAC VICE

Case: 3:10-cv-00635-JJB-SCR As of: 10/29/2014 03:10 PM CDT 2 of 13

ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Denise Hodges TERMINATED: 06/07/2011

represented by Ellen Hahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Rickii Ainey

represented by Ellen Hahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Louisiana Department of Health and Hospitals

represented by Kimberly L. Humbles Louisiana Department of Health &Hospitals P.O. Box 3836 Baton Rouge, LA 70821−3836 225−342−2556 Fax: 225−342−2232 Email: kimberly.humbles@la.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:10-cv-00635-JJB-SCR As of: 10/29/2014 03:10 PM CDT 3 of 13
Caroline M. Brown Covington &Burling,, LLP 1201 Pennsylvania Avenue, N.W. Washington, DC 20004 202−665−5219 Fax: 202−778−5219 Email: cbrown@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Eugene Daspit Louisiana Department of Health &Hospitals P.O. Box 3836 Baton Rouge, LA 70821−3836 225−342−3806 Fax: 225−342−2232 Email: charles.daspit@la.gov ATTORNEY TO BE NOTICED
Matthew Berns 1201 Pennsylvania Avenue, N.W. Washington, DC 20004 202−662−5666 Fax: 202−778−5666 Email: mberns@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J. Coleman Louisiana Department of Health &Hospitals P. O. Box 3836 Baton Rouge, LA 70821 225−342−5623 Fax: 342−2232 Email: mcoleman@dhh.la.gov ATTORNEY TO BE NOTICED
Neal Risley Elliott , Jr. P.O. Box 80136 Baton Rouge, LA 70898 225−907−5763 Email: neal.elliott@la.gov ATTORNEY TO BE NOTICED
Philip Peisch Covington and Burling LLp 1201 Pennsylvania Avenue, NW Washington, DC 20004−2401 Email: ppeisch@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Robert Russo Louisiana Department of Health &Hospitals P.O. Box 3836 Baton Rouge, LA 70821−3836 225−342−1103 Fax: 225−342−2232 Email: stephen.russo@la.gov ATTORNEY TO BE NOTICED

Case: 3:10-cv-00635-JJB-SCR As of: 10/29/2014 03:10 PM CDT 4 of 13

Defendant Bruce Greenstein Secretary of the Louisiana Department of Health and Hospitals
Amicus United States of America

represented by Kimberly L. Humbles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline M. Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Eugene Daspit (See above for address) ATTORNEY TO BE NOTICED
Ellen Hahn (See above for address) ATTORNEY TO BE NOTICED
Matthew Berns (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J. Coleman (See above for address) ATTORNEY TO BE NOTICED
Neal Risley Elliott , Jr. (See above for address) ATTORNEY TO BE NOTICED
Philip Peisch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Robert Russo (See above for address) ATTORNEY TO BE NOTICED
represented by James L. Nelson United States Attorney's Office − BR Middle District of Louisiana 777 Florida Street, Suite 208 Baton Rouge, LA 70801 225−389−0443 Fax: 225−389−0685 Email: jim.nelson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Maisels U.S. Department of Justice Disability Rights Section 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 202−305−8454 Fax: 202−305−9775 PRO HAC VICE
Regan Rush

Case: 3:10-cv-00635-JJB-SCR As of: 10/29/2014 03:10 PM CDT 5 of 13
U.S. Department of Justice Disability Rights Section 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 202−305−8454 Fax: 202−305−9775 PRO HAC VICE

V. Intervenor Plaintiff Elizabeth Foster
Intervenor Plaintiff Kenneth Roman
Intervenor Plaintiff Rickii Ainey

represented by Ellen Hahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Hahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Hahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/22/2010 09/22/2010
09/23/2010 09/27/2010
09/27/2010 09/27/2010 09/27/2010 09/27/2010 09/29/2010

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 053N−604210.), filed by Helen Pitts, Rickii Ainey, Denise Hodges, Kenneth Roman. (Attachments: # 1 Civil Cover Sheet)(Hahn, Ellen) (Entered: 09/22/2010)
2 MOTION for Stephen F. Gold to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−604218) by All Plaintiffs. (Attachments: # 1 Affidavit Declaration and Certificate of Good Standing, # 2 Proposed Order)(Hahn, Ellen) (Entered: 09/22/2010)
MOTION(S) REFERRED: 2 MOTION for Stephen F. Gold to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−604218). This motion is now pending before the USMJ. (CMM, ) (Entered: 09/23/2010)
3 ORDER granting 2 Motion for Stephen F. Gold to Appear Pro Hac Vice for plaintiffs. Signed by Magistrate Judge Stephen C. Riedlinger on 09/27/2010. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 09/27/2010)
4 Summons Submitted (Hahn, Ellen) (Entered: 09/27/2010)
5 Summons Submitted (Hahn, Ellen) (Entered: 09/27/2010)
6 Summons Issued as to Louisiana Department of Health and Hospitals. (NOTICE: Counsel shall print and serve both the summons and all attachments in accordance with Federal Rule of Civil Procedure 4.) (BP, ) (Entered: 09/27/2010)
7 Summons Issued as to Bruce Greenstein. (NOTICE: Counsel shall print and serve both the summons and all attachments in accordance with Federal Rule of Civil Procedure 4.) (BP, ) (Entered: 09/27/2010)
8 90 DAY CONFERENCE ORDER: Scheduling Conference set for 12/16/2010 at 03:00 PM before Magistrate Judge Stephen C. Riedlinger. Status Report due by 12/2/2010.. Signed by Magistrate Judge Stephen C. Riedlinger on 9/29/2010. (CMM, ) (Entered: 09/29/2010)

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10/06/2010 10/06/2010 10/21/2010
10/21/2010 10/21/2010 10/21/2010
10/22/2010 10/22/2010 10/25/2010 11/10/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/19/2010

9 SUMMONS Returned Executed by Helen Pitts, Rickii Ainey, Denise Hodges, Kenneth Roman. Louisiana Department of Health and Hospitals served on 10/1/2010, answer due 10/21/2010. (Hahn, Ellen) (Entered: 10/06/2010)
10 SUMMONS Returned Executed by Helen Pitts, Rickii Ainey, Denise Hodges, Kenneth Roman. Bruce Greenstein served on 10/1/2010, answer due 10/21/2010. (Hahn, Ellen) (Entered: 10/06/2010)
11 MOTION for Summary Judgment (to Dismiss) by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Affidavit, # 3 Attachment Attachments to Eley Declaration, # 4 Proposed Pleading; Proposed Order to Dismiss)(Elliott, Neal) Modified on 12/3/2010 to convert motion to a Summary Judgment per order(PAH). (Entered: 10/21/2010)
12 MOTION for Caroline M. Brown to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−613620) by All Defendants. (Attachments: # 1 Affidavit, # 2 Proposed Pleading; Proposed Order)(Elliott, Neal) (Entered: 10/21/2010)
13 MOTION for Matthew Berns to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−613631) by All Defendants. (Attachments: # 1 Affidavit, # 2 Proposed Pleading; Proposed Order)(Elliott, Neal) (Entered: 10/21/2010)
MOTION(S) REFERRED: 12 MOTION for Caroline M. Brown to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−613620), 13 MOTION for Matthew Berns to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−613631). This motion is now pending before the USMJ. (BP, ) (Entered: 10/22/2010)
14 ORDER granting 12 Motion for Caroline M. Brown to Appear Pro Hac Vice for defendants. Signed by Magistrate Judge Stephen C. Riedlinger on 10/22/2010. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/22/2010)
15 ORDER granting 13 Motion for Matthew Berns to Appear Pro Hac Vice for defendants. Signed by Magistrate Judge Stephen C. Riedlinger on 10/22/2010. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/22/2010)
16 NOTICE to Parties on 11 MOTION to Dismiss : Opposition to the motion shall be filed on or before 11/11/10. The mover may file a reply brief within 15 days of the filing of the opposition.. Signed by Judge James J. Brady on 10/25/10. (PAH, ) (Entered: 10/25/2010)
17 MEMORANDUM in Opposition to 11 MOTION to Dismiss filed by All Plaintiffs. (Hahn, Ellen) (Entered: 11/10/2010)
18 MOTION for Bruce Vignery to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−621434) by All Plaintiffs. (Attachments: # 1 Attachment Proposed order, # 2 Affidavit)(Hahn, Ellen) (Entered: 11/16/2010)
19 ORDER granting 18 Motion for Bruce Vignery to Appear Pro Hac Vice for plaintiffs. Signed by Magistrate Judge Stephen C. Riedlinger on 11/16/2010. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 11/16/2010)
20 MOTION for Kenneth Zeller to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−621445) by All Plaintiffs. (Attachments: # 1 Attachment Proposed order, # 2 Affidavit)(Hahn, Ellen) (Entered: 11/16/2010)
21 ORDER granting 20 Motion for Kenneth Zeller to Appear Pro Hac Vice for plaintiffs. Signed by Magistrate Judge Stephen C. Riedlinger on 11/16/2010. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 11/16/2010)
22 Unopposed MOTION for Extension of Time Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss by All Defendants. (Elliott, Neal) (Entered: 11/19/2010)

Case: 3:10-cv-00635-JJB-SCR As of: 10/29/2014 03:10 PM CDT 7 of 13

11/22/2010 11/22/2010 12/02/2010 12/03/2010
12/03/2010 12/07/2010 12/08/2010
12/08/2010 12/15/2010 12/15/2010
12/20/2010 01/03/2011 01/10/2011 01/25/2011

23 ORDER granting 22 Motion for Extension of Time. Dft's reply brief shall be due on 12/03/2010. Signed by Judge James J. Brady on 11/22/2010. (NLT) (Entered: 11/22/2010)
Set/Reset Deadlines as to 11 MOTION to Dismiss. Replies due by 12/3/2010. (NLT) (Entered: 11/22/2010)
24 STATUS REPORT by All Parties. (Hahn, Ellen) (Entered: 12/02/2010)
25 ORDER: IT IS HEREBY ORDERED, pursuant to Federal Rule of Civil Procedure 12(d), that the motion to dismiss be and is hereby converted to a motion for summary judgment and Plaintiffs are hereby given a period of twenty−one (21) days to present all materials pertinent to such a motion by Federal Rule of Civil Procedure 56; Defendants shall have fifteen (15) thereafter to file such response as may be appropriate. Signed by Judge James J. Brady on 12/2/10. (PAH) (Entered: 12/03/2010)
Set/Reset Deadlines as to 11 MOTION for Summary Judgment. Replies due by 1/11/2011. (PAH) (Entered: 12/03/2010)
26 Consent MOTION for Extension of Time for Plaintiffs' to Submit Summary Judgment Evidence by All Plaintiffs. (Attachments: # 1 Proposed order)(Hahn, Ellen) Modified on 12/8/2010 to edit text in title of motion (PJH). (Entered: 12/07/2010)
27 ORDER granting 26 Motion for Extension of Time to submit Summary Judgment Evidence.. ORDERED that Plaintiffs may file materials responsive to Defendants' Motion to Dismiss, which the Court has converted pursuant to Rule l2(d) of the Federal Rules of Civil Procedure to a motion for summary judgment, by February 7, 2011. Defendants shall expedite production of documents relevant to the motion by providing all documents relevant to the Declaration of Hugh Eley to Plaintiffs' counsel by December 21,2011. Defendants may file a reply to Plaintiffs' submission exceeding 20 pages in length by February 22,2011. Signed by Judge James J. Brady on 12/08/10. (PAH) (Entered: 12/08/2010)
Set/Reset Deadlines as to 11 MOTION for Summary Judgment. (PAH) (Entered: 12/08/2010)
28 Letter dated 12/15/2010 from Nell Hahn to Judge Riedlinger Re: Postponement of scheduling conference. (CMM) (Entered: 12/15/2010)
29 ORDER Canceling Scheduling Conference: IT IS ORDERED that the scheduling conference set for December 16, 2010 is canceled. Another scheduling conference will be set, if necessary, after the court rules on the Defendants 11 Motion to Dismiss.. Signed by Magistrate Judge Stephen C. Riedlinger on 12/15/2010. (CMM) Modified on 12/15/2010 to edit text. (CMM) (Entered: 12/15/2010)
30 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Hahn, Ellen) (Entered: 12/20/2010)
31 NOTICE to Parties on 30 MOTION to Certify Class : Opposition to the motion shall be filed on or before 1/10/11. The mover may file a reply brief within 15 days of the filing of the opposition. Signed by Judge James J. Brady on 1/3/11. (BP) (Entered: 01/03/2011)
32 MEMORANDUM in Opposition to 30 MOTION to Certify Class filed by All Defendants. (Berns, Matthew) (Entered: 01/10/2011)
33 REPLY to Response to 30 MOTION to Certify Class, 32 Memorandum in Opposition to Motion filed by All Plaintiffs. (Attachments: # 1 Affidavit Declaration of Rickii Ainey, # 2 Affidavit Declaration of Helen Pitts, # 3 Affidavit Declaration of Kenneth Roman, # 4 Affidavit Declaration of Denise Hodges, # 5 Affidavit Declaration of Cleo Lancaster, # 6 Affidavit Declaration of Carol Congress, # 7 Affidavit Declaration of Jeanne Abadie, # 8 Affidavit Declaration of Nell Hahn, # 9 Affidavit Declaration of Stephen F. Gold, # 10 Affidavit Declaration of Bruce Vignery, # 11 Affidavit Declaration of Kenneth W. Zeller)(Hahn, Ellen) (Entered: 01/25/2011)

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01/26/2011 01/28/2011 03/09/2011
03/14/2011 03/14/2011 03/30/2011
03/31/2011 03/31/2011 04/07/2011 04/08/2011 04/08/2011
04/08/2011 04/13/2011 04/15/2011 04/15/2011

34 Consent MOTION for Extension of Time to File Response to 11 MOTION for Summary Judgment by All Plaintiffs. (Attachments: # 1 Proposed order)(Hahn, Ellen) (Entered: 01/26/2011)
35 ORDER granting 34 Motion for Extension of Time to File Response to 11 MOTION for Summary Judgment. Response due by 3/9/2011. Reply due by 3/30/2011. Signed by Judge James J. Brady on 1/27/11. (BP) (Entered: 01/28/2011)
36 Motion for Leave to File Memorandum in Opposition Exceeding Page Limit Additional Exhibits to 25 Order, 11 MOTION for Summary Judgment by All Plaintiffs. filed by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Statement of Undisputed Facts, # 3 Exhibit List, # 4 Exhibit, # 5 Exhibit List, # 6 Exhibit)(Hahn, Ellen) (Attachment 4 replaced on 3/10/2011) (PJH). Modified on 3/14/2011 (PJH). (Entered: 03/09/2011)
37 ORDER granting 36 MOTION for Leave to File Memorandum in Opposition to dfts motion for SJ that exceed the page limit filed by Rickii Ainey, Kenneth Roman, Denise Hodges, Helen Pitts. Signed by Judge James J. Brady on 03/14/11. (PAH) (Entered: 03/14/2011)
38 MEMORANDUM in Opposition to 11 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Statement of Undisputed Facts, # 2 Exhibit List, # 3 Exhibit, # 4 Exhibit List, # 5 Exhibit)(PAH) (Entered: 03/14/2011)
39 REPLY to Response to 11 MOTION for Summary Judgment, 38 Memorandum in Opposition to Motion filed by All Defendants. (Attachments: # 1 Statement of Undisputed Facts, # 2 Affidavit Second Declaration of Hugh R. Eley, # 3 Attachment Attachments A−H to Second Declaration of Hugh R. Eley)(Berns, Matthew) (Entered: 03/30/2011)
40 MOTION for Oral Argument on 11 MOTION for Summary Judgment by All Plaintiffs. (Attachments: # 1 Proposed order)(Hahn, Ellen) (Entered: 03/31/2011)
41 ORDER granting 40 Motion for Oral Argument as to 11 MOTION for Summary Judgment. Oral Argument set for 4/20/2011 at 10:00 AM before Judge James J. Brady. Signed by Judge James J. Brady on 3/31/11. (BP) (Entered: 03/31/2011)
42 Brief regarding Statement of Interest of the United States of America filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Nelson, James) (Entered: 04/07/2011)
43 MOTION for Regan Rush &Amanda Maisels to Appear Pro Hac Vice by United States of America. (Attachments: # 1 Attachment Declaration of Regan Rush &Amanda Maisels, # 2 Proposed Pleading; Order)(Nelson, James) (Entered: 04/08/2011)
44 ORDER granting 43 Motion for Regan Rush and Amanda Maisels to Appear Pro Hac Vice for the Untied States of America. Signed by Magistrate Judge Stephen C. Riedlinger on 4/8/2011. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 04/08/2011)
45 ORDER granting USA leave to file its statement of interest, to participate in oral argument on the the motion for SJ and to admit counsel pro hac vice. Signed by Judge James J. Brady on 04/08/11. (PAH) (Entered: 04/08/2011)
46 Unopposed MOTION for Leave to File Response to the Statement of Interest of the United States by All Defendants. (Attachments: # 1 Proposed Pleading; Defendants' Response to the Statement of Interest of the United States, # 2 Attachment Proposed Order)(Berns, Matthew) (Entered: 04/13/2011)
47 ORDER granting 46 Unopposed MOTION for Leave to File Response to the Statement of Interest of the United States filed by Bruce Greenstein, Louisiana Department of Health and Hospitals. Signed by Judge James J. Brady on 04/15/2011. (NLT) (Entered: 04/15/2011)
48 RESPONSE to 42 Statement of Interest filed by Bruce Greenstein, Louisiana Department of Health and Hospitals. (NLT) (Entered: 04/15/2011)

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04/15/2011 04/19/2011
04/19/2011 04/19/2011
04/20/2011
05/18/2011 06/01/2011 06/01/2011 06/01/2011 06/02/2011 06/02/2011 06/06/2011 06/06/2011 06/07/2011 06/07/2011 06/07/2011

49 MOTION for Leave to File Supplemental Statement of Disputed Issues of Fact and Supporting Exhiibits by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Plaintiffs' Supplemental Statement of Disputed Facts, # 2 Exhibit, # 3 Proposed Order)(Hahn, Ellen) (Entered: 04/15/2011)
50 ORDER granting 49 MOTION for Leave to File Supplemental Statement of Disputed Issues of Fact with the Second Declaration of Jeanne Abadie, the Second Declaration of John Ford, the Declaration of Elizabeth Foster Zeno, and the Second Declaration of Kenneth Roman filed by Rickii Ainey, Kenneth Roman, Denise Hodges, Helen Pitts. Signed by Judge James J. Brady on 4/19/2011. (PJH) Modified on 4/19/2011 to edit text (PJH). (Entered: 04/19/2011)
51 Plaintiffs' Supplemental Statement of Facts filed by All Plaintiffs. (Attachments: # 1 supplemental exhibit)(PJH) (Entered: 04/19/2011)
52 MOTION to Remove Helen Pitts and Denise Hodges as Class Plaintiffs and to Dismiss All Pending Claims as They Relate to Plaintiffs Pitts and Hodges and Incorporated Memorandum in Support Thereof by All Defendants. (Attachments: # 1 Attachment Proposed Order)(Berns, Matthew) Modified on 4/20/2011 to edit text. (CMM) (Entered: 04/19/2011)
53 Minute Entry for proceedings held before Judge James J. Brady: Motion Hearing held on 4/20/2011 re 11 MOTION for Summary Judgment filed by Bruce Greenstein, Louisiana Department of Health and Hospitals. The parties present argument. The Court takes this matter under advisement and will issue a ruling shortly. (Court Reporter S. Thompson.) (PAH) (Entered: 04/20/2011)
54 RULING denying 11 Motion for Summary Judgment. Signed by Judge James J. Brady on 05/16/11. (PAH) (Entered: 05/18/2011)
55 MOTION to Intervene by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Proposed Order)(Hahn, Ellen) (Entered: 06/01/2011)
MOTION(S) REFERRED: 55 MOTION to Intervene. This motion is now pending before the USMJ. (LSM) (Entered: 06/01/2011)
Motions No Longer Referred: 55 MOTION to Intervene. This motion is now pending before the USDJ....Per Judge Riedlinger (LSM) (Entered: 06/03/2011)
56 MOTION for Extension of Time to File Answer to 1 Complaint, 55 MOTION to Intervene by All Defendants. (Berns, Matthew) (Entered: 06/02/2011)
MOTION(S) REFERRED: 56 MOTION for Extension of Time to File Answer to 1 Complaint, 55 MOTION to Intervene. This motion is now pending before the USMJ. (JDL) (Entered: 06/03/2011)
57 ORDER granting 56 Motion for Extension of Time to Answer 1 Complaint and 55 MOTION to Intervene. Bruce Greenstein and Louisiana Department of Health and Hospitals answer due 7/6/2011. Signed by Magistrate Judge Stephen C. Riedlinger on 6/3/2011. (JDL) (Entered: 06/06/2011)
58 RULING granting 30 Motion to Certify Class. In addition, the court adopts the class definition stated on pages five and six of this Ruling. Signed by Judge James J. Brady on 06/06/2011. (NLT) (Entered: 06/06/2011)
59 RULING: The Court hereby GRANTS Defendants' Motion (doc. 52) to Remove Helen Pitts and Denise Hodges as Class Plaintiffs and to Dismiss All Pending Claims as they Relate to Plaintiffs Pitts and Hodges. Signed by Judge James J. Brady on 06/07/2011. (NLT) (Entered: 06/07/2011)
60 MOTION and Incorporated Memorandum to Shorten Time for Defendants' Responses to Discovery by All Plaintiffs. (Attachments: # 1 Attachment, # 2 Attachment, # 3 Proposed Order)(Hahn, Ellen) Modified on 6/8/2011 to edit text. (CMM) (Entered: 06/07/2011)
MOTION(S) REFERRED: 60 MOTION and Incorporated Memorandum to Shorten Time for Defendants' Responses to Discovery. This motion is now pending before the USMJ. (CMM) (Entered: 06/08/2011)

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06/23/2011
06/24/2011
06/27/2011 06/27/2011 06/27/2011 06/30/2011 06/30/2011 06/30/2011
07/13/2011 07/13/2011 07/13/2011 07/15/2011 07/15/2011
07/15/2011
07/27/2011 07/28/2011

61 Notice to Counsel: Telephone Status Conference set for 6/24/2011 at 03:00 PM before Magistrate Judge Stephen C. Riedlinger. The purpose of the conference is to discuss discovery issues and whether a scheduling order should be issued regarding class certification issues. (BNW) (Entered: 06/23/2011)
62 Minute Entry/ORDER for proceedings held before Magistrate Judge Stephen C. Riedlinger: Telephone Status Conference held on 6/24/2011. Counsel for defts do not oppose pltfs motion to file complaint in intervention. Therefore, IT IS ORDERED that 55 MOTION to Intervene is granted. Discovery was discussed. IT IS ORDERED that 60 Pltfs MOTION to Shorten Time for Defendants' Responses to Discovery is withdrawn. Entry of a scheduling order is deferred. IT IS ORDERED that this case is assigned for a Telephone Conference set for 7/14/2011 at 3:00 PM before Magistrate Judge Stephen C. Riedlinger. (JDL) (Entered: 06/27/2011)
63 COMPLAINT in Intervention, filed by Rickii Ainey, Kenneth Roman, Elizabeth Foster.(JDL) (Entered: 06/27/2011)
64 Unopposed MOTION for Protective Order by All Plaintiffs. (Attachments: # 1 Proposed order)(Hahn, Ellen) (Entered: 06/27/2011)
MOTION(S) REFERRED: 64 Unopposed MOTION for Protective Order. This motion is now pending before the USMJ. (JDL) (Entered: 06/28/2011)
65 Unopposed MOTION for Extension of Time to File Answer to 63 Intervenor Complaint by All Defendants. (Berns, Matthew) (Entered: 06/30/2011)
66 ORDER granting 64 Motion for Protective Order. Signed by Magistrate Judge Stephen C. Riedlinger on 6/29/2011. (LSM) (Entered: 06/30/2011)
67 ORDER granting 65 Motion for Extension of Time to Answer 63 Intervenor Complaint. Bruce Greenstein and Louisiana Department of Health and Hospitals answer due 7/27/2011. Signed by Magistrate Judge Stephen C. Riedlinger on 6/30/2011. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 06/30/2011)
68 Joint Motion to Postpone Scheduling Conference by All Parties. (Attachments: # 1 Proposed order)(Hahn, Ellen) Modified on 7/14/2011 to edit text. (CMM) (Entered: 07/13/2011)
MOTION(S) REFERRED: 68 MOTION to Continue Scheduling conference. This motion is now pending before the USMJ. (CMM) (Entered: 07/14/2011)
Motions No Longer Referred: 68 MOTION to Continue Scheduling conference. This motion is now pending before the USDJ. (CMM) (Entered: 07/15/2011)
MOTION(S) REFERRED: 68 MOTION to Continue Scheduling conference. This motion is now pending before the USMJ as per SCR. (CMM) (Entered: 07/15/2011)
69 ORDER granting 68 Motion to Continue Scheduling Conference. The telephone scheduling conference set for 07/14/2011 is continued to 07/28/2011 at 3:00 p.m. (Central time). Signed by Magistrate Judge Stephen C. Riedlinger on 07/15/2011. (NLT) (Entered: 07/15/2011)
Set/Reset Deadlines/Hearings: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) Telephone Conference set for 7/28/2011 at 03:00 PM before Magistrate Judge Stephen C. Riedlinger. (NLT) (Entered: 07/18/2011)
70 ANSWER to 63 Intervenor Complaint by Bruce Greenstein, Louisiana Department of Health and Hospitals.(Berns, Matthew) (Entered: 07/27/2011)
71 Minute Entry/Scheduling Order and Order Setting Status Conference for proceedings held before Magistrate Judge Stephen C. Riedlinger: Scheduling Conference held on 7/28/2011. All fact discovery shall be completed and motions to compel fact discovery shall be filed by 11/30/2011. Expert Witness List due by 1/31/2012 for the pltf and dft. Expert Reports due by 1/31/2012 for the pltf and dft. Discovery from Experts due by 2/29/2012. Dispositive motions shall be filed by

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08/02/2011 09/27/2011
09/28/2011 09/28/2011 09/30/2011 10/12/2011 10/13/2011 10/26/2011 10/27/2011 10/28/2011 11/14/2011 11/14/2011 11/15/2011 11/15/2011 11/15/2011

3/30/2012. Telephone Status Conference set for 11/17/2011 at 03:00 PM before Magistrate Judge Stephen C. Riedlinger. (CMM) (Entered: 07/29/2011)
72 TRANSCRIPT REQUEST by Bruce Greenstein, Louisiana Department of Health and Hospitals for proceedings held on April 20, 2011 before Judge Brady.. (Berns, Matthew) (Entered: 08/02/2011)
73 MOTION for Leave to File Motion for Leave to File Memorandum Exceeding Page Limit by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Motion for Preliminary Injunction, # 2 Proposed Pleading; Memorandum in Support, # 3 Exhibit, # 4 Exhibit List, # 5 Proposed Preliminary Injunction)(Hahn, Ellen) (Entered: 09/27/2011)
74 ORDER granting 73 MOTION for Leave to File Memorandum Exceeding Page Limit filed by Rickii Ainey, Kenneth Roman, Denise Hodges, Helen Pitts. Signed by Judge James J. Brady on 9/28/2011. (CMM) (Entered: 09/28/2011)
75 Motion for Preliminary Injunction filed by Rickii Ainey. (CMM) Modified on 9/28/2011 to edit text. (CMM) (Main Document 75 replaced on 9/29/2011) (CMM). Modified on 9/29/2011 to edit text. (CMM) (Entered: 09/28/2011)
76 NOTICE to Parties on 75 MOTION for Preliminary Injunction: Opposition(s) to the motion shall be filed on or before 10/20/2011. Any reply shall be filed within 15 days of the filing of the opposition. Signed by Judge James J. Brady on 9/28/2011. (JDL) (Entered: 09/30/2011)
77 Consent MOTION for Extension of Time to File Response to 75 MOTION for Preliminary Injunction by All Defendants. (Berns, Matthew) (Entered: 10/12/2011)
78 ORDER granting 77 Motion for Extension of Time to File Response to 75 MOTION for Preliminary Injunction. Oppositions shall be due on 10/28/2011. Replies due by 11/14/2011.. Signed by Judge James J. Brady on 10/13/2011. (LSM) (Entered: 10/13/2011)
79 Ex Parte MOTION for Philip Peisch to Appear Pro Hac Vice (Filing fee $40.00, Receipt Number 053N−738602) by All Defendants. (Attachments: # 1 Attachment Certificate of Good Standing, # 2 Affidavit Declaration, # 3 Attachment Proposed Order)(Elliott, Neal) (Entered: 10/26/2011)
80 ORDER granting 79 Motion for Philip Peisch to Appear Pro Hac Vice for all defendants. Signed by Magistrate Judge Stephen C. Riedlinger on 10/27/2011. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/27/2011)
81 RESPONSE in Opposition to 75 MOTION for Preliminary Injunction filed by All Defendants. (Attachments: # 1 Affidavit Third Declaration of Hugh R. Eley, # 2 Attachment Attachments A−H to Third Declaration of Hugh R. Eley)(Berns, Matthew) (Entered: 10/28/2011)
82 Joint MOTION for Extension of Discovery Deadlines by All Defendants. (Peisch, Philip) (Entered: 11/14/2011)
83 MOTION for Leave to File Reply Memorandum Exceeding Page Limit by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Reply to Response in Opposition to Motion for Preliminary Injunction, # 2 Exhibit List, # 3 Exhibit 19−44)(Hahn, Ellen) (Entered: 11/14/2011)
84 ORDER granting 83 MOTION for Leave to File Reply Memorandum Exceeding Page Limit filed by Rickii Ainey, Kenneth Roman, Denise Hodges, Helen Pitts. Signed by Judge James J. Brady on 11/15/11. (DCB) (Entered: 11/15/2011)
85 REPLY to 81 Response in Opposition to 75 MOTION for Preliminary Injunction filed by Rickii Ainey, Kenneth Roman. (DCB) (Entered: 11/15/2011)
86 AMENDED SCHEDULING ORDER granting 82 Motion to Extend Discovery Deadlines. All fact discovery and motions to compel discovery due by 2/17/2012. Expert Witness List due by 4/19/2012. Expert Reports due by 4/19/2012. Discovery from Experts due by 5/18/2012. Dispositive motions shall be filed by 6/18/2012.. Signed by Magistrate Judge Stephen C. Riedlinger on 11/15/2011.

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11/16/2011 11/18/2011 11/22/2011 11/30/2011 12/02/2011 12/06/2011 12/19/2011 01/09/2012 01/11/2012
01/12/2012
01/13/2012 01/25/2012

(CMM) (Entered: 11/15/2011)
87 MOTION for Oral Argument on 75 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Proposed order)(Hahn, Ellen) (Entered: 11/16/2011)
88 Status Conference Report/Order Setting Status Conference/Minute Entry for proceedings held before Magistrate Judge Stephen C. Riedlinger: Telephone Status Conference held on 11/18/2011. Telephone Status Conference set for 2/1/2012 at 09:30 AM before Magistrate Judge Stephen C. Riedlinger. (LSM) (Entered: 11/18/2011)
89 ORDER: IT IS HEREBY ORDERED that oral argument on Plaintiffs 75 Motion for Preliminary Injunction is hereby set for the 30th of November, 2011, at 11:00 a.m. in Courtroom One before Judge James J. Brady.. Signed by Judge James J. Brady on 11/30/2011. (CMM) (Entered: 11/22/2011)
90 Minute Entry for proceedings held before Judge James J. Brady: Motion Hearing held on 11/30/2011 re 75 MOTION for Preliminary Injunction filed by Rickii Ainey. Parties present argument. The court takes this matter under advisement and will issue a ruling shortly. (Court Reporter J. Francisco.) (SWE) (Entered: 12/01/2011)
91 ORDER: IT IS ORDERED that a conference be held on for Tuesday, December 6, 2011, at1:30 p.m. in chambers to resolve some of the issues in this matter.. Signed by Judge James J. Brady on 12/2/2011. (CMM) (Entered: 12/02/2011)
92 Notice to Counsel/Minute Entry for proceedings held before Judge James J. Brady: Status Conference held on 12/6/2011. Status Conference set for 12/19/2011 at 01:30 PM in chambers before Judge James J. Brady. (LSM) (Entered: 12/08/2011)
93 Minute Entry/Notice to Parties for proceedings held before Judge James J. Brady: Status Conference held on 12/19/2011. A hearing for preliminary approval set for 1/10/2012 at 02:00 PM in Courtroom 1 before Judge James J. Brady. (LSM) (Entered: 12/20/2011)
94 Notice to Counsel: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) At the joint request of the parties, the hearing for preliminary approval set for 1/10/2012 at 02:00 PM is RESCHEDULED for 1/12/2012 at 03:30 PM in Courtroom 1 before Judge James J. Brady. (SWE) (Entered: 01/09/2012)
95 Joint MOTION for Preliminary Approval of Class Settlement and to Redefine the Class and Incorporated Memorandum in Support by Rickii Ainey, Elizabeth Foster, Bruce Greenstein, Denise Hodges, Louisiana Department of Health and Hospitals, Helen Pitts, Kenneth Roman. (Attachments: # 1 Exhibit Proposed Settlement Agreement, # 2 Exhibit Proposed Notice)(Berns, Matthew) Modified on 1/11/2012 to edit text. (CMM) (Entered: 01/11/2012)
97 Minute Entry for proceedings held before Judge James J. Brady: Motion Hearing held on 1/12/2012 re 95 Joint MOTION for Preliminary Approval of Class Settlement and to Redefine the Class and Incorporated Memorandum in Support filed by Elizabeth Foster, Bruce Greenstein, Rickii Ainey, Kenneth Roman, Louisiana Department of Health and Hospitals, Denise Hodges, Helen Pitts. Counsel sworn and testify regarding settlement process and how notices will be published. Court signs order granting preliminary approval of Class Settlement. (Court Reporter J. Francisco.) (SWE) (Entered: 01/13/2012)
96 ORDER granting 95 Joint Motion for Preliminary Approval of Class Settlement and to Redefine the Class. Signed by Judge James J. Brady on 1/12/2012. (CMM) (Entered: 01/13/2012)
98 Joint MOTION for Discovery to Cancel Status Conference and Stay Discovery by Rickii Ainey, Elizabeth Foster, Bruce Greenstein, Denise Hodges, Louisiana Department of Health and Hospitals, Helen Pitts, Kenneth Roman. (Berns, Matthew) (Additional attachment(s) added on 1/25/2012: # 1 Proposed Pleading;) (LSM). (Entered: 01/25/2012)

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01/25/2012 02/15/2012 02/17/2012
02/17/2012
02/17/2012 01/18/2013 01/29/2013

99 ORDER granting the 98 Joint MOTION to Cancel Status Conference and Stay Discovery. The status conference set for 2/1/2012 is canceled and further discovery is stayed. Signed by Magistrate Judge Stephen C. Riedlinger on 1/25/2012. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 01/25/2012)
100 Joint MOTION for Order Approving Class Action Settlement and Ordering Compliance by All Plaintiffs. (Attachments: # 1 Attachment Settlement Agreement, # 2 Attachment Attorney Declarations, # 3 Memorandum in Support, # 4 Proposed Order)(Hahn, Ellen) Modified on 2/16/2012 to edit text. (CMM) (Entered: 02/15/2012)
101 ORDER granting 100 Motion for Order Approving Class Action Settlement and the parties shall comply with the terms of the Settlement Agreement and this Court will retain jurisdiction of this action for the purpose of ensuring that the agreement is enforced. FURTHER ORDERED that the defts Bruce Greenstein in his official capacity as Secretary of LADHH and the LADHH, shall pay the sum of $250,000.00 for attorneys fees and costs to the Advocacy Center by 2/27/2012. Signed by Judge James J. Brady on 2/17/2012. (JDL) (Entered: 02/17/2012)
102 Minute Entry for proceedings held before Judge James J. Brady: Motion Hearing held on 2/17/2012. Counsel for the plaintiff and counsel for the defendant are sworn. Counsel for the plaintiff explains the noticing process to the court. Exhibit 1, Proof of Publication, is filed into the record in globo. There are no objections to the settlement. The court finds that the method of noticing was in compliance with due process and there were good faith negotiations in the settlement process. The court approves the settlement as fair and reasonable and approves the attorney fees under the method previously submitted. The parties agree to the judgment and it is signed in open court. (Court Reporter S. Thompson.) (PJH) (Entered: 02/27/2012)
103 Exhibit List from hrg held 2/17/2012 on Motion for Order Approving Class Settlement − Joint 1 − Proof of publication (in globo)(PJH) (Additional attachment(s) added on 3/13/2012: # 1 First page of exhibit − Jt 1) (PJH). (Entered: 03/13/2012)
104 Joint MOTION to Dismiss by Rickii Ainey, Elizabeth Foster, Bruce Greenstein, Denise Hodges, Louisiana Department of Health and Hospitals, Helen Pitts, Kenneth Roman. (Berns, Matthew) (Entered: 01/18/2013)
105 ORDER granting 104 Joint Motion to Dismiss with prejudice. Signed by Judge James J. Brady on 1/28/2013. (JDL) (Entered: 01/29/2013)